OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 2 March 2023(1)
Case C‑49/22
Austrian Airlines AG
v
TW
(Request for a preliminary ruling from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria))
(Reference for a preliminary ruling – Air transport – Passengers’ rights – Regulation (EC) No 261/2004 – Article 5(1)(a) – Article 8(1) – Article 9 – Cancellation of flight – COVID-19 pandemic – Repatriation flight organised by the Member State – Consular functions – Flight operated by the same airline and at the same time as the cancelled flight – Obligation for the passenger to contribute to the costs of the repatriation flight – Concept of ‘re-routing, under comparable transport conditions’ – Right to reimbursement – Duty of care – Directive (EU) 2015/2302 – Package travel – Article 14(1) – Price reduction)
I. Introduction
1. The impact that the COVID-19 pandemic has had and, to some extent, still has on the daily lives of individuals and businesses can hardly be overstated. Among other things, the pandemic is estimated to have caused one of the largest global recessions since the Great Depression in the 1930s, with millions of people falling into poverty and millions of businesses going bankrupt. (2) Aviation and tourism can be counted among the most severely affected industries. (3) As far as the aviation sector is concerned, the sudden and unprecedented decrease in passenger demand, air-space closures and flight bans (4) – together with the curfew measures adopted by several countries – caused a total or partial halt to most airlines’ operations, causing some airlines to ground their entire fleets and others to operate with a minimum of staff on strict rotations.(5)
2. Our laws are, however, rarely conceived and designed to govern such an extraordinary and almost unimaginable set of circumstances. It may, thus, be challenging for judges and lawyers alike to ‘fit’ the unusual situations which may arise out of those extraordinary circumstances into the rather ordinary scenarios envisaged in our laws. At first sight, the present proceedings appear to constitute such a case: the referring court asks the Court, in essence, whether a repatriation flight, carried out in the exercise of the State’s sovereign functions, should be considered to be ‘re-routing to the final destination, under comparable transport conditions’, to be offered by the air carrier in the event of cancellation of a flight, within the meaning of Article 8(1) of the Air Passenger Rights Regulation (Regulation (EC) No 261/2004).(6)
3. The answer to that question is, in my view, relatively straightforward: no, a repatriation flight cannot be regarded as re-routing for the purposes of Regulation No 261/2004. However, that does not mean that the individuals concerned in the main proceedings – who were on vacation in Mauritius when their return flight was cancelled due to the outbreak of COVID-19, and who therefore had to take a repatriation flight organised by the Member State of their nationality, and for which they had to pay a contribution – are left unprotected with regard to their claims.
4. Indeed, as it happens, other provisions of EU law (and, if appropriate, of national law) can be applied to the facts at issue in the main proceedings, notwithstanding the unusual features of the situation, and lead to a fair and balanced outcome, without having to engage in any original interpretation of the law.
II. Legal framework
A. European Union law
5. Recitals 1, 5, 12, 13, 16, and 20 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.
…
(5) Since the distinction between scheduled and non-scheduled air services is weakening, such protection should apply to passengers not only on scheduled but also on non-scheduled flights, including those forming part of package tours.
…
(12) The trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this, except when the cancellation occurs in extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.
(13) Passengers whose flights are cancelled should be able either to obtain reimbursement of their tickets or to obtain re-routing under satisfactory conditions, and should be adequately cared for while awaiting a later flight.
…
(16) In cases where a package tour is cancelled for reasons other than the flight being cancelled, this Regulation should not apply.
…
(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.’
6. Article 5 of Regulation No 261/2004, entitled ‘Cancellation’, provides:
‘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:
…
2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.
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 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 … 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)].
…’
8. Article 14(1) of 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 (7) provides:
‘Member States shall ensure that the traveller is entitled to an appropriate price reduction for any period during which there was lack of conformity, unless the organiser proves that the lack of conformity is attributable to the traveller.’
B. Austrian law
9. Paragraph 3(2) of the Bundesgesetz über die Wahrnehmung konsularischer Aufgaben (Konsulargesetz) (8) (Federal Law on the exercise of consular functions) provides:
‘Consular protection is that part of consular duties which comprises the provision of assistance in legal protection and emergency situations. This includes, among other things, the provision of assistance in cases of:
…
5. relief and repatriation in case of an emergency.’
