On 8 June 2023, the European Court of Justice (“ECJ” or the “Court”) gave a preliminary ruling on the interpretation and scope of Regulation No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (the “Regulation”) in relation to case C-49/22 pertaining to the reimbursement of fees paid for a repatriation flight.
Background to the request for the preliminary ruling
A couple who had booked a package holiday to Mauritius found themselves stranded after their flights got cancelled by their air carrier due to the outbreak of the COVID-19 pandemic. The couple in question had purchased flight tickets to depart from Vienna, Austria to Mauritius on 7 March 2020 and a return flight from Mauritius to Vienna, Austria on 20 March 2020. Both flights were to be operated by Austrian Airlines. The outbound flight went ahead in accordance with the flight schedule however the return flight had been cancelled. Austrian Airlines had failed to inform the couple of the cancellation of their flight or their rights in this situation. They were only notified by their travel agent a day before the flight was scheduled. Thus, the couple were obliged to register for a repatriation flight which cost them €500 per person. This flight was organised by the Austrian Ministry of Foreign Affairs and happened on the 20 of March 2020, a date when no commercial flights were being operated.
It followed that the couple brought an action against Austrian Airlines before the District Court of Schwechat, Austria (the “District Court”) requesting to be reimbursed the amount of €1000 plus interest. This case was brought on the basis of the Regulation and the couple alleged that the airline had failed to organise ‘re-routing’ in terms of articles 5 and 8 of the Regulation.
The District Court upheld the couple’s application based on the arguments brought forward in accordance with the Regulation. Austrian Airlines, however, appealed to the Regional Court of Korneuberg (the “Regional Court”). The Regional Court, as a final court of appeal, made a preliminary reference to the ECJ as empowered through Article 267 TFEU. The Regional Court posed the following questions to the ECJ:
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- Does a ‘repatriation flight’ amount to ‘re-routing’ in terms of the Regulation? and
- Should the costs incurred by the passenger for the repatriation flight be reimbursed by the air carrier?
An understanding of Articles 5 and 8 of the Regulation
The aim of the Regulation is to protect the rights of air passengers and to ensure that they are compensated and assisted in the event of disruptions to their travel plans. The Regulation provides passengers with various rights which, inter alia, include the right to compensation, the right to assistance and the right to re-imbursement or re-routing.
Article 5 of the Regulation stipulates the right to compensation for passengers in case of flight cancellations. Passengers are entitled to compensation, unless the cancellation results from extraordinary circumstances beyond the airline’s control and the compensation amount varies based on flight distance and delay duration. Airlines must offer reimbursement or re-routing options, and if passengers are notified at least two weeks before departure, compensation may be avoided. Article 8, on the other hand, grants passengers the right to choose between reimbursement or re-routing in case of flight cancellations. Passengers can opt for a refund for the unused part of their ticket within seven days or else choose re-routing to their final destination. Re-routing must be provided at the earliest opportunity or a later date of the passenger’s convenience, with comparable transport conditions.
The ECJ’s consideration
In response to the questions posed by the Regional Court, the ECJ in its considerations pointed out that only flights of a commercial nature may be involved in the implementation of ‘re-routing’, to which a passenger is entitled to in accordance with the Regulation and this in the event of the cancellation of his or her flight.
A repatriation flight, however, is not commercial in nature, in so far as it is organised, in principle, within the context of a State’s consular assistance. The conditions of a repatriation flight may differ significantly from those of a commercial flight as regards both the conditions for boarding and the services on board. Above all, operating air carriers cannot offer their passengers a repatriation flight as ‘re-routing’, since they are not entitled to confer on those passengers a right to be carried on that flight.
Accordingly, in its ruling, the Court confirmed that a repatriation flight, organised by a Member State in the context of consular assistance following the cancellation of a flight, does not constitute ‘re-routing, under comparable transport conditions, to [the] final destination’, within the meaning of the Regulation.
Furthermore, the Court clarifies that a passenger, in the event of a cancelled return flight, who voluntarily enrols for a repatriation flight organised by a Member State for consular assistance and is compelled to contribute to the associated costs, is not entitled to reimbursement from the operating air carrier under the Regulation. The Court however clarifies that the passenger retains the right to institute proceedings before a national court for the failure of the air carrier to fulfil its obligation to refund the entire ticket cost for the unused portion and to provide necessary assistance.
Concluding remarks
The salient points arising from this ruling are two-fold – (i) the Court for the first time in recent years has distinguished between commercial flights and so-called ‘repatriation’ flights; and (ii) the Court has hinted towards an exhaustive interpretation of the terminology utilised within the Regulation.
On another note, this Regulation continues to be examined regularly by the Court and this is another ruling released by the Court with regards to air passenger rights. Over the course of the last years, the Regulation has been scrutinized regularly by the Court and the Court has continued to provide clarificatory remarks on most of the articles within the Regulation.
Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report.
Author: Nigel Micallef
16th November 2023