1 This request for a preliminary ruling concerns the interpretation of Articles 5 to 9 of Regulation (EC) No 261/2004 of the European Parliament and the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
2 The request has been made in proceedings between WZ and Austrian Airlines AG concerning a claim for compensation for inconvenience resulting from the diversion of a flight to a destination airport which is not that for which the booking was made but which is situated in the same geographical area.
3 Recitals 1 to 4, 14 and 15 of Regulation No 261/2004 state: ‘(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general. (2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers. (3) While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport [(OJ 1991 L 36, p. 5)] created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays. (4) The Community should therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market. … (14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier. (15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.’
4 Under the heading ‘Definitions’, Article 2 of Regulation No 261/2004 provides: ‘For the purposes of this Regulation: … (h) “final destination” means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected; … (l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’
5 Article 4 of that regulation, entitled ‘Denied boarding’, provides in paragraph 3 thereof: ‘If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 and assist them in accordance with Articles 8 and 9.’
6 Article 5 of the regulation, under the heading ‘Cancellation’, provides in paragraphs 1 and 3 thereof: ‘1. In case of cancellation of a flight, the passengers concerned shall: (a) be offered assistance by the operating air carrier in accordance with Article 8; and (b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and (c) have the right to compensation by the operating air carrier in accordance with Article 7, unless: … (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival. … 3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’
7 Article 6 of Regulation No 261/2004, entitled ‘Delay’, provides: ‘1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure: (a) for two hours or more in the case of flights of 1500 kilometres or less; or (b) for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1500 and 3500 kilometres; or (c) for four hours or more in the case of all flights not falling under (a) or (b), passengers shall be offered by the operating air carrier: (i) the assistance specified in Article 9(1)(a) and 9(2); and (ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a). 2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket.’
8 Article 7 of that regulation, entitled ‘Right to compensation’, provides in paragraphs 1 and 2 thereof: ‘1. Where reference is made to this Article, passengers shall receive compensation amounting to: (a) EUR 250 for all flights of 1500 kilometres or less; (b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres; (c) EUR 600 for all flights not falling under (a) or (b). In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time. 2. When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked (a) by two hours, in respect of all flights of 1500 kilometres or less; or (b) by three hours, in respect of all intra-Community flights of more than 1500 kilometres and for all other flights between 1500 and 3500 kilometres; or (c) by four hours, in respect of all flights not falling under (a) or (b), the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.’
9 Article 8 of Regulation No 261/2004, entitled ‘Right to reimbursement or re-routing’, provides: ‘1. Where reference is made to this Article, passengers shall be offered the choice between: (a) - reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant, - a return flight to the first point of departure, at the earliest opportunity; (b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or (c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats. … 3. When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.’
10 Under Article 9(1) of Regulation No 261/2004, that article being entitled ‘Right to care’: ‘Where reference is made to this Article, passengers shall be offered free of charge: … (c) transport between the airport and place of accommodation (hotel or other).’
11 WZ made a single booking with Austrian Airlines for a journey consisting of two flights to take place on 21 May 2018, the first between Klagenfurt (Austria) and Vienna (Austria), scheduled to depart at 18.35 and arrive at 19.20, and the second between Vienna and Berlin (Germany), scheduled to depart at 21.00 and arrive at 22.20 at Berlin Tegel airport.
12 Since the meteorological conditions prevailing at aircraft turnaround three flights back in the rotation sequence of the aircraft due to carry out the flight between Vienna and Berlin caused a delay which had a knock-on effect on the subsequent flights by that aircraft, the flight booked by WZ took off from Vienna airport at 22.07 and, since it was unable to land at Berlin Tegel airport because of the prohibition on night flights in force, was diverted to Berlin Schönefeld airport, located in the Land of Brandenburg (Germany), near the Land of Berlin (Germany), where it landed at 23.18.