III. Facts, national proceedings and the questions referred for a preliminary ruling
10. TW – the applicant in the main proceedings – and his wife each had a confirmed reservation for flight OS17, on 7 March 2020, from Vienna (Austria) to Mauritius, as well as for flight OS18, on 20 March 2020, from Mauritius to Vienna. Those two flights were to be operated by Austrian Airlines and formed part of a package tour.
11. Whereas the first flight was operated as scheduled, Austrian Airlines cancelled the return flight due to the health situation and the measures taken by the Austrian Federal Government in response thereto. Despite having the contact details of the passengers, Austrian Airlines did not contact them to inform them of the cancellation of the return flight and of their rights under Regulation No 261/2004.
12. On 19 March 2020, the tour operator called the passengers to inform them of the cancellation of the return flight and that a repatriation flight scheduled for the following day had been organised by the Austrian Ministry of Foreign Affairs (‘the Ministry’). The repatriation flight was operated by Austrian Airlines, under a contractual agreement with the Ministry, under flight number OS1024, at the same flight time as the flight originally booked. The applicant and his wife were each required to pay an obligatory contribution towards costs of EUR 500. Austrian Airlines received some compensation for the flight from the Ministry.
13. The applicant brought proceedings against Austrian Airlines before the Bezirksgericht Schwechat (District Court, Schwechat, Austria), seeking compensation of a total amount of EUR 1 000 for himself and his wife arguing, in substance, that the defendant had breached the provisions of Regulation No 261/2004 by not offering re-routing. In his view, Austrian Airlines should have reimbursed them the cost of the repatriation flight. By judgment of 13 April 2021, the Bezirksgericht Schwechat (District Court, Schwechat) ruled in favour of the applicant.
14. Austrian Airlines lodged an appeal against that judgment before the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), claiming that the repatriation flight cannot be regarded as re-routing under Regulation No 261/2004. In that regard, Austrian Airlines emphasised that it was unable to rebook the applicant onto that flight, since it was the Ministry who bore sole responsibility for the decision as to who was to be carried on that flight, and who decided the amount to be paid by the passengers.
15. Entertaining doubts as to the interpretation of the relevant provisions of Regulation No 261/2004, 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) Must Article 5(1)(a) and Article 8(1)(b) of [Regulation No 261/2004] be interpreted as meaning that a repatriation flight operated in the exercise of the State’s sovereign functions is also to be regarded as re-routing, under comparable transport conditions, to the final destination – as must be offered by the operating air carrier in the event of cancellation – where the operating air carrier cannot establish legal entitlement to transport the passenger but could register the passenger for that purpose and bear the costs and, by virtue of a contractual agreement with the State, ultimately operates the flight with the same aircraft and at the same flight times as scheduled for the flight originally cancelled?
(2) Must Article 8(1) of [Regulation No 261/2004] to be interpreted as meaning that a passenger who registers himself or herself for a repatriation flight as described in Question 1 and who makes an obligatory contribution to costs to the State for that flight has a claim for reimbursement of those expenses against the air carrier, arising directly from [that regulation], even if the costs exceed the purely flight-related costs?’
16. Written observations in the present proceedings have been submitted by TW, Austrian Airlines, the German and Austrian Governments and the European Commission.
IV. Analysis
17. The main proceedings concern an Austrian couple (TW and his wife) who travelled as tourists to Mauritius with a package that included flight transport. However, during their stay in Mauritius, due to the measures taken by the Austrian authorities in response to the COVID-19 pandemic, the return flight was cancelled. The couple, therefore, boarded a repatriation flight, organised by the Ministry, which was operated by the same air carrier (Austrian Airlines) and which departed on the same date and time as the original flight. For the repatriation flight, each passenger was required to pay the Ministry a contribution of EUR 500. Considering that the repatriation flight constituted ‘re-routing’ for the purposes of Regulation No 261/2004, TW argues that such a flight should have been offered, free of charge, by Austrian Airlines.
18. Thus, by the two questions referred, the referring court seeks essentially to ascertain whether TW can validly claim, from Austrian Airlines, reimbursement of the amount paid by him and his wife, in respect of that airline’s failure to ‘offer’ the repatriation flight in breach of its obligations under Regulation No 261/2004.
