On 7 April 2022, the Court of Justice handed down its judgment in Case C‑561/20, Q and others v United Airlines Inc.,on the interpretation of Article 3(1)(a), read in conjunction with Articles 6 and 7, of Regulation (EC) No 261/2004 as well as on the validity of the Regulation itself in the light of international law and, in particular, of the principle of the complete and exclusive sovereignty of a State over its territory and airspace. The request has been made in proceedings between Q, R and S, on the one hand, and United Airlines Inc. (“United Airlines”) on the other, concerning the payment of compensation for a delayed connecting flight.

Q, R and S made a single reservation with Deutsche Lufthansa AG (“Lufthansa”) for a connecting flight from Brussels to San José, with a stopover in Newark, which was operated by United Airlines, an air carrier established in a third State. Since they arrived at their final destination with a delay of 223 minutes, the passengers summoned United Airlines to appear before the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Dutch-speaking Companies Court; the “referring court”) seeking an order requiring it to pay compensation in the amount of EUR 600 per person. In light of the need to interpret the relevant European legislation, therefore, the referring court decided to stay the proceedings and to refer to the Court of Justice two questions a preliminary ruling.

By its first question, the referring court asked whether Article 3(1)(a), read in conjunction with Articles 6 and 7 of Regulation No 261/2004, must be interpreted as meaning that a passenger on a connecting flight, comprising two legs and subject to a single booking with a Community carrier, departing from an airport located in the territory of a Member State and arriving at an airport located in a third country via another airport in that third country, is entitled to compensation from the third-country air carrier which operated the entirety of that flight, where that passenger has reached his or her final destination with a delay of more than three hours caused in the second leg of the said flight

According to the Court, since connecting flights that have been subject to a single booking must be regarded as constituting a whole for the purposes of passengers’ right to compensation provided for by Regulation No 261/2004, and since its applicability must be assessed in the light of the initial place of departure and the final destination of those flights, the place where a delay occurs has no bearing on that applicability. Furthermore, an air carrier which, in the course of its air passenger carriage activities, decides to perform a particular flight, including fixing its itinerary, and, by so doing, offers to conclude a contract of air carriage with members of the public, must be regarded as the operating air carrier according to Regulation 261/2004, and therefore the absence of a contractual link between the latter and the operating air carrier is irrelevant provided that it has established its own contractual relationship with that having a contract with those passengers.

By its second question, the referring court asked whether Regulation No 261/2004 is valid in the light of the principle of customary international law according to which each State has complete and exclusive sovereignty over its airspace, in that that regulation applies to passengers on a connecting flight departing from an airport located in the territory of a Member State to an airport located in the territory of a third country, the significant delay of which is caused in a leg of that flight operated in the territory of that third country.

According to the Court, the European institutions cannot be considered to have committed a manifest error of assessment in adopting Regulation No 261/2004 as regards the conditions for the application of the principle of customary international law according to which each State has complete and exclusive sovereignty over its airspace, and therefore there is no factor such as to affect its validity.

Marco Stillo