In July 2019, the Court of Justice held its judgment in Case C-163/18, HQ and Others v Aegean Airlines, on the right to reimbursement of the cost of the air ticket by the air carrier when the flight is part of a package tour.

The request for preliminary ruling has been made in proceedings between three passengers and the Greek airline Aegean Airlines concerning reimbursement of the cost of air tickets sought by the passengers following the annulment of a flight forming part of a package tour.

The passengers booked the flights through Hellas Travel, a travel agency established in the Netherlands. Those flights formed part of a ‘package tour’, the price of which was paid to Hellas Travel. The flights were to be operated by Aegean Airlines, which had entered into a contract to that effect with G.S. Charter Aviation Services, a company established in Cyprus: Aegean Airlines made available to G.S. Aviation Services a certain number of seats, in return for payment of a charter price. G.S. Charter subsequently resold those seats to third parties, including to Hellas Travel.

Following the cancellation of the trip and since Hellas Travel, declared insolvent on 3 August 2016, did not reimburse to the passengers the cost of their air tickets, they brought proceedings before the Rechtbank Noord-Nederland (District Court, Noord-Nederland, the Netherlands; the referring court) to obtain the reimbursement from the airline. In this context, the referring court asked the Court of Justice whether a passenger who, under Directive 90/314/EEC on package travel, has the right to hold his tour organiserliable for reimbursement of the cost of his air ticket, can also claim reimbursement of the cost of that ticket from the air carrier, on the basis of Regulation No 261/2004 on passenger rights.

According to the Court, the mere existence of a right to reimbursement, arising under Directive 90/314/EEC on package travel, is sufficient to rule out the possibility for a passenger, whose flight forms part of a package tour, to be able to claim reimbursement of the cost of his ticket, pursuant to Regulation No 261/2004 on passenger rights, from the operating air carrier. Therefore, the right to reimbursement of the cost of the ticket, pursuant to the regulation and the directive, are not cumulative. If they were, the passengers concerned would receive unjustified overcompensation, which would be to the detriment of the operating air carrier, which, in that case, would risk having to assume part of the liability of the tour organiser towards its clients.

Such conclusion remains unchanged also where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee that reimbursement. In that context, the Court points out that the directive provides, inter alia, that tour organisers must provide sufficient evidence of security for the refund of money paid over in the event of insolvency.

Sara Capruzzi