19. Before dealing with those questions, I must say that I am somewhat puzzled as to the wording and scope thereof. Indeed, those questions are focused on only two (certainly important, but quite narrowly defined) issues stemming from the interpretation of Article 5(1)(a) and Article 8(1) of Regulation No 261/2004. However, the situation at issue appears to be governed, in my view, also by other provisions of EU law which, given the specific circumstances, could provide that court with a rather clear and solid framework for resolving the dispute.
20. Hence, with a view to fully assisting the referring court, I shall reformulate and expand the scope of the second question referred, and add some concluding remarks at the end of this Opinion.
A. First question: the concept of ‘re-routing’
21. By its first question, the referring court enquires as to the concept of ‘re-routing’ within the meaning of Article 8(1) of Regulation No 261/2004. In particular, that court asks whether that concept extends to a repatriation flight, organised by a Member State in the exercise of its sovereign functions.
22. As mentioned above, I am of the view that the answer to that question should be in the negative. Several reasons lead me to take that view.
23. First, the scope of Regulation No 261/2004 cannot, in my view, be interpreted as extending to flights of a non-commercial nature, such as repatriation flights organised by EU Member States. Several passages in the preamble and in the provisions of the regulation point to that conclusion. In particular, it should not be overlooked that (i) repatriation flights are not offered ‘in the market’; (9) (ii) the obligatory contribution paid by the passengers to the public authorities is not a fare available ‘to the public’; (10) (iii) the transport service is not provided by air carriers performing or intending to perform ‘a flight under a contract with a passenger or on behalf of another person … having a contract with that passenger’; (11) and (iv) passengers on repatriation flights are, at least in that context, not ‘consumers’, (12) because they do not deal with a ‘trader’ or an ‘economic operator’, (13) and they do not have any specific ‘right’ (by law or by contract) concerning those flights vis-à-vis the organiser thereof. (14)
24. Second, Regulation No 261/2004 is based on (what is now) Article 100(2) TFEU, which enables the EU legislature to lay down ‘appropriate provisions for sea and air transport’, (15) within the context of the common transport policy. In that regard, it is true that the Treaties leave the EU legislature with a wide discretion with regard to the aim and means of the common transport policy. (16) However, it is equally true that the measures that the EU legislature is required to lay down, pursuant to Article 91 TFEU, for the purposes of implementing the common transport policy have icto oculi nothing to do with repatriation flights. (17)
25. Repatriation flights organised by Member States to bring back their citizens stranded in a third country in dangerous situations as quickly as possible are not intended to pursue a ‘common’ interest of the Union. Unless they are set up within the context of an action undertaken under the provisions of the European Union’s Common Foreign and Security Policy, those flights are operated in the context of Member States’ diplomatic and consular functions.
26. In fact, the repatriation flight at issue was organised by the Ministry on the basis of the Federal Law on the exercise of consular functions. The consular functions encompass, under that law, consular protection and assistance which include, in particular, measures of ‘relief and repatriation in case of an emergency’.
27. The national provisions at issue appear fully consistent with Article 5(e) of the Vienna Convention on Consular Relations, according to which consular functions consist in, inter alia, ‘helping and assisting nationals, both individuals and bodies corporate, of the sending State’. (18) That is generally considered to be one of the most important tasks of consular authorities, with some States considering that their nationals are entitled to such assistance. (19)
28. In that regard, it must be noted that the Member States’ diplomatic and consular functions are matters that do not fall within the competences conferred on the European Union by the Treaties. Only one specific aspect of diplomatic and consular protection and assistance to individuals who possess Union citizenship is regulated in the Treaties, (20) namely, the application of the principle of non‑discrimination on grounds of nationality within that context. (21) For the rest, the Treaties only provide for some obligations of coordination and mutual assistance between (the bodies which, in fact, constitute) the European Union’s diplomatic and consular service (the European External Action Service) and missions (the delegations) and the Member States’ diplomatic and consular services and missions. (22) By and large, as Advocate General Bot stated in his Opinion in the Sólyom case, ‘the sphere of diplomatic relations remains within the purview of the Member States’, (23) and is thus mainly governed by the principles and rules of public international law. (24)
29. Nor can repatriation flights be regarded as giving rise to ‘transport services’ within the meaning of the Treaty provisions on the internal market. (25) The Court has, in fact, consistently held that the concept of ‘services’, within the meaning of those provisions, ‘must be interpreted in the light of the freedom to provide services enshrined in Article 56 TFEU, the scope of which is limited to economic activities’. (26)
30. Third, a textual and systemic interpretation of Article 8(1) of Regulation No 261/2004 confirms that the concept of ‘re-routing’ cannot be extended to cover repatriation flights. It may be true that, at first sight, that concept is not defined anywhere in the regulation. However, that term can neither be interpreted without taking into account the scope and subject matter of Regulation No 261/2004, nor be uncritically extrapolated from the body of Article 8(1) thereof.
