1 These requests for a preliminary ruling concern the interpretation of Article 2(j), Article 4 and Article 7(1) of Regulation (EC) No 261/2004 of the European Parliament and of 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 requests have been made in proceedings between, in Case C‑650/23, E EAD (‘E’), an air carrier, and an air passenger, and, in Case C‑705/23, Flightright GmbH, a legal assistance company to which two air passengers have assigned any rights to compensation, and Condor Flugdienst GmbH (‘Condor’), an air carrier, concerning compensation for those passengers pursuant to Regulation No 261/2004.
3 Recital 1 of Regulation No 261/2004 states: ‘Action by the [European] 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.’
4 Article 2 of that regulation, entitled ‘Definitions’, provides: ‘For the purposes of this Regulation: … (b) “operating air carrier” means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger; … (d) “tour operator” means, with the exception of an air carrier, an organiser within the meaning of Article 2, point 2, of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours [(OJ 1990 L 158, p. 59)]; … (g) “reservation” means the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator; … (j) “denied boarding” means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation; … (l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’
5 Under Article 3 of that regulation, entitled ‘Scope’: ‘1. This Regulation shall apply: (a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies; … 2. Paragraph 1 shall apply on the condition that passengers: (a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in, - as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, - not later than 45 minutes before the published departure time; or (b) have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason. … 6. This Regulation shall not affect the rights of passengers under Directive [90/314]. This Regulation shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight.’
6 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.’
7 Article 5 of Regulation No 261/2004, entitled ‘Cancellation’, sets out, in paragraph 1(c) thereof: ‘In case of cancellation of a flight, the passengers concerned shall: … (c) have the right to compensation by the operating air carrier in accordance with Article 7, unless: (i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or (ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or (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.’
8 Article 7 of that regulation, entitled ‘Right to compensation’, provides, in paragraph 1 thereof: ‘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; …’
9 Under Article 13 of that regulation, entitled ‘Right of redress’: ‘In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. Similarly, no provision of this Regulation may be interpreted as restricting the right of a tour operator or a third party, other than a passenger, with whom an operating air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.’
10 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1), defines, in point 8 of Article 3 thereof, the ‘organiser’ as ‘a trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader, or the trader who transmits the traveller’s data to another trader in accordance with point (b)(v) of point 2’.
11 Article 14(5) of that directive provides: ‘Any right to compensation or price reduction under this Directive shall not affect the rights of travellers under Regulation [No 261/2004] … and under international conventions. Travellers shall be entitled to present claims under this Directive and under those Regulations and international conventions. Compensation or price reduction granted under this Directive and the compensation or price reduction granted under those Regulations and international conventions shall be deducted from each other in order to avoid overcompensation.’
12 In accordance with Article 29 of that directive, references to Directive 90/314, which was repealed by Directive 2015/2302, must be construed as references to that latter directive.
13 An air passenger, DW, had his (return) flight from Heraklion (Greece) to Linz (Austria) confirmed by the tour operator with whom he had booked a package holiday. Scheduled for 29 September 2019, that return flight should have been operated by E and taken off from Heraklion at 18.00 to arrive in Linz at 20.00 (‘the originally planned return flight’).
14 On 28 September 2019, that passenger received notification from the tour operator changing the times and destination of his return flight. That notification informed him that that flight’s final destination was now Vienna-Schwechat (Austria) and that the departure was scheduled for 29 September 2019 at 23.30. There is no indication that that notification was attributable to any conduct on the part of E.
15 E, which is a member of the International Air Transport Association (IATA) is a charterer and for that reason does not reserve flights itself. Approximately 24 hours before departure, it received a list of passengers with the forenames and surnames of all passengers to be carried; it was not provided with other contact details by the tour operator. DW’s name did not appear on that list.
16 In view of the notification of 28 September 2019, DW did not present himself for check-in for the originally planned return flight.