13 WZ brought an action before the Bezirksgericht Schwechat (District Court, Schwechat, Austria) seeking an order requiring Austrian Airlines to pay him the sum of EUR 250 by way of compensation under Article 5(1)(c) of Regulation No 261/2004, read in conjunction with Article 7(1) of that regulation. That claim was based on the delay in arrival of the flight (at 23.18 instead of 22.20) as well as on the fact that Austrian Airlines had failed to fulfil its obligation to offer him onward transport from Berlin Schönefeld airport to Berlin Tegel airport. According to WZ, Article 8(3) of that regulation is not applicable to his situation, since Berlin Schönefeld airport is not situated in the Land of Berlin.
14 In its defence, Austrian Airlines contended that the application should be dismissed, arguing (i) that WZ had reached his final destination with a delay of 58 minutes only, (ii) that WZ was able to return home, situated 24 km from Berlin Schönefeld airport, without difficulty using onward transport and (iii) that the delay was due to extraordinary circumstances, within the meaning of Article 5(3) of Regulation No 261/2004, namely significant meteorological problems prevailing at aircraft turnaround three flights back in the rotation sequence.
15 By judgment of 24 June 2019, the Bezirksgericht Schwechat (District Court, Schwechat) dismissed the action, holding (i) that the diversion of the flight at issue in the main proceedings did not constitute a significant change to the flight itinerary, with the result that the flight had to be regarded as having been delayed and not cancelled and (ii) that the delay was not three hours or more.
16 WZ brought an appeal against that judgment before the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria).
17 The referring court harbours doubts as to whether (i) the facts at issue in the main proceedings must be regarded either as a flight cancellation or delay or as a distinct category, (ii) whether Austrian Airlines can rely on extraordinary circumstances, within the meaning of Article 5(3) of Regulation No 261/2004, and (iii) whether that carrier is required to pay compensation for a possible breach of its obligations to provide assistance and care.
18 In those circumstances, the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that it is applicable to two airports which are both located in the immediate vicinity of a city centre, but only one of them is located in the territory of the city and the other is located in a neighbouring federal Land? (2) Are Article 5(1)(c), Article 7(1) and Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in the event that a flight lands at an alternative airport of destination in the same town, city or region, there is a right to compensation owing to cancellation of the flight? (3) Are Article 6(1), Article 7(1) and Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in the event that a flight lands at an alternative airport in the same town, city or region, there is a right to compensation owing to a long delay? (4) Are Articles 5, 7 and Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in order to determine whether a passenger has suffered a loss of time equal to or in excess of three hours within the meaning of the judgment [of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716)], the delay must be calculated on the basis of the point in time at which the flight lands at the alternative airport of destination or the point in time at which the passenger is transferred to the airport of destination for which the booking was made or to another close-by destination agreed with the passenger? (5) Is Article 5(3) of [Regulation No 261/2004] to be interpreted as meaning that an air carrier which operates flights as part of a flight rotation system may rely on an incident - specifically on a reduction of the arrival rate brought about by stormy weather conditions - which occurred in relation to the flight three flights back in the rotation sequence of the flight concerned? (6) Is Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in the event that a flight lands at an alternative airport of destination, the air carrier must take the initiative to offer transport to a different location, or the passenger must request the transport? (7) Are Article 7(1), Article 8(3) and Article 9(1)(c) of [Regulation No 261/2004] to be interpreted as meaning that the passenger has a right to compensation owing to a breach of the obligations to provide assistance and care provided for in Articles 8 and 9?’
19 By its first question, the referring court asks, in essence, whether Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that, where a flight is diverted to an airport serving the same city as the airport for which the booking was made, the bearing of the costs of transferring the passenger between the two airports, provided for in that provision, is subject to the condition that the first airport be located in the territory of the same town, of the same city or of the same region as the second airport.
20 In that regard, while Article 8(3) of Regulation No 261/2004 provides that the cost of transferring the passenger from the actual airport of arrival either to that for which the booking was made or to another close-by destination agreed between the operating air carrier and the passenger are to be borne ‘in the case where a town, city or region is served by several airports’, neither that provision nor Article 2 of that regulation, which defines a number of concepts for the purposes of that regulation, nor any other provision of that regulation specifies what is meant by ‘town, city or region … served by several airports’.
