Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

16 May 2024 (*)

(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Compensation for air passengers in the event of long delay of flights – Article 5(3) – Exemption from the obligation to pay compensation – Extraordinary circumstances – Shortage of staff of the airport operator providing baggage loading services)

In Case C‑405/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Köln (Regional Court, Cologne, Germany), made by decision of 22 June 2023, received at the Court on 3 July 2023, in the proceedings

Touristic Aviation Services Limited

v

Flightright GmbH,

THE COURT (Ninth Chamber),

composed of O. Spineanu-Matei, President of the Chamber, S. Rodin (Rapporteur) and L.S. Rossi, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Touristic Aviation Services Ltd, by S. Hendrix, Rechtsanwältin,

–        Flightright GmbH, by M. Michel and R. Weist, Rechtsanwälte,

–        the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,

–        the European Commission, by G. von Rintelen and N. Yerrell, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2        The request has been made in proceedings between Touristic Aviation Services Limited (‘TAS’) and Flightright GmbH concerning compensation claimed by Flightright, to which air passengers had assigned their rights, from TAS, in its capacity as operating air carrier, following the long delay of a flight.

 European Union law

3        Article 5 of Regulation No 261/2004 provides:

‘1.      In case of cancellation of a flight, the passengers concerned shall

…

(c)      have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(i)      they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii)      they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii)      they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

…

3.      An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

…’

4        Article 7(1) of that regulation provides:

‘Where reference is made to this Article, passengers shall receive compensation amounting to:

(a)      EUR 250 for all flights of 1 500 kilometres or less;

(b)      EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;

(c)      EUR 600 for all flights not falling under (a) or (b).

…’

 The dispute in the main proceedings and the question referred for a preliminary ruling

5        On 4 July 2021, the arrival of a flight which had departed from Cologne Bonn airport (Germany) and was destined for Kos airport (Greece) (‘the flight in question’), operated by TAS, was delayed by 3 hours and 49 minutes.

6        That delay was due to the fact that, first, the preceding flight had already been delayed by 1 hour and 17 minutes because of a shortage of staff responsible for checking in passengers, secondly, the loading of baggage onto the plane had been slowed down as there had also been an insufficient number of staff of the airport operator responsible for that service, which gave rise to an extra delay of 2 hours and 13 minutes, and, thirdly, the weather conditions arising after the doors were closed also delayed the flight by 19 minutes.

7        In that context, Flightright, to which a certain number of passengers of the flight in question assigned their rights to compensation, brought an action before the Amtsgericht Köln (Local Court, Cologne, Germany), seeking an order that TAS pay it an amount of EUR 800 per passenger, plus interest, in accordance with Regulation No 261/2004. Flightright claimed before that court that the delay of the flight in question could not be explained by extraordinary circumstances within the meaning of Article 5(3) of that regulation.

8        That court upheld that action without examining the latter question, holding that that delay could, in any event, have been avoided by TAS if it had taken all reasonable measures to counteract it. Since TAS itself claimed that it had only belatedly received the time slots for the preceding flight, it had to be inferred that it knew that the flight in question would be delayed by at least three hours. According to that court, TAS failed to establish that it had then adopted all reasonable measures in its power to avoid or reduce that delay.

9        TAS lodged an appeal before the Landgericht Köln (Regional Court, Cologne, Germany), which is the referring court. That court is of the opinion that the court of first instance should have examined the question of whether the shortage of staff of the operator of Cologne Bonn airport, which TAS alleged to have caused the long delay of the flight in question, constituted an ‘exceptional circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004.

10      If that question is answered in the affirmative, TAS should not be required to compensate Flightright, in so far as the part of the delay of the flight in question attributable to TAS does not amount to three hours. If, by contrast, it had to be held that the baggage loading operations, independently of the fact that they were carried out by the airport operator, are inherent in the normal exercise of the activity of the air carrier, within the meaning of the case-law of the Court of Justice, it would follow that the fact of there being an insufficient number of that operator’s staff cannot be classified as an ‘exceptional circumstance’. It would be necessary in that case to uphold the order that TAS pay compensation, since only the delay of 19 minutes due to the weather conditions after the doors closed could be taken into account, leaving a delay of more than 3 hours for which TAS is responsible.