31. The concept of ‘repatriation flight’ is broad enough to encompass both direct and indirect flights, with the same itinerary or a different itinerary, operated by the same air carrier or by other air carriers (whether or not belonging to the same airline alliance) (27) and, quite possibly, other modes of transport.(28) That notwithstanding, for the reasons already discussed, the concept of ‘re-routing’ cannot be over stretched, so as to also include non-commercial flights organised in the context of a Member State’s diplomatic functions.
32. The situation envisaged by Regulation No 261/2004 is, fundamentally, one where an air carrier – which, for whatever reason, has to cancel a flight, thereby becoming unable to fulfil its contractual obligations vis-à-vis its passengers – may decide to ‘delegate’ the performance of the contract to another air carrier, which will do so on behalf of (and at the expense of) the original air carrier. In my view, it is unthinkable that a State, while carrying out security-related transport, could be regarded as ‘replacing’ an air carrier in the fulfilment of that air carrier’s contractual obligations.
33. This interpretation of the term ‘re-routing’ is borne out by the very text of Article 8(1) of Regulation No 261/2004: points (b) and (c) of that provision refer to ‘re-routing, under comparable transport conditions’. (29) The reference to ‘comparable transport conditions’ is clearly essential to the understanding of the means and conditions of transport that can be regarded as constituting re-routing for the purposes of Regulation No 261/2004. (30)
34. I hardly need to point out, in that regard, that there is very little comparability between commercial flights and repatriation flights. The latter flights are – as already emphasised – organised by the national authorities (Ministry of Foreign Affairs, embassies, consulates, etc.) who decide, in particular, when, how and for whose benefit they should be operated, and how reservations (if any) should be made. The operation of those flights may be entrusted to commercial airlines, but may also be operated by State-owned aircraft, including military aircraft or other aircraft not intended for civilian passenger transport. They can fly to/from civilian airports but also to/from military airports, and may require a crew which has undergone special training and/or obtained specific certificates.
35. From the perspective of the passengers, the services provided before, during and after the flight may be significantly different. They cannot expect repatriation flights to offer the same services in terms of, inter alia, boarding and disembarking assistance, luggage, seat assignments, classes and upgrades, meals and refreshments, fidelity miles, flight entertainment and so on, that are typical of commercial flights.
36. Having been involved in the organisation of such flights during my career as a diplomat before joining the Court, I can attest to the different conditions under which those flights are organised that distinguish them from regular commercial flights.
37. Fourth, a different interpretation of Article 8(1) of Regulation No 261/2004 would lead to absurd results. TW’s argument seems to be based on the premiss that all passengers booked on the original flight could have, and by all means should have, been automatically re-booked on the new flight by the air carrier. Indeed, his argument is that repatriation flights should be considered as possible flights for re-routing, with the consequence that they should be among those offered by air carriers to passengers that are denied boarding (31) or concerned by cancellation of flights. (32)
38. However, it cannot be disputed that air carriers are not at liberty to ‘offer’ (33) those flights to their customers since, even when they happen to operate them, the ultimate decision about the persons that will be boarded remains with the public authorities. In fact, the authorities may take decisions in that regard on the basis of various criteria, for example the passengers’ health, age, vulnerability and/or, last but not least, their nationality. (34)
39. I would add, in passing, that it is by no means evident that all passengers booked on the original flight could have actually been re-booked on the new flight. Indeed, more stringent security and medical safety measures may well be put in place on repatriation flights in order to ensure the protection of the crew and passengers, which could lead to a reduction of the seats available. (35)
40. Therefore, the interpretation of Article 8(1) of Regulation No 261/2004 proposed by TW would conflict with the well-known legal maxim ad impossibilia nemo tenetur (no one is obliged to do the impossible). (36)
41. I understand that, from TW’s perspective, there seems to be no major difference between the flight originally booked, and the repatriation flight that he and his wife eventually boarded: they were both operated by the same air carrier (Austrian Airlines), departed at the same time and used the same aircraft. In that regard, however, what TW may regard as ‘minor formalities’ make, in legal terms, all the difference: the original flight was a civilian flight operated by Austrian Airlines independently, as part of their commercial activities, transporting passengers who had a ticket ‘issued or authorised by the air carrier or its authorised agent[s]’, (37) whereas the flight actually boarded was a repatriation flight, the specific features of which I have already set out. The fact that the repatriation flight was attributed a different flight number is, therefore, not simple ‘cosmetics’ but a clear indication that the flight boarded by TW and his wife had a different legal status than that originally booked.
