On 8 June 2023, the Court of Justice handed down its judgment in Case C‑49/22, Austrian Airlines AG v TW, on the interpretation of Article 5(1)(a) and Article 8(1)(b) of Regulation (EC) No 261/2004. The request has been made in proceedings between Austrian Airlines AG (“Australian Airlines”) and TW concerning the carrier’s refusal to reimburse to TW and his wife the sum they had to pay for a repatriation flight organised by the Republic of Austria in the context of its consular tasks, following the cancellation of their flight by Austrian Airlines due to the coronavirus outbreak.

As part of a package holiday, TW and his wife each had a confirmed reservation for flight OS 17, on 7 March 2020, from the airport in Vienna to Mauritius, as well as for flight OS 18, on 20 March 2020, from the airport on Mauritius to Vienna. While the first flight went ahead as scheduled, Austrian Airlines cancelled the second one as a result of the measures taken by the Austrian Government due to coronavirus without informing TW and his wife of that cancellation or of their rights under Regulation 261/2004. On the contrary, it was not until 19 March 2020 that they were notified of the cancellation of their return flight and the organisation of a repatriation one by the Austrian Ministry of Foreign Affairs, scheduled for 20 March 2020.

TW and his wife registered for that flight on the website of the Ministry of Foreign Affairs, and each of them had to pay an obligatory contribution to costs of EUR 500. By an action brought before the Bezirksgericht Schwechat (District Court of Schwechat), therefore, TW requested that Austrian Airlines be ordered to pay him the sum of EUR 1 000, corresponding to the obligatory contribution that he and his wife had had to pay for the repatriation flight. Since TW’s application was upheld, Austrian Airlines brought an appeal before the Landesgericht Korneuburg (Regional Court of Korneuburg; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice two questions for a preliminary ruling.

By the first question, the referring court asked whether Article 5(1)(a) of Regulation No 261/2004 must be interpreted as meaning that a repatriation flight, organised by a Member State in the context of consular assistance, following the cancellation of a flight, constitutes “re-routing, under comparable transport conditions, to [the] final destination”, within the meaning of Article 8(1)(b) of that regulation, which must be offered by the operating air carrier to the passenger whose flight has been cancelled.

According to the Court, offering a “re-routing’, within the meaning of Article 8(1) of Regulation No 261/2004, cannot be limited, for the operating air carrier concerned, to take the air passenger to his or her final destination on the flight following the one cancelled. Such an offer, indeed, may include other flights, including connecting ones, which may be operated by other air carriers, whether or not belonging to the same airline alliance, arriving at a scheduled time that is not as late as the flight following the cancelled flight. The scope of Regulation No 261/2004, however, cannot be extended to flights of a non-commercial nature, which may not be involved in the implementation of such re-routing.

By the second question, instead, the referring court asked whether Article 8(1) of Regulation No 261/2004 must be interpreted as conferring on a passenger who, following the cancellation of his or her return flight, has had to register himself or herself on a repatriation flight organised by a Member State in the context of consular assistance and, on that basis, pay a compulsory contribution to costs, a right to reimbursement of those costs at the expense of the operating air carrier.

According to the Court, although Regulation No 261/2004 applies without prejudice to a passenger’s rights to further compensation, such compensation must be based on national or international law. Article 8(1) of Regulation No 261/2004, therefore, cannot be interpreted as meaning that a passenger who, following the cancellation of his or her return flight, registers himself or herself for a repatriation flight organised by a Member State has, on the basis of that regulation, a right to reimbursement by the operating air carrier of his or her contribution to the additional costs that he or she had to pay in order to be booked on that flight. Such a passenger, however, is justified in claiming a right to compensation when an operating air carrier has failed to fulfil its obligations under Articles 8 and 9 of Regulation No 261/2004.

Marco Stillo