17 On the basis of Article 7(1)(b) of Regulation No 261/2004, DW claimed compensation of EUR 400, plus interest, from E. DW takes the view that, if the tour operator is authorised to issue an air ticket on behalf of the air carrier, nothing to the contrary could apply to any subsequent changes of his reservation. He cannot, in that regard, be criticised for not having presented himself for check-in for the originally planned return flight, since he had been notified of his transfer to another flight. He was thereby denied boarding, against his will, from the moment when his reservation had been changed, with the result that DW should be entitled to a right to compensation.
18 E contends, for its part, that the originally planned return flight had, to a large extent, been operated as scheduled and that the tour operator changed DW’s reservation without consulting it. That change of reservation could therefore not be put forward to establish denied boarding, which is attributable to the air carrier. Moreover, DW could not rely on a right to compensation, since he did not present himself in good time for check-in. Inasmuch as he had a confirmed reservation for the originally planned return flight, he would have been carried if he had presented himself for boarding in good time, notwithstanding the change of that reservation.
19 By a judgment of 27 March 2023, the Bezirksgericht Schwechat (District Court, Schwechat, Austria) ordered E to pay DW the sum of EUR 400, plus interest, and to bear DW’s costs. According to that court, the change of reservation must be attributable to E, without it being necessary to ascertain whether the air carrier or the tour operator made that change. It takes the view that the fact that DW, who had been notified by the tour operator of his transfer to another flight did not present himself for check-in in good time has no bearing on the right to compensation which DW relies on in respect of denied boarding. It is irrelevant, in that regard, that E had or did not have a direct contractual relationship with DW or that it can itself change the reservations of passengers or issue air tickets, since it can, in particular, make a claim against the tour operator, in accordance with Article 13 of Regulation No 261/2004. Lastly, that court stated that the air carrier had not claimed that there were ‘reasonable grounds to deny boarding’, within the meaning of Article 2(j) of that regulation.
20 E brought an appeal against that decision before the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), the referring court. In support of that appeal, it argues, in essence, that denied boarding is not established and that the change of reservation by the tour operator is not attributable to it.
21 According to that court, it follows from Article 4(3) of Regulation No 261/2004 that, where boarding is denied, the operating air carrier must compensate the passenger in accordance with Article 7 of that regulation. That court states, in that respect, that, according to its own case-law, passengers are exempt from their obligation to present themselves for boarding in good time in the event of pre-emptive denied boarding, in other words, where those passengers have been informed in advance, whether accurately or not, that they will not be carried on the booked flight or that that flight will not take place, subject to those passengers having a confirmed reservation and there being no reasonable grounds for denied boarding. Passengers cannot be required to present themselves for a flight they will not be taking.
22 It follows from the judgment of 21 December 2021, Azurair and Others (C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraph 47 et seq.) that a passenger has a ‘confirmed reservation’, within the meaning of Article 3(2)(a) of Regulation No 261/2004, where the tour operator with whom he or she has a contract, submits ‘other proof’ to that passenger, within the meaning of Article 2(g) of that regulation, by which he or she is assured carriage on a particular flight, individualised by points of departure and destination, times of departure and arrival, and the flight number, including where that tour operator has not received confirmation from the air carrier concerned as to the times of departure and arrival of that flight. Therefore, the risk that tour operators provide false information to passengers in the course of their activities is assumed by the air carrier. The referring court is uncertain, however, whether that approach, which consists in holding the air carrier responsible for acts of the tour operator, may apply where, as in the present case, that tour operator, which is not subject to instructions from that carrier, changes a reservation which it has made itself.