42. Fifth, it is irrelevant that the interpretation proposed by TW would contribute to protecting consumers, which is one of the objectives pursued by Regulation No 261/2004. As laudable as that objective may be, it cannot be used to interpret the provisions of that regulation in a manner which would extend their reach beyond that intended by the EU legislature, and possibly beyond that permitted under the current Treaty rules.
43. The balance of interests between (i) the need to protect consumers because of their being the weaker parties in commercial transactions; (ii) the legitimate financial and commercial interests of air carriers in being held liable only for events which they could anticipate or over which they could exercise some form of control; and (iii) the Member States’ interest in exercising their diplomatic functions without that exercise being affected by the EU internal market and common transport rules, has been struck by the EU legislature when defining the subject matter and material scope of Regulation No 261/2004. It is not for the Court to alter that balance through a creative interpretation of the rules thereof.
44. The dictum ‘desperate times call for desperate measures’ may be valid in medicine (38) but, in my humble experience, is not necessarily applicable mutatis mutandis with regard to the law.
45. In the light of the above considerations, I propose that the Court answer the first question referred to the effect that a repatriation flight operated in the exercise of a Member State’s sovereign functions cannot be regarded as ‘re-routing, under comparable transport conditions’ within the meaning of Article 5(1)(a) and Article 8(1) of Regulation No 261/2004.
B. Second question: the air carriers’ obligations in case of cancellation of a flight
46. By its second question, the referring court asks whether Article 8(1) of Regulation No 261/2004 is to be interpreted as meaning that a passenger who registers himself or herself for a repatriation flight and who makes an obligatory contribution towards costs to the State for that flight has a claim for reimbursement of those expenses against the air carrier, arising directly from the provisions of that regulation, even if the costs exceed the purely flight-related costs.
47. In my view, the answer to that questions follows quite logically from what I have explained above: since a repatriation flight organised by national authorities does not constitute ‘re-routing’, its costs should not be borne by the air carrier. Thus, Article 8(1) of Regulation No 261/2004 offers no basis to consider that TW can claim, from Austrian Airlines, the reimbursement of the obligatory contribution paid to the Ministry for the repatriation flight.
48. However, as already mentioned in point 20 above, in order to fully assist the referring court, I will consider the second question as enquiring, more broadly, about the obligations that arise for air carriers under Articles 5 and 7 to 9 of Regulation No 261/2004, when a return flight has to be cancelled for reasons relating to a pandemic such as that of COVID-19, and the passenger has to register himself or herself for a repatriation flight.
49. It should be noted that, in case of cancellation of flights, Articles 5 and 7 to 9 of Regulation No 261/2004 lay down – in principle – a three-fold obligation for air-carriers to: (i) offer the passenger a choice between reimbursement of the ticket and re-routing, (ii) provide assistance, and (iii) provide compensation.
50. I shall now briefly examine each of those obligations in turn.
1. Compensation
51. Pursuant to Article 5(1)(c) and Article 7 of Regulation No 261/2004, in the event of a flight cancellation, passengers have, with certain exceptions, a right to receive compensation, in the form of a fixed sum, the amount of which varies depending on a number of variables.
