21 December 2021 (*1) (i)

(References for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Articles 2 and 3 – Concepts of ‘operating air carrier’, ‘confirmed reservation’ and ‘scheduled time of arrival’ – Articles 5, 7 and 8 – Flight departure time brought forward in relation to the original planned departure time – Classification – Reduction in the amount of compensation – Offer of re-routing – Article 14 – Obligation to inform passengers of their rights – Scope)

In Joined Cases C‑146/20, C‑188/20, C‑196/20 and C‑270/20,

FOUR REQUESTS for a preliminary ruling under Article 267 TFEU, one from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), made by decision of 16 June 2020, received at the Court on 18 June 2020 (C‑270/20), and three from the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), made by decisions of 17 February 2020 (C‑146/20) and of 6 April 2020 (C‑188/20 and C‑196/20), received at the Court on 20 March 2020 (C‑146/20), on 30 April 2020 (C‑188/20) and on 6 May 2020 (C‑196/20), in the proceedings

AD,

BE,

CF v Corendon Airlines (C‑146/20),

JG,

LH,

MI,

NJ v OP, acting as liquidator of Azurair GmbH

intervener:

alltours flugreisen GmbH (C‑188/20),

Eurowings GmbH v flightright GmbH (C‑196/20),

AG,

MG,

HG v Austrian Airlines AG (C‑270/20),

THE COURT (First Chamber),

composed of L. Bay Larsen, Vice-President of the Court, acting as President of the First Chamber, J.‑C. Bonichot and M. Safjan (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 16 June 2021,

after considering the observations submitted on behalf of:

–JG, LH, MI and NJ, by H. Hopperdietzel, Rechtsanwalt,

–Eurowings GmbH, by Y. Pochyla and W. Bloch, Rechtsanwälte,

–AG, MG and HG, by F. Puschkarski, Rechtsanwältin,

–Corendon Airlines and OP, acting as liquidator of Azurair GmbH, by N. Serfort, Rechtsanwalt,

–flightright GmbH, initially by T. Mauser and subsequently by R. Weist and M. Michel, Rechtsanwälte,

–Austrian Airlines AG, by C. Krones, Rechtsanwalt,

–the German Government, by J. Möller, M. Hellmann, J. Heitz, U. Kühne and U. Bartl, acting as Agents,

–the Austrian Government, by A. Posch, G. Kunnert and J. Schmoll, acting as Agents,

–the European Commission, by K. Simonsson, R. Pethke and G. Braun, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 September 2021,

gives the following

1These requests for a preliminary ruling concern the interpretation of Article 2(b), (f), (g), (h) and (l), Article 3(2)(a), Article 5(1), Article 7(1) and (2), Article 8(1)(b) and Article 14(2) 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).

2The requests have been made in proceedings brought by air passengers against a number of airlines (C‑146/20, C‑188/20 and C‑270/20), and by one airline against flightright GmbH, to which air passengers had assigned their rights (C‑196/20), concerning compensation for those passengers under Regulation No 261/2004.

Legal context

3Under recitals 1 and 20 of Regulation No 261/2004:

‘(1) Action by the [European Union] 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.

…

(20) Passengers should be fully informed of their rights in the event of denied boarding and of cancellation or long delay of flights, so that they can effectively exercise their rights.’

Article 2 of that regulation 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;

…

(f) “ticket” means a valid document giving entitlement to transport, or something equivalent in paperless form, including electronic form, issued or authorised by the air carrier or its authorised agent;

(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;

(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.’

Article 3 of that regulation provides:

‘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;

(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is [an EU] carrier.

(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.

…’

Article 5(1) of that regulation provides:

‘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:

(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.’

Under Article 7 of Regulation No 261/2004:

‘1. Where reference is made to this Article, passengers shall receive compensation amounting to:

…

(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;

…

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.