21 In addition, since Article 8(3) of Regulation No 261/2004 does not, for those concepts, make any reference to national law, they must be interpreted independently, so as to apply uniformly throughout the European Union (see, by analogy, judgment of 4 September 2014, Germanwings, C‑452/13, EU:C:2014:2141, paragraphs 16 and 17).
22 In that context, it should be recalled that the meaning and scope of terms for which EU law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 17).
23 As regards the usual meaning in everyday language of the words ‘town, city or region’, while it is true that, taken individually, those terms refer to territories the size of which is limited by borders that are defined by constitutional, legislative or regulatory rules of the State of which those territories form part, those terms, taken together in the form of a list and specified by the expression ‘served by several airports’, as set out in Article 8(3) of Regulation No 261/2004, must be understood as referring less to a specific infra-State territorial entity, of an administrative or even political nature, than to a territory characterised by the presence of airports which are in close proximity to that territory which they are intended to serve.
24 It follows that the fact that the actual airport of arrival and the airport of arrival for which the booking was made are situated in the territory of separate infra-State territorial entities is irrelevant for the purposes of the application of Article 8(3) of Regulation No 261/2004.
25 That interpretation is supported by the objectives pursued by Regulation No 261/2004.
26 Regulation No 261/2004, as is apparent from recitals 1, 2 and 4 thereof, seeks to ensure a high level of protection for passengers and consumers, by strengthening their rights in a number of situations involving serious trouble and inconvenience, and also redressing those situations in a standardised and immediate manner (see, to that effect, judgment of 22 June 2016, Mennens, C‑255/15, EU:C:2016:472, paragraph 26).
27 To adopt a restrictive interpretation of the terms ‘town, city or region’, like that advocated by the applicant in the main proceedings, to the effect that the actual airport of arrival and the airport of arrival for which the booking was made must be situated in the territory of the same town, of the same city or of the same region - each of those terms being understood as defined in national law - would deprive the passenger whose flight is diverted to an alternative airport which, while being situated near the airport for which the booking was made, is in the territory of another town, of another city or of another region from the right have the cost of transfer borne by the air carrier under Article 8(3) of Regulation No 261/2004 and would jeopardise, consequently, the objective pursued by that regulation to ensure a high level of protection for air passengers.
28 Moreover, according to recital 4 of Regulation No 261/2004, the objective of that regulation is also to ensure that air carriers operate under harmonised conditions in a liberalised market. Favouring the restrictive interpretation of the words ‘town, city or region’, as set out in the preceding paragraph, would have the consequence of making the operating air carrier’s obligation to bear the cost of transfer, under Article 8(3) of that regulation, subject to constitutional, legislative or regulatory rules specific to each Member State.
29 Finally, that same restrictive interpretation of the terms ‘town, city or region … served by several airports’ would render Article 8(3) of Regulation No 261/2004 redundant. It would be particularly difficult, if not impossible, for the operating air carrier to offer the passenger the diversion of a flight to an alternative airport situated outside the territory of the town, of the city or of the region where the airport of arrival for which the booking was made is situated, even though that alternative airport would be in close proximity to the territory of the town, of the city or of the region in which the airport for which the booking was made is situated.
30 In the light of the foregoing, the answer to the first question is that Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that, where a flight is diverted to an airport serving the same town as the airport for which the booking was made, the bearing of the cost of transferring the passenger between the two airports, provided for in that provision, is not subject to the condition that the first airport be situated in the territory of the same town, of the same city or of the same region as the second airport.
31 By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 5(1)(c), Article 7(1) and Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that a diverted flight landing at an airport which is not that for which the booking was made but which serves the same town, city or region is capable of conferring on the passenger a right to compensation for cancellation or long delay affecting that flight.