23 In those circumstances, the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 7(1), Article 4(3) and Article 2(j) of Regulation [No 261/2004] be interpreted as meaning that the operating air carrier is obliged to compensate a passenger in the case where, in the context of a package tour, the passenger has a confirmed reservation by a tour operator on a return flight, the tour operator informed the passenger on the day before the planned (return) flight that the flight had been rescheduled due to a change in flight number, flight time and final destination; the passenger therefore did not present himself or herself for boarding for the flight originally booked under the conditions laid down in Article 3(2) of [that] regulation …; however, the flight originally booked actually operated as planned and the air carrier would also have carried the passenger if he or she had presented himself or herself for boarding under the conditions laid down in Article 3(2) of [that] regulation …?’
24 Two air passengers had booked, through a tour operator, a package tour for the period from 18 July 2020 to 30 July 2020. That package tour included outbound and return flights between Düsseldorf (Germany) and Fuerteventura (Spain) which were to be operated by Condor.
25 Those two passengers were notified by the tour operator that the outbound flight had been cancelled and that their booking had been changed, with departure scheduled for 20 July 2020. Following that notification, those passengers did not present themselves at the airport on 18 July 2020 but only on 20 July 2020. They also claim that the tour operator provided them with that information only eight days before the date of the outbound flight.
26 Condor disputes this account of the facts and states that the original flight of 18 July 2020 was duly operated.
27 The two passengers at issue assigned their rights to Flightright, a legal assistance company, which brought an action before the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany) seeking payment of compensation totalling EUR 800 on the basis of Article 4(3) and Article 7(1)(b) of Regulation No 261/2004 and Paragraph 398 of the Bürgerliches Gesetzbuch (Civil Code).
28 Flightright argues that the air carrier must be held responsible for the conduct of the tour operator and that that conduct constitutes pre-emptive denied boarding by the air carrier.
29 Condor contends, on the other hand, that there was no denied boarding in the present case, since it duly operated the original flight. Moreover, according to Condor, denied boarding requires conduct on the part of the air carrier. In the present case, the notification changing the date of the outbound flight was made by the tour operator.
30 The Amtsgericht Düsseldorf (Local Court, Düsseldorf) dismissed Flightright’s claims by a judgment of 3 November 2022, and that company brought an appeal before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), the referring court.
31 That court takes the view that the present case raises the novel question of whether pre-emptive denied boarding made by the tour operator constitutes ‘denied boarding’ within the meaning of Article 4 of Regulation No 261/2004, it being noted that no reason justifying denied boarding, such as provided for in Article 2(j) of that regulation, is apparent in the present case. Furthermore, since the judgment of 26 October 2023, LATAM Airlines Group (C‑238/22, EU:C:2023:815, paragraph 40 et seq.) has ruled out an application by analogy of Article 5(1)(c)(i) to (iii) of that regulation concerning flight cancellations and denied boarding, it is not necessary to examine whether the two passengers had been notified in advance of the change of reservation more than eight days before the date of the flight.
32 In addition, the referring court infers from the judgment of 21 December 2021, Azurair and Others (C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038), that, in the circumstances of the case in the main proceedings, those two passengers were deemed to have a ‘confirmed reservation’ within the meaning of Article 3(2)(a) of Regulation No 261/2004.
33 That court considers that pre-emptive denied boarding by means of notification of a change of reservation or of its cancellation by the tour operator may constitute ‘denied boarding’ within the meaning of Article 4 of Regulation No 261/2004. In favour of an affirmative answer it might be argued that, unlike in the Spanish- and French-language versions of that provision, which expressly name the air carrier as the entity denying passengers boarding, many other language versions, in particular, the Danish, German, English, Italian, Dutch, Portuguese and Swedish versions leave it open as to who gives rise to the denial.
34 Moreover, for a passenger who has not consented to a change of his or her reservation, such a change would be tantamount to denied boarding of the originally planned flight. It might therefore be necessary to include a change of reservation among the events constituting denied boarding in order to protect passengers whose flight forms part of a package from being deprived of the protection afforded by Regulation No 261/2004.
