On 21 December 2021, the Court of Justice handed down its judgment in Case C‑263/20, Airhelp Limited v Laudamotion GmbH, on the interpretation of Article 5(1)(c) and Article 7 of Regulation No 261/2004 and of Article 11 of Directive 2000/31/EC. The request has been made in proceedings between Airhelp Limited (“Airhelp”) and Laudamotion GmbH (“Laudamotion”) concerning the latter’s refusal to compensate air passengers, who had assigned their rights to Airhelp, for having brought forward their flight.

Two passengers reserved a flight operated by Laudamotion from Palma de Mallorca to Vienna through an online booking platform, which therefore generated a specific electronic address. Since the reserved flight, initially scheduled to depart on 14 June 2018 at 14.40, was brought forward by Laudamotion to 8.25 on the same day, Airhelp, to which the two passengers assigned any right to compensation arising out of Regulation No 261/2004, brought an action before the Bezirksgericht Schwechat (District Court of Schwechat) claiming a EUR 500 compensation since the flight in question had been brought forward by more than six hours and the passengers had not been notified of that fact until four days before the scheduled departure. The Bezirksgericht Schwechat dismissed the action brought by Airhelp, which then lodged an appeal with 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 three questions for a preliminary ruling.

By its first question, the referring court asked whether Article 2(l) and Article 5(1)(c) of Regulation No 261/2004 must be interpreted as meaning that a flight is regarded as being cancelled where the operating air carrier brings it forward by several hours. Given the need to distinguish between situations in which the bringing forward of a flight does not have any effect, or has a negligible one, on the ability of air passengers to use their time as they wish and those resulting in serious inconvenience, according to the Court the reference point for determining whether a flight has been brought forward by a significant amount of time or a negligible one for the purposes of Article 5 of Regulation No 261/2004 is whether it has been brought forward by more than one hour, by one hour or by less than one hour, and therefore a flight is regarded as being cancelled in the case where the operating air carrier brings it forward by more than one hour.

By its second question, the referring court asked whether compliance with the requirement to inform the air passenger of the cancellation of his or her flight in good time must be assessed solely in accordance with Article 5(1)(c) of Regulation No 261/2004 and not in accordance with the national law transposing Article 11 of Directive 2000/31 on receipt in the context of contracts concluded by electronic means. According to the Court, notification of a flight cancellation within the meaning of Article 5 of Regulation No 261/2004 constitutes neither an “order” nor an “acknowledgement of receipt” for the purposes of Article 11 of Directive 2000/31, and therefore a situation such as that in the main proceedings falls outside the material scope of the latter.

By its third question, the referring court asked whether Article 5(1)(c)(i) of Regulation No 261/2004 must be interpreted as meaning that an air passenger who reserved a flight through an intermediary is regarded as having been informed of the cancellation of that flight in the case where the operating air carrier transmitted the information relating to that cancellation to that intermediary, through which the contract of carriage by air was concluded with that passenger, at least two weeks before the scheduled time of departure, but that intermediary did not inform the passenger of that cancellation within the period referred to in that provision. According to the Court, where it is unable to prove that the passenger concerned was informed of the cancellation of his or her flight at least two weeks before the scheduled time of departure, the operating air carrier is required to pay compensation in accordance with Article 7 of Regulation No 261/2004 not only when the contract for carriage has been entered into directly with the passenger concerned, but also via a third party.

Marco Stillo