On 3 September 2020, the Court of Justice held its judgment in Case C‑530/19, NM v ON, on the interpretation of Article 9(1)(b) of Regulation (EC) No 261/2004. The request has been made in proceedings between NM, acting as liquidator of NIKI Luftfahrt GmbH (“NIKI Luftfahrt”), and ON concerning a claim for damages brought by the latter seeking compensation for harm suffered on the premises of a hotel in which NIKI Luftfahrt had accommodated her following the cancellation of her flight.

Since the flight from Mallorca (Spain) to Vienna (Austria) was cancelled and scheduled for the evening of the following day, a rebooking was made, and ON was offered accommodation free of charge by NIKI Luftfahrt in a local hotel. However, during her stay at that hotel, ON, who is confined to a wheelchair, fell and was seriously injured after the front wheels of her chair got caught in a transverse gutter channel in a pathway. ON brought an action before the Landesgericht Korneuburg (Regional Court, Korneuburg) requesting NM be ordered to pay damages by way of compensation for the harm suffered, claiming that the employees of the operator of that hotel had acted negligently. 

Since the action was dismissed, ON lodged an appeal before the Oberlandesgericht Wien (Higher Regional Court, Vienna), which set aside that judgment. Therefore, NM therefore brought an appeal on a point of law before the Oberster Gerichtshof (Supreme Court of Austria; the “referring court”) which, in light of the need to interpret the relevant European legislation, stayed the proceedings and asked the Court of Justice two preliminary questions.

By its second question, which the Court examined as first in light of its relevance, the referring court asked whether Article 9(1)(b) of Regulation No 261/2004 is to be interpreted as meaning that the obligation of the air carrier to offer hotel accommodation free of charge to the passengers referred to in the provision means that that carrier is required not only to find a hotel room for those passengers and to cover the costs thereof, but also to take care of the accommodation arrangements as such. According to the Court, in light of the wording, the context and the objectives pursued by the rules of which Article 9(1)(b) of Regulation No 261/2004 is part, an interpretation whereby the air carrier must, on its responsibility, take care of the accommodation arrangements of the passengers concerned itself cannot be accepted, as the operations necessary to fulfil such an obligation go beyond the scope of the scheme for standardised and immediate on-the-spot assistance that the EU legislature intended to establish for the benefit of passengers.

By its first question, the referring court asked whether Regulation No 261/2004 is to be interpreted as meaning that an air carrier which, under Article 9(1)(b), has offered hotel accommodation to a passenger whose flight has been cancelled may be required, on the basis of that regulation alone, to compensate that passenger for damage caused by fault on the part of employees of that hotel. According to the Court, the passengers’ right to compensation where the air carrier has failed to fulfil its obligation to provide care laid down in Article 9 of Regulation No 261/2004 applies only to the reimbursement of amounts which, in the light of the specific circumstances of each case, prove necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in providing that care. On the contrary, compensation for individual damage as a result of fault on the part of employees of the hotel selected by the air carrier for the purpose of providing the accommodation referred to in the above-mentioned article necessarily requires a case-by-case assessment of the extent of that damage, going beyond the scope of the standardised and immediate compensatory measures provided for by Regulation No 261/2004.

Marco Stillo