On 17 October 2024, the Court of Justice handed down its judgment in Joined Cases C‑650/23 and C‑705/23, E EAD v DW and Flightright GmbH v Condor Flugdienst GmbH, on the interpretation of Articles 2(j), Article 4 and Article 7(1) of Regulation (EC) No 261/2004. The requests have been made in proceedings between, on the one hand, E EAD, an air carrier, and DW, a passenger, and, on the other hand, Flightright GmbH (“Flightright”), a legal assistance company to which two air passengers have assigned any rights to compensation, and Condor Flugdienst GmbH (“Condor”), an air carrier, concerning compensation for those passengers pursuant to Regulation No 261/2004.

The tour operator with whom he had booked a package holiday confirmed DW’s flight from Heraklion to Linz, which should have been operated by E EAD at 18.00 on 29 September 2019. The day before, however, DW received a notification from the tour operator informing him that the flight’s final destination was now Vienna-Schwechat and that the departure was scheduled at 23.30, so that he did not present himself for check-in for the originally planned flight. At a later time, DW claimed compensation of EUR 400 from E EAD claiming that if the tour operator is authorised to issue an air ticket on behalf of the air carrier, nothing to the contrary could apply to any subsequent changes of his reservation. Since DW’s complaint was upheld by the Bezirksgericht Schwechat (District Court of Schwechat), E EAD 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.

Similarly, two passengers had booked, through a tour operator, a package tour including outbound and return flights between Düsseldorf and Fuerteventura which were to be operated by Condor. The tour operator, however, notified those two passengers that the outbound flight had been cancelled and that their booking had been changed, so that they presented themselves two days later than the one initially scheduled. Since the flight was operated as originally planned,Flightright, to whom the two passengers assigned their rights, brought an action before the Amtsgericht Düsseldorf(Local Court of Düsseldorf) seeking payment of compensation totalling EUR 800 on the basis of Regulation No 261/2004. The claim, however, was dismissed, and so Flightright brought an appeal before the Landgericht Düsseldorf (Regional Court of Düsseldorf; the “referring court”), which also decided to stay the proceedings and to refer to the Court of Justice.

By their respective questions, therefore, the referring courts asked whether Article 4(3) of Regulation No 261/2004, read in combination with Article 2(j) thereof, must be interpreted as meaning that an air passenger who, in the context of a package tour, had a confirmed reservation for a flight, may seek compensation from the operating air carrier as provided for in Article 7(1) of that regulation where the operator of that tour, without informing the latter in advance, notified that passenger that the originally planned flight would not be performed, whereas it was operated as planned.

According to the Court an operating air carrier, which has informed a passenger in advance that, against his/her will, it is going to deny him or her boarding in respect of a flight for which he or she has a confirmed reservation, must compensate that passenger even if he or she did not present himself or herself for boarding under the conditions set out in Article 3(2) of Regulation No 261/2004, notwithstanding the fact that the information relating to denied boarding was communicated in advance to the passenger not by the operating air carrier but by the tour operator. The operating air carrier, indeed, can be held responsible for incorrect information relating to the postponement or cancellation of a flight which the tour operator communicated to passengers, who, according to Regulation No 261/2004, may rely without distinction on information provided by the former or the latter concerning the time of boarding or their transfer to another flight.

Marco Stillo