35 Lastly, it follows from the judgment of 21 December 2021, Azurair and Others (C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraphs 46 to 51) that a ‘confirmed reservation’, within the meaning of Article 3(2)(a) of Regulation No 261/2004, may be issued by the tour operator, even where the air carrier has not confirmed the flight times concerned to that tour operator and there is therefore no ‘cover booking’. That regulation seeks to ensure that the risk of tour operators providing false information to passengers in the course of their activities is assumed by the air carrier. From that point of view, passengers do not participate in the relationship between air carriers and tour operators and cannot be required to obtain information in that regard.
36 For the referring court, the interpretation adopted in that judgment is transposable to a change of the passenger’s reservation made by the tour operator due to a ‘flight cancellation’.
37 In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 4 of Regulation [No 261/2004] to be interpreted as meaning that there is a case of denied boarding of a passenger by an air carrier in the form of pre-emptive denied boarding in the case where a tour operator informs the passenger, by means of notification of a change of reservation, that the flight has been cancelled, but the flight has not been cancelled by the air carrier and, moreover, the flight is actually duly performed as anticipated?’
38 By their respective questions, which it is appropriate to consider together, the referring courts ask, in essence, whether Article 4(3) of Regulation No 261/2004, read in combination with Article 2(j) thereof, must be interpreted as meaning that an air passenger who, in the context of a package tour, had a confirmed reservation for a flight, may seek compensation from the operating air carrier as provided for in Article 7(1) of that regulation where the operator of that tour, without informing that carrier in advance, notified that passenger that the originally planned flight would not be performed, whereas that flight was operated as planned.
39 At the outset, it should be borne in mind, first, that, in connection with a package tour, air passengers may freely choose to rely on Regulation No 261/2004. Their legal protection cannot be guaranteed exclusively by Directive 2015/2302 (see, to that effect, judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraph 35). From that point of view, Article 3(6) of that regulation stipulates, inter alia, that that ‘regulation shall not affect the rights of passengers under Directive [90/314 replaced by Directive 2015/2302]’. By parity of reason, Article 14(5) of that directive expressly states that compensation or price reduction granted under that directive and the compensation or price reduction granted, in particular, under Regulation No 261/2004 are to be deducted from each other in order to avoid overcompensation.
40 It therefore follows from Article 3(6) of that regulation and Article 14(5) of Directive 2015/2302, that the respective scopes of those two acts of secondary legislation may overlap. In such a case, those provisions set as a limit to their combined application the refusal to overcompensate the harm suffered by the passenger.
41 Secondly, it is clear from the two requests for a preliminary ruling that the two flights which give rise to the disputes in the main proceedings were operated as planned. It follows that neither of the two flights at issue can be regarded as having been cancelled, since 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’. The notifications sent by the tour operators to the passengers at issue in the two cases in the main proceedings must therefore be understood in the light of the concept of ‘denied boarding’, within the meaning of Article 2(j) of that regulation.
42 That being said, it should be determined, first, whether that concept of ‘denied boarding’ includes pre-emptive denied boarding of a flight which was, however, operated and, secondly, whether the air carrier may be held responsible for incorrect information relating to the postponement or the cancellation of a flight of which the tour operator informed the passengers.
43 In the first place, it follows from the judgment of 26 October 2023, LATAM Airlines Group (C‑238/22, EU:C:2023:815, paragraph 39), that Article 4(3) of Regulation No 261/2004, read in conjunction with Article 2(j) thereof, must be interpreted as meaning that an operating air carrier which has informed a passenger in advance that, against that passenger’s will, it is going to deny him or her boarding in respect of a flight for which he or she has a confirmed reservation, must compensate that passenger, even if he or she did not present himself or herself for boarding under the conditions set out in Article 3(2) of that regulation.
44 The fact the information relating to denied boarding was communicated in advance to the passenger not by the operating air carrier, but by the tour operator, cannot lead to a different interpretation of those provisions.
45 In the second place, it follows from the case-law of the Court that the operating air carrier can be held responsible for incorrect information relating to the postponement or cancellation of a flight which the tour operator communicated to passengers.