52. However, Article 5(3) of Regulation No 261/2004 provides that ‘an operating air carrier shall not be obliged to pay compensation … 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’. (39)
53. In the present proceedings, it is likely that the cancellation could be considered to have been caused by extraordinary circumstances which will, thus, exclude any compensation. As Advocate General Medina stated in UFC – Que choisir and CLCV, a pandemic such as that of COVID-19 ‘fulfils, in general, the constituent elements of the definition of “unavoidable and extraordinary circumstances”. Indeed, it is a situation beyond anyone’s control and the consequences of which could not have been avoided even if all reasonable measures had been taken’. (40)
54. It is probably for that reason that the request for a preliminary ruling does not mention any issue concerning possible compensation sought by TW against the air carrier under Article 7 of Regulation No 261/2004. That would be, at any rate, something for the referring court to rule on.
2. Assistance (and care)
55. Pursuant to Article 5(1)(b) and Article 9 of Regulation No 261/2004, in the event of a flight cancellation, passengers should be offered meals and refreshments, hotel accommodation, transport between airport and accommodation and ‘free of charge two telephone calls, telex or fax messages, or emails’. Nevertheless, it is clear from those provisions that only the latter type of assistance should be offered in a situation such as that at issue in the main proceedings, where the cancellation of the return flight does not lead to any delay in the departure of the passenger in question. (41)
56. That said, there is an additional form of assistance which air carriers are required to provide in case of cancellation of flights, despite it not being expressly listed as such in Article 9 of Regulation No 261/2004: namely, the duty to inform the passenger of the cancellation of the flight and of his or her rights. It follows from the wording of Article 5(1)(c), (2) and (4) of Regulation No 261/2004, read in the light of recitals 12 and 20 thereof, that air carriers must inform the passenger of the cancellation of the flight. That obligation must be understood as requiring the air carrier to inform the passengers promptly, after the flight is cancelled, so that those passengers can make other arrangements and exercise their rights effectively. (42) For example, that obligation may include the need to alert the passengers that one or more repatriation flights are being organised (even if the air carrier is unable to offer seats on those flights to the passengers).
57. As the Court confirmed in the judgment in McDonagh, air carriers cannot be considered to be exempt from fulfilling their obligations with regard to the assistance and care of passengers in the case of exceptional circumstances. (43) In fact, it is in those very situations that passengers may most need them to fulfil their obligations to provide assistance and care.
58. My understanding is that TW and his wife were not informed by Austrian Airlines of the cancellation of the flight, but rather by the tour operator. It is, however, not indicated whether the communication by the tour operator was made within a reasonable time after the cancellation of the flight, or with a delay that could have prevented TW from making alternative arrangements.
59. It is – again – for the referring court to make appropriate enquiries in that regard. It is, more generally, for that court to determine whether TW proved that he had suffered damage as a result of Austrian Airlines’ failure to inform him of the flight cancellation and, if so, to determine the amount of the compensation due. (44) As Advocate General Sharpston stated in Sousa Rodríguez and Others, ‘even though such compensation is not explicitly provided for, it is clear that the obligation to provide care and assistance would be nugatory if it could not be enforced’. (45)
60. In this context – in the light of the referring court’s formulation of the second question – I would only add, in passing, that the payment made by TW and his wife to the Ministry for the repatriation flight cannot, to my mind, be considered to have been caused by the air carrier’s failure to provide adequate care.
3. Reimbursement or re-routing
61. Pursuant to Article 5(1)(a) and Article 9 of Regulation No 261/2004, in the event of a flight cancellation, passengers should be offered, in principle, the choice between reimbursement of the full cost of the ticket for the part of the journey not made, and re-routing ‘under comparable transport conditions’, at the earliest opportunity or at the passenger’s convenience.
62. From the request for a preliminary ruling, I understand that, because of the public measures adopted at the relevant time to combat the pandemic, there were no alternatives to re-rout TW and his wife ‘under comparable transport conditions’, at least for the foreseeable future. The re-routing option was, thus, either impossible, or very unlikely to be possible within a reasonable time. (46) In any event, the obligation to propose re-routing ceases to exist, arguably, when a passenger has chosen to avail himself or herself of a repatriation flight. (47)
63. However, the obligation of the air carrier to reimburse the passengers of the full cost of the cancelled journey, ‘at the price at which it was bought’, still stands. Not only is that obligation not subject to any condition (unlike the obligation to provide certain forms of assistance) or exception (unlike the obligation to provide compensation), but it also applies – as expressly stated by Article 8(2) of Regulation No 261/2004 – ‘to passengers whose flights form part of a package, except for the right to reimbursement where such right arises’ under, what is now, Directive 2015/2302.
