OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 23 September 2021 (1)
Case C‑395/20
EP,
GM
v
Corendon Airlines Turistik Hava Tasimacilik A.Ş.
(Request for a preliminary ruling from the Landgericht Düsseldorf (Regional Court Düsseldorf, Germany)
(Reference 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 – Change in the departure time of a flight – Departure postponed by almost three hours – Passengers notified nine days before departure – Concepts of ‘cancellation’ and ‘offer of re-routing’)
I. Introduction
1. In the present case, which concerns a request for a preliminary ruling under Article 267 TFEU, the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) has referred two questions to the Court for a preliminary ruling concerning the interpretation of Article 2(l), Article 5(1) and Article 8(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. (2)
2. The request has been made in proceedings between two air passengers, EP and GM (‘the passengers concerned’), and Corendon Airlines Turistik Hava Taşımacılık A.Ş. (‘Corendon Airlines’) concerning the latter’s refusal to compensate those passengers when the scheduled departure time of their flight was postponed. The present case raises novel and complex legal issues, on which the Court will have the opportunity to rule. The questions concern, first, the legal classification of such a postponement of a flight and, secondly, the meaning of the notification given to passengers in that regard, which may be considered to constitute an ‘offer of re-routing’ within the meaning of Article 5(1)(c)(ii) of Regulation No 261/2004.
3. As requested by the Court, this Opinion will focus on the analysis of the first question referred for a preliminary ruling, which concerns whether the postponement of a flight constitutes a ‘cancellation’ within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004.
II. Legal framework
A. Regulation No 261/2004
4. Article 2 of Regulation No 261/2004, entitled ‘Definitions’, provides:
‘For the purposes of this Regulation:
…
(l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’
5. Article 5(1) of that regulation, entitled ‘Cancellation’, 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.’
6. Article 6 of that regulation, entitled ‘Delay’, is worded as follows:
‘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 1 500 kilometres or less; or
(b) for three hours or more in the case of all intra-Community flights of more than 1 500 kilometres and of all other flights between 1 500 and 3 500 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.’
7. Article 7 of that regulation, entitled ‘Right to compensation’, provides:
‘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 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;
…
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:
…
(b) by three hours, in respect of all intra-Community flights of more than 1 500 kilometres and for all other flights between 1 500 and 3 500 kilometres; or
…
the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.
…’
8. Article 8 of Regulation No 261/2004, ‘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.
2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under [Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59)].
…’
B. Regulation (EC) No 1033/2006
9. Article 2(2) of Commission Regulation (EC) No 1033/2006 of 4 July 2006 laying down the requirements on procedures for flight plans in the pre-flight phase for the single European sky (3) provides:
‘In addition to the definitions referred to in paragraph 1 the following definitions shall apply:
…
10. “key items of a flight plan” means the following items of a flight plan:
…
(d) estimated off-block time;
…’
III. The facts giving rise to the dispute, the main proceedings and the questions referred
10. The passengers concerned booked a package holiday to Antalya (Turkey) via the internet platform ‘Check24’. Their booking was confirmed by Corendon Airlines for a flight on 18 May 2019 from Düsseldorf (Germany) to Antalya with a scheduled departure time of 13.20 and a scheduled arrival time of 17.50.
11. Corendon Airlines subsequently postponed that flight and scheduled a new departure time of 16.10 on 18 May 2019. It informed the passengers in question of this within the time limit laid down in Article 5(1)(c)(ii) of Regulation No 261/2004. That flight was then delayed, departing at 17.02 and landing at 21.30 on 18 May 2019.
12. The passengers in question claimed compensation from Corendon Airlines in the sum of EUR 400 each, under Article 5(1)(c) and Article 7(1)(b) of that regulation. Corendon Airlines refused to compensate those passengers.
13. The Amtsgericht Düsseldorf (District Court, Düsseldorf, Germany) dismissed the appeal of the passengers in question. That court found, first, that although the departure time of the flight had been changed, the original planning of the flight had not been abandoned. Secondly, those passengers were, in any event, notified of the change in departure time within the time limit laid down in Article 5(1)(c)(ii) of that regulation, which is two weeks to seven days before the scheduled departure time. Furthermore, that court noted that it was not necessary to examine the question whether Corendon Airlines had fulfilled its obligation to provide information on the rights of the passengers at issue in the main proceedings under Article 8 of that regulation, since a possible breach of the obligation to provide information does not constitute a right to compensation under Article 7(1) of Regulation No 261/2004.
14. Since the passengers in question have appealed against the judgment of the Amtsgericht Düsseldorf (District Court, Düsseldorf) before the Landgericht Düsseldorf (Regional Court, Düsseldorf), the latter court points out that that judgment cannot be upheld if the postponement of almost three hours means that the flight has been cancelled, within the meaning of Article 2(l) of that regulation, and if notification of the delay does not constitute an offer of re-routing under the conditions laid down by that regulation.
15. The Landgericht Düsseldorf (Regional Court, Düsseldorf) therefore decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is a flight cancelled within the meaning of Articles 2(l) and 5(1) of [Regulation No 261/2004] where the operating air carrier postpones a flight booked as part of a package holiday and scheduled to depart at 13.20 (LT) until 16.10 (LT) on the same day?
(2) Does the notification nine days prior to the start of the trip of the postponement of a flight from 13.20 (LT) to 16.10 (LT) on the same day constitute an offer of re-routing within the meaning of Article 5(1)(c)(ii) of [Regulation No 261/2004], and, if so, must that offer meet the requirements of Articles 5(1)(a) and 8(1) of [Regulation No 261/2004]?’