46 First, a number of provisions of Regulation No 261/2004, for the purposes of their application, make no distinction between operating air carriers and tour operators. That is true, inter alia, as regards Article 2(g) of that regulation which defines the concept of ‘reservation’ as ‘the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator’. That is also the case with regard to the first indent of Article 3(2)(a) of that regulation, which provides that the time at which passengers should present themselves for check-in may be communicated by the air carrier, a tour operator or an authorised travel agent. That is again the case as regards Article 3(2)(b) of that regulation, according to which passengers may be transferred to another flight by either the air carrier or the tour operator (see, to that effect, judgment of 21 December 2021, Azurair and Others, C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraph 47).
47 It accordingly follows from that judgment that, in connection with Article 3(2)(a) and (b) of Regulation No 261/2004, air passengers may rely without distinction on information provided by the operating air carrier or by the tour operator concerning the time of boarding or their transfer to another flight.
48 Secondly, such an interpretation contributes to ensuring a high level of protection for air passengers, as stated in recital 1 of Regulation No 261/2004. From that point of view, that regulation seeks to ensure that the risk of tour operators providing false information to passengers in the course of their activities is assumed by the air carrier. Passengers not participating in the relationship between air carriers and tour operators cannot be required to obtain information in that regard (see, to that effect, judgment of 21 December 2021, Azurair and Others, C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraphs 48 and 49).
49 In any event, it should be borne in mind that, in cases where the operating air carrier is required to pay compensation to passengers pursuant to Regulation No 261/2004 due to the conduct of the tour operator, that carrier may have the possibility of seeking compensation from the tour operator for any damage suffered in accordance with Article 13 of that regulation. Such compensation may accordingly reduce or even remove the financial burden borne by the carrier as a result of that obligation (see, to that effect, judgments of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 90; of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 68; and of 21 December 2021, Azurair and Others, C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraph 61).
50 Moreover, the argument raised by E, alleging that the judgment of 4 July 2018, Wirth and Others (C‑532/17, EU:C:2018:527) was applicable by analogy, must be disregarded. E claims, in that regard, that, like the lessor in the case of a lease of aircraft including crew (‘wet lease’), a charter company, such as that air carrier, has no operational decision-making powers as to whether the flight will be carried out, when it will be carried out and with which passengers.
51 In that respect, it suffices to recall that it follows from the case-law of the Court that an air carrier which has made an offer of air carriage which corresponds to the offer referred to by a tour operator in its relationship with a passenger, even though changes may be made to that offer, must be regarded as having ‘intended to perform a flight’ within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it may be classified as an ‘operating air carrier’ within the meaning of that provision (see, to that effect, judgment of 21 December 2021, Azurair and Others, C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraphs 59 and 62, and order of 10 March 2023, Eurowings (Non-existent flight), C‑607/22, EU:C:2023:201, paragraph 21).
52 Furthermore, E’s argument seeks, in fact, to deny the status of ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004, to the air carrier used by the tour operator. Article 2(d) of that regulation defines ‘tour operator’ as an organiser within the meaning of point 8 of Article 3 of Directive 2015/2302, ‘with the exception of an air carrier’. Therefore, to follow E’s reasoning would lead to the paradoxical result that a charter flight would not be provided by an operating air carrier, since that status would then be recognised neither by the charter company nor by the tour operator.
53 In the light of the foregoing considerations, the answer to the questions referred is that Article 4(3) of Regulation No 261/2004, read in combination with Article 2(j) thereof, must be interpreted as meaning that an air passenger who, in the context of a package tour, had a confirmed reservation for a flight, may seek compensation from the operating air carrier as provided for in Article 7(1) of that regulation where the operator of that tour, without informing that carrier in advance, notified that passenger that the originally planned flight would not be performed, whereas that flight was operated as planned.
54 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the referring courts, the decisions on costs are a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.