64. That appears to be the case of TW and his wife, if my understanding is correct.
65. In the light of all the above, I suggest that the Court answer the second question to the effect that Articles 5 and 7 to 9 of Regulation No 261/2004 require the air carrier, when a return flight has to be cancelled for reasons relating to a pandemic such as that of COVID-19, and the passenger had to register himself or herself for a repatriation flight, to: (i) provide compensation for the harm sustained by the passenger because of the air carrier’s failure to inform him or her of the flight cancellation and of his or her rights, and (ii) reimburse the passenger the full cost of the ticket for the part of the journey not made.
C. Concluding remarks
66. Finally, I would like to add some concluding remarks which may, hopefully, provide further assistance to the referring court in adjudicating the dispute pending before it. Indeed, it seems to me that an alternative route to that outlined above is open to TW to seek some form of compensation for the amount paid in excess in relation his return flight. (48)
67. As mentioned, TW and his wife appear to have purchased the flight ticket in the context of a travel package. That entails the applicability of the provisions of Directive 2015/2302. As the Court has recently ruled in the judgment in FTI Touristik (Package travel to the Canary Islands), (49) Article 14(1) of that directive entitles travellers to a price reduction for lack of conformity in the performance of the package contract, (50) even in circumstances where the lack of conformity is due to restrictions imposed to prevent the spread of an infectious disease such as COVID-19. Indeed, the right to a price reduction is only subject to the condition that there was lack of conformity which was not attributable to the traveller. The existence of exceptional circumstances which may have provoked the lack of conformity does not exonerate the organiser in that respect.
68. In my view, the price reduction which TW and his wife are entitled to should, in principle, correspond to the cost of the return flight that was cancelled.
69. Finally, and merely in passing, I would like to point out that Article 12(1) of Regulation No 261/2004 states that that regulation applies ‘without prejudice to a passenger’s rights to further compensation’, and that ‘the compensation granted under [that regulation] may be deducted from such compensation’. As the Court ruled in the judgment in Sousa Rodríguez and Others, the term ‘further compensation’ used in that provision ‘allows the national court to award compensation, under the conditions provided for by the Montreal Convention or national law, for damage, including non-material damage, arising from breach of a contract of carriage by air’. That said, the Court has also made clear that Article 12 of that regulation does not provide ‘the legal basis for the national court to order an air carrier to reimburse to passengers whose flight has been delayed or cancelled the expenses the latter have had to incur because of the failure of that carrier to fulfil its obligations to assist and provide care under Article 8 and Article 9 of Regulation No 261/2004’. (51)
70. In other words, should TW and his wife have suffered some harm additional to, and of different nature than that which arose as a result of Austrian Airlines’ failures to comply with the obligations set out in Regulation No 261/2004, further compensation could be sought under national law.
71. In conclusion, it seems to me that TW has valid reasons to claim – simply put – that he ended up paying the return flight for himself and his wife twice: once to the air carrier, and once to the Ministry. However, I see no basis in the provisions of Regulation No 261/2004 for TW to claim, from the air carrier, the reimbursement of the amount paid as an obligatory contribution for the repatriation flight to the Ministry. Conversely, Article 5(1)(a) and Article 8(1) of Regulation No 261/2004 entitle him to seek reimbursement of the full cost of the ticket for the return flight. Alternatively, he may be entitled to a claim from the tour operator, under Article 14(1) of Directive 2015/2302, a price reduction for the lack of conformity in the performance of the package contract, because of the unavailability of the return flight.
V. Conclusion
72. In the light of all the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows:
– a repatriation flight operated in the exercise of a Member State’s sovereign functions cannot be regarded as ‘re-routing, under comparable transport conditions’ within the meaning of Article 5(1)(a) 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; and
– Articles 5 and 7 to 9 of Regulation No 261/2004 require the air carrier, when a return flight has to be cancelled for reasons relating to a pandemic such as that of COVID-19, and the passenger had to register himself or herself for a repatriation flight, to: (i) provide compensation for the harm sustained by the passenger because of the air carrier’s failure to inform him or her of the flight cancellation and of his or her rights; and (ii) reimburse the passenger the full cost of the ticket for the part of the journey not made.