IV. Procedure before the Court
16. The order for reference, dated 3 August 2020, was received at the Court Registry on 19 August 2020.
17. The applicants in the main proceedings, the German Government and the European Commission submitted written observations within the time limit laid down in Article 23 of the Statute of the Court of Justice of the European Union.
18. At the general meeting of 27 April 2021, the Court decided not to hold a hearing.
V. Legal analysis
A. The first question referred for a preliminary ruling
19. By its first question, the referring court wishes to know whether a flight is ‘cancelled’ within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004 where the operating air carrier postpones a flight booked as part of a package holiday and scheduled to depart at 13.20 (local time) until 16.10 (local time) on the same day.
20. ‘Cancellation’ is defined in Article 2(l) of that regulation as ‘the non-operation of a flight which was previously planned and on which at least one place was reserved’.
21. Since this definition is based on the ‘non-operation’ of a flight, it is therefore appropriate to examine the concept of ‘flight’, which, in the absence of a definition in that regulation, has been interpreted by the Court. According to that case-law, a ‘flight’ consists, in essence, of an air transport operation, being as it were a ‘unit’ of such transport, performed by an air carrier which fixes its itinerary. (4) Thus, the Court has clarified that the itinerary is an essential element of the flight, as the flight is operated in accordance with the air carrier’s pre-arranged planning. (5)
22. It is also clear from the Court’s case-law that cancelled flights and delayed flights constitute two quite distinct categories of flights. Unlike ‘flight delay’, ‘cancellation’, within the meaning of Article 2(l) of Regulation No 261/2004, is the consequence of the fact that a flight originally scheduled was not carried out. It cannot therefore be inferred from Regulation No 261/2004 that a flight which is delayed may be classified as a ‘cancelled flight’ merely on the ground that the delay is extended, even substantially. The Court concluded that a flight which is delayed, irrespective of the duration of the delay, cannot be regarded as cancelled where there is a departure in accordance with the original planning. (6)
23. I concur with the German Government and the Commission in so far as it seems to me that, in the present case, the original planning was not abandoned. Although the itinerary is an essential element of a flight, it is nonetheless true that the applicants were in fact transported by the air carrier as part of the flight they had booked, even if this occurred at a later time. Neither the airport of departure or arrival nor the number of the flight on which the passengers were transported was changed. Nor is there any indication that the air carrier definitely wished to abandon the original planning or that it did so. On the contrary, in the present case, it should be considered that it is merely the time of that flight that was postponed.
24. I am not unsympathetic to the Commission’s argument that the ‘cancellation’ of a flight is characterised by a direct and intentional action of the air carrier to change the planning, whereas in the case of a ‘delayed’ flight, the departure time is neither planned nor always influenced by air carrier. Events over which the air carrier has no influence can very often have an impact on air traffic, making it necessary to ‘change’ the planning, without that involving the complete ‘abandonment’ thereof. The air carrier may react to such an event by announcing a later departure time than originally planned. It seems to me that this is precisely what is normally meant by a ‘postponement of the departure time’ of an aircraft, such as that which occurred in the present case.
25. I am of the opinion that postponing a flight while maintaining the same aircraft and itinerary constitutes, according to common sense, a ‘delay’, and not a ‘cancellation’. In my view, it would be contrary to general experience, to the customary interpretation of the terms and to the scheme of Regulation No 261/2004 to consider that the postponement of a flight by approximately three hours, where that flight is otherwise unchanged, constitutes a ‘cancellation’ with the offer of an alternative transport option. That would amount to a complete disregard of the concept of ‘delay’, to which reference has already been made above, in favour of an artificial interpretation of the concept of ‘cancellation’. In the absence of concrete evidence that the flight planning was actually abandoned by the air carrier, it must be concluded that that planning was only temporarily suspended, since it was subsequently returned to as soon as that was possible in the circumstances. (7)
26. Furthermore, the fact that the postponement was announced well in advance (in this case nine days in advance) cannot, in itself, play a role in determining whether the postponement should be classified as a ‘cancellation’ or a ‘delay’. Providing advance notice in a timely manner has an impact on the extent of the difficulties or inconvenience to passengers, but not necessarily on the nature of the postponement itself.
27. It cannot, of course, be ruled out that a ‘significant’ delay in the time of departure and the particular circumstances surrounding it may have a bearing on whether the postponement is classified as a ‘cancellation’ or a ‘delay’. Depending on the situation, those elements may be interpreted as indications of a situation going beyond a mere temporary suspension of the flight planning.
28. However, this is certainly not the case here, as the postponement of the departure time was only about three hours and must, therefore, rather be considered to be ‘minor’. Consequently, it seems to me unnecessary for the Court to rule in this case on whether a purely hypothetical scenario such as this is possible.
B. Answer to the first question referred
29. For the reasons set out above, I propose that the answer to the first question referred for a preliminary ruling should be that a flight is not ‘cancelled’, within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004, where the operating air carrier merely postpones a flight booked as part of a package holiday and scheduled to depart at 13.20 (local time) until 16.10 (local time) on the same day, and there are no other changes to the flight.
VI. Conclusion
30. In the light of the foregoing considerations, I propose that the Court answer the first question referred for a preliminary ruling by the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) as follows:
A flight is not ‘cancelled’, within the meaning of Article 2(l) and Article 5(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, where the operating air carrier merely postpones a flight booked as part of a package holiday and scheduled to depart at 13.20 (local time) until 16.10 (local time) on the same day, and there are no other changes to the flight.