32 As a preliminary point, it should be noted that, in the order for reference, the referring court refers also to Article 6(1) of Regulation No 261/2004, concerning long delay of flights in departure. However, it is apparent from that order for reference that the referring court is in fact uncertain whether a diverted flight landing at an alternative airport in close proximity to the territory in which the airport of arrival for which the booking was made is situated is capable of conferring on the passenger concerned a right to compensation based either on flight cancellation, within the meaning of Article 5(1)(c) of that regulation, or on long delay in arrival of three hours or more, within the meaning of the judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716). Therefore, Article 6(1) of Regulation No 261/2004 is not relevant for the purpose of providing the referring court with an answer which will be of use to it in determining the dispute in the main proceedings.
33 That clarification having been made, it must be noted, in the first place, that Article 2(l) of Regulation No 261/2004 defines ‘cancellation’ as ‘the non-operation of a flight which was previously planned and on which at least one place was reserved’.
34 In that regard, the Court has held that a flight consists in an air transport operation, being as it were a ‘unit’ of such transport, performed by an air carrier which fixes its itinerary (judgment of 10 July 2008, Emirates Airlines, C‑173/07, EU:C:2008:400, paragraph 40). Moreover, it has specified that the itinerary is an essential element of the flight, as the flight is operated in accordance with the carrier’s pre‑arranged planning (judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 30).
35 As the term ‘itinerary’ thus means the journey to be made by aeroplane from the airport of departure to the airport of arrival according to a fixed schedule, it follows that, for a flight to be considered to have been operated, it is not enough that the aeroplane left in accordance with the scheduled itinerary, but it must also have reached its destination as appearing in the said itinerary (judgment of 13 October 2011, Sousa Rodríguez and Others, C‑83/10, EU:C:2011:652, paragraph 28).
36 Thus, a flight cannot be considered to have been operated if it has been diverted to an airport which is not that for which the booking was made, with the result that that flight must, as a rule, be regarded as a cancelled flight, within the meaning of Article 2(l) of Regulation No 261/2004, capable of conferring entitlement to compensation under Article 5(1)(c) in conjunction with Article 7 of that regulation.
37 However, in the particular case where the airport to which the flight was diverted serves the same town, city or region as the destination airport for which the booking was made, it would be consistent neither with the purpose of that regulation nor with the principle of equal treatment to treat the diversion of a flight in the same way as a cancellation of the flight.
38 It should be noted that, in addition to the main objective pursued by Regulation No 261/2004, which is, as noted in paragraph 26 above, to ensure a high level of protection for passengers and consumers, that regulation also pursues implicit secondary objectives, which include reducing, through preventive action, the number of flights that are cancelled (see, to that effect, judgment of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 83).
39 Furthermore, it should be added that, with the adoption of Regulation No 261/2004, the legislature also sought to strike a balance between the interests of air passengers and those of air carriers (judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 67, and of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 39).
40 In that context, it is important to note that Article 8(3) of Regulation No 261/2004, read in the light of recitals 1 to 4 thereof, pursues a specific objective in that it seeks to prevent the occurrence of serious trouble and inconvenience which a passenger might suffer in the event of cancellation of the flight, and not to grant compensation for the consequences of that inconvenience, by discouraging the operating air carrier from cancelling the flight and by granting it a certain degree of flexibility to offer the passenger re-routing to his or her final destination by diverting the flight to an alternative airport serving the same town, city or region as well to bear the cost of the transfer from that airport either to the destination airport for which the booking was made or to another close-by destination agreed with the passenger.
41 Moreover, it is settled case-law that all EU acts must be interpreted in accordance with primary law as a whole, including the principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 48).
42 It would be contrary to the principle of equal treatment to treat a flight diverted to an airport which is not that for which the booking was made but which serves the same town, city or region in the same way as a cancelled flight. Such treatment would, as the Advocate General observed in points 59 and 60 of his Opinion, result in conferring on the passenger of that flight a right to compensation under Article 5(1)(c) and Article 7 of Regulation No 261/2004, including where, at the end of the transfer, the passenger would arrive at the airport for which the booking was made or at any other destination agreed with a delay of less than three hours, while refusing that right to compensation to a passenger whose flight landed at the airport for which the booking was made, even though the latter passenger would have suffered an inconvenience similar to that of the former passenger.
