Request for a preliminary ruling from the Landesgericht Korneuburg (Austria) lodged on 10 December 2020 – L GmbH v FK

(Case C-672/20)

Language of the case: German

Referring court

Landesgericht Korneuburg

Parties to the main proceedings

Applicant: L GmbH

Defendant: FK

Questions referred

Is Article 3(2)(a) of Regulation (EC) No 261/2004 ¹ (‘the Air Passenger Rights Regulation’) to be interpreted as meaning that the Regulation applies to a passenger who has already [Or. 2] checked in online before arriving at the airport and is not carrying any checked baggage; acknowledges the flight delay shown on the airport’s departure board, waits at the departure gate for further information and makes an enquiry at the air carrier’s counter regarding the departure of the booked flight; does not receive any explanation as to whether and when the flight will leave nor any offer of a replacement flight from the defendant’s staff; and thereupon books another flight to his final destination himself, without boarding the originally booked flight?

Is Article 5(3) of the Air Passenger Rights Regulation to be interpreted as meaning that an air carrier is not obliged to pay compensation in accordance with Article 7 of the Regulation, if it arrives at the passenger’s final destination after a delay of eight hours and nineteen minutes, because the aircraft was damaged by a lightning strike during the first of three preceding flights; the technician from the air carrier’s contracted maintenance company who was called in after landing found only minor damage that did not affect the airworthiness of the aircraft (‘some minor findings’); the second of three preceding flights went ahead; however, during the course of a pre-flight check before the third of three preceding flights, it emerged that the aircraft was not fit for further use for the time being; and the air carrier therefore used a replacement aircraft in place of the originally intended, damaged aircraft, which completed the third of the preceding flights with a departure delay of seven hours and forty minutes?

Is Article 5(3) of the Air Passenger Rights Regulation to be interpreted as meaning that the reasonable measures to be taken by the air carrier include offering to rebook the passenger on a different flight, which would have enabled him to reach his final destination with a delay of five hours [Or. 3] (and actually did so as a result of the booking made on his own initiative), even though the air carrier operated the flight with a replacement aircraft in place of the now unfit aircraft, with which the passenger would have reached his final destination with a delay of eight hours and nineteen minutes?

____________

¹ 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).