43 By contrast, in the second place, serious trouble and inconvenience arise where a passenger on a flight diverted to an alternative airport serving the same town, city or region incurs a long delay in arrival and reaches his or her final destination with a delay of three hours or more beyond the original planned arrival time. In that case, the passenger, as a rule, is entitled to compensation under Regulation No 261/2004 where the passenger incurs a long delay in arrival of three hours or more, within the meaning of the judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716).
44 In the light of the foregoing, the answer to the second and third questions is that Article 5(1)(c), Article 7(1) and Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that a diverted flight landing at an airport which is not that for which the booking was made but which serves the same town, city or region is not capable of conferring on the passenger a right to compensation for cancellation of a flight. However, a passenger of a flight diverted to an alternative airport serving the same town, city or region as the airport for which the booking was made is entitled, as a rule, to compensation under that regulation when the passenger reaches his or her final destination three hours or more after the arrival time originally planned by the operating air carrier.
45 By its fourth question, the referring court asks, in essence, whether Articles 5 and 7 as well as Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that, for the purposes of determining the extent of the delay in arrival incurred by a passenger of a diverted flight which landed at an airport which is not that for which the booking was made but which serves the same town, city or region, it is necessary to take as a reference the time of arrival at the alternative airport or the time of arrival, after the transfer, either at the airport for which the booking was made or, as the case may be, at another close-by destination agreed with the operating air carrier.
46 In the first place, it is apparent from the wording of Article 5(1)(c) as well as Articles 7 and 8 of Regulation No 261/2004 that those provisions refer to the concept of ‘final destination’, which is defined in Article 2(h) of that regulation as meaning the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight.
47 In the second place, the Court has stated that, since the inconvenience, constituted by the loss of time, materialises upon arrival at the final destination, the extent of the delay must be assessed, for the purposes of the compensation laid down in Article 7 of Regulation No 261/2004, in relation to the scheduled arrival time at that destination (judgment of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraph 33 and the case-law cited), it being specified that that is the time which is fixed in the flight schedule and indicated on the ticket held by the passenger concerned (order of 1 October 2020, FP Passenger Services, C‑654/19, EU:C:2020:770, paragraph 25).
48 Therefore, in order to determine the extent of the delay in arrival incurred by a passenger of a diverted flight which landed at an airport which is not that for which the booking was made but which serves the same town, city or region, it is necessary to refer to the time at which the passenger reaches, at the end of the transfer, either the airport for which the booking was made or, as the case may be, another close-by destination agreed with the operating air carrier.
49 In the light of the foregoing, Articles 5 and 7 as well as Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that, for the purposes of determining the extent of the delay in arrival incurred by a passenger on a diverted flight which landed at an airport which is not that for which the booking was made but which serves the same town, city or region, it is necessary to take as a reference the time at which the passenger actually reaches, at the end of the transfer, either the airport for which the booking was made or, as the case may be, another close-by destination agreed with the operating air carrier.
50 By its fifth question, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that, in order to be released from its obligation to pay compensation to passengers in the event of long delay of flights in arrival, an operating air carrier may rely on an extraordinary circumstance which affected not that delayed flight but a previous flight operated by that carrier using the same aircraft at aircraft turnaround three flights back in the rotation sequence of that aircraft.
51 As a preliminary point, it should be noted that the extent of the delay in arrival at issue in the main proceedings is not clearly apparent from the documents before the Court. In those circumstances, and without prejudice to the determination, by the referring court, of that extent in view of the answer to the fourth question, the answer to the fifth question must be based on the premiss that the flight was subject to a long delay.
52 It should be borne in mind that, as noted in Article 5(3) of Regulation No 261/2004, the air carrier may be released from its obligation to pay compensation to the passengers under Article 5(1) and Article 7 of Regulation No 261/2004 if it can prove, inter alia, that the cancellation or long delay of the flight concerned is caused by ‘extraordinary circumstances’.
53 In that regard, it should be noted, first, that neither recitals 14 and 15 of Regulation No 261/2004 nor Article 5(3) of that regulation limit the right of an operating air carrier to rely on an ‘extraordinary circumstance’ to situations where that circumstance affected the delayed or cancelled flight, to the exclusion of the situation where that circumstance affected a previous flight operated by the same aircraft (judgment of 11 June 2020, Transportes Aéreos Portugueses, C‑74/19, EU:C:2020:460, paragraph 51).
54 Secondly, the balancing of the interests of air passengers and those of air carriers, which, as has been noted in paragraph 39 above, led to the adoption of Regulation No 261/2004, implies that account must be taken of the way in which aircraft are operated by air carriers and, in particular, of the fact that the same aircraft may carry out several successive flights on the same day, which means that any extraordinary circumstances affecting that aircraft on a previous flight affects the subsequent flight or flights of that aircraft (judgment of 11 June 2020, Transportes Aéreos Portugueses, C‑74/19, EU:C:2020:460, paragraph 52).
55 Therefore, an operating air carrier must be able to rely on an ‘extraordinary circumstance’ affecting a previous flight which it operates with the same aircraft in the context of aircraft turnaround three flights back in the rotation sequence of that aircraft, in order to be released from its obligation to pay compensation to passengers in the event of long delay or cancellation of a flight (see, by analogy, judgment of 11 June 2020, Transportes Aéreos Portugueses, C‑74/19, EU:C:2020:460, paragraph 53).
56 However, and taking into account not only the objective referred to in recital 1 of Regulation No 261/2004 to ensure a high level of protection for passengers, but also the wording of Article 5(3) of that regulation, reliance on such an extraordinary circumstance presupposes that there is a direct causal link between the occurrence of that circumstance which affected a previous flight and the delay or cancellation of a subsequent flight, which is for the national court to determine in the light of the facts available to it and taking into account, inter alia, the way in which the aircraft concerned is operated (see, to that effect, judgment of 11 June 2020, Transportes Aéreos Portugueses, C‑74/19, EU:C:2020:460, paragraph 54).
57 In the light of the foregoing, the answer to the fifth question is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that, in order to be released from its obligation to pay compensation to passengers in the event of long delay of flights in arrival, an operating air carrier may rely on an extraordinary circumstance which affected not that delayed flight but a previous flight operated by that carrier using the same aircraft at aircraft turnaround three flights back in the rotation sequence of that aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the long delay of a subsequent flight in arrival, which is for the national court to determine, taking into account, inter alia, the way in which the aircraft at issue is operated by the operating air carrier concerned.
58 By its sixth question, the referring court asks whether Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that, where a diverted flight lands at an airport which is not that for which the booking was made but which serves the same town, city or region, the operating air carrier must on its own initiative offer the passenger to bear the cost of transfer either to the destination airport for which the booking was made or, as the case may be, to another close-by destination agreed with the passenger.
59 It must be borne in mind that, according to the very wording of Article 8(3) of Regulation No 261/2004, when, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier is to bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.
60 While it follows expressly from the wording of that provision that that provision confers on passengers a right to have the cost of transfer borne by the operating air carrier, the wording does not, however, as the Advocate General observed in point 63 of his Opinion, provide any indication as to whether it is for that carrier to offer, on its own initiative, to the passenger to bear the said cost of transfer.
61 However, it is settled case-law that the provisions conferring rights on air passengers must be interpreted broadly (judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 45).
62 Moreover, account should be taken, for the purposes of that interpretation, of the objective of Regulation No 261/2004, as recalled in paragraph 26 above, which is to ensure a high level of protection for passengers.
63 Thus, Article 8(3) of Regulation No 261/2004, read in the light of recitals 1 and 2 of that regulation, must be interpreted as meaning that it is for the operating air carrier which offered the passenger a flight to an airport which is not that for which the booking was made but which serves the same city, town or region to bear, on its own initiative, the cost of transferring that passenger from the airport of arrival either to the airport for which the booking was made or to another close-by destination agreed with the passenger.
64 The diversion of a flight to an airport which is not that for which the booking was made but which serves the same town, city or region is likely to cause inconvenience to the passengers concerned where, in particular, the transfer to the airport for which the booking was made may prove to be costly and complex to organise, either because the alternative airport is, as such, less well served than the destination airport for which the booking was made or because the late landing of the diverted flight has the effect of limiting the transport available for the transfer to take place.
65 Moreover, that interpretation respects the balancing of the interests of air passengers and those of the operating air carriers, which, as noted in paragraph 39 above, led to the adoption of Regulation No 261/2004. While guaranteeing to the former that after landing at the alternative airport they will be transported either to the airport for which the booking was made or to another close-by destination agreed with the operating air carrier, it enables the latter to avoid the obligation to pay the compensation referred to in Article 7 of that regulation by ensuring that passengers can reach either the airport for which the booking was made or another close-by destination agreed with the operating air carrier without being subject to a delay of three hours or more beyond the original planned arrival time.
66 In the light of the foregoing, the answer to the sixth question is that Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that, where a diverted flight lands at an airport which is not that for which the booking was made but which serves the same town, city or region, the operating air carrier must on its own initiative offer the passenger to bear the cost of transfer either to the destination airport for which the booking was made or, as the case may be, to another close-by destination agreed with the passenger.
67 By its seventh question, the referring court asks, in essence, whether Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that breach of the operating air carrier’s obligations to provide assistance and care, laid down in that provision, is capable of conferring a right to flat-rate compensation under Article 7(1) of that regulation.
68 As a preliminary point, it should be noted that, in the order for reference, the referring court also refers to Article 9(1)(c) of Regulation No 261/2004, which provides that passengers are to be offered free of charge transport between the airport and the place of accommodation where reference is made in that regulation to that provision, that is to say, where the conditions laid down in Article 4(3) or Article 5(1)(b) or Article 6(1)(ii) of that regulation are met. However, it is apparent from the order for reference that the referring court is in fact uncertain whether breach by the operating air carrier of its obligation to bear the cost of transferring the passenger from the airport of arrival either to the airport for which the booking was made or to another close-by destination agreed with the passenger, provided for in Article 8(3) of Regulation No 261/2004, is capable of conferring a right to flat-rate compensation under Article 7(1) of that regulation.
69 In the first place, it should be borne in mind that where a carrier fails to fulfil its obligations under Article 8 of Regulation No 261/2004, air passengers are justified in claiming a right to compensation (see, to that effect, judgment of 13 October 2011, Sousa Rodríguez and Others, C‑83/10, EU:C:2011:652, paragraph 44).
70 In the second place, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Article 5(1)(b) and Article 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, would prove necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger (judgment of 31 January 2013, Mc Donaugh, C‑12/11, EU:C:2013:43, paragraph 51).
71 Thus, as noted by the Advocate General in point 77 of his Opinion, there must be a correlation between the compensation payable by the operating air carrier and the costs incurred by the passenger concerned, which necessarily rules out the flat-rate compensation provided for in Article 7(1) of Regulation No 261/2004.
72 It follows from the foregoing that breach of the obligation to bear the cost of transfer from the actual airport of arrival either to that for which the booking was made or to another close-by destination agreed with the passenger, provided for in Article 8(3) of Regulation No 261/2004, confers a right, for the benefit of the passenger, to reimbursement of the amounts which, in the light of the particular circumstances of the case, would prove necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger.
73 In the light of the foregoing, the answer to the seventh question is that Article 8(3) of Regulation No 261/2004 must be interpreted as meaning that breach by the operating air carrier of its obligation to bear the cost of transferring the passenger from the airport of arrival either to the airport for which the booking was made or to another destination agreed with the passenger does not confer on the latter a right to flat-rate compensation under Article 7(1) of that regulation. By contrast, that breach gives rise, for the benefit of the passenger, to a right to reimbursement of the amounts incurred by him or her and which, in the light of the specific circumstances of each case, prove necessary, appropriate and reasonable to remedy the shortcomings of the air carrier.
74 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.