11      According to the referring court, first, the baggage loading service can be considered inherent in the normal exercise of the activity of the air carrier, within the meaning of the case-law of the Court, in so far as it directly serves the purpose of carrying out the transport service owed to the passengers by the air carrier concerned, independently of the fact that it is for the airport operator to carry out that service. Secondly, it may follow from the very fact that that service is carried out by that operator, and not by the air carrier itself or by a provider of those services designated by it, that the shortage of loading staff should be held to constitute an ‘external cause’ beyond that transporter’s control that impacted its normal activity, which would justify it being exempted from its obligation to pay compensation. That court specifies that, in Germany, that service is carried out, in principle, by an airport management company, even if German legislation provides that the users of an airport may also carry out ground handling services themselves or have a service provider of their choice do so.

12      In those circumstances, the Landgericht Köln (Regional Court, Cologne) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 5(3) of [Regulation No 261/2004] to be interpreted as meaning that a shortage of staff at the airport operator, or at a company commissioned by the airport operator, responsible for handling the baggage loading operations to be provided by that airport operator, constitutes an extraordinary circumstance, within the meaning of that provision, that has an external and uncontrollable effect on the normal activity of the air carrier using that service of the airport operator / company commissioned by that airport operator, or is the loading of baggage by the airport operator / a company commissioned by that airport operator and a shortage of loading staff at that airport operator / company commissioned by that airport operator to be classified as part of the normal exercise of the activity of that air carrier, such that an exculpation as provided for under Article 5(3) of [that provision] can be considered only if the reason for the shortage of staff constitutes an extraordinary circumstance within the meaning of that provision?’

 Admissibility of the request for a preliminary ruling

13      Flightright argues that the request for a preliminary ruling is inadmissible in so far as it omits information necessary for answering the question referred, namely whether TAS exercises control over the operator of Cologne Bonn airport, which is responsible for the operations of loading baggage onto planes, by virtue of their binding contractual relationship.

14      It must be borne in mind that, according to the settled case-law of the Court, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, which enjoy a presumption of relevance. Therefore, where the question referred concerns the interpretation or validity of a rule of EU law, the Court is, in principle, required to give a ruling, unless it is quite obvious that the interpretation sought bears no relation to the actual facts or object of the main proceedings, the problem is hypothetical, or the Court does not have before it the factual or legal material necessary to give a useful answer to that question (judgment of 22 February 2024, Unedic, C‑125/23, EU:C:2024:163, paragraph 35).

15      In the present case, while it is true that the referring court does not specify, in its request for a preliminary ruling, whether or not TAS exercises effective control over the operator of Cologne Bonn airport, that does not prevent the Court from giving a useful answer to the question referred by taking account of both possibilities.

16      It follows that the request for a preliminary ruling is admissible.

 Consideration of the question referred

17      By its question, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the fact of there being an insufficient number of staff of the airport operator responsible for the operations of loading baggage onto planes may constitute an ‘extraordinary circumstance’ within the meaning of that provision.

18      In that context, it should be remembered, first of all, that Articles 5 and 7 of Regulation No 261/2004, read in the light of the principle of equal treatment, must be interpreted as meaning that passengers whose flights are delayed, first, may be treated, for the purposes of the application of the right to compensation provided for in Article 7(1) of that regulation, as passengers whose flights are cancelled and, secondly, may rely on that right to compensation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier (judgment of 25 January 2024, Laudamotion and Ryanair, C‑54/23, EU:C:2024:74, paragraph 19 and the case-law cited).

19      Accordingly, under Article 5(1)(c) of Regulation No 261/2004, passengers affected by a flight delayed by three hours or more by the time of its arrival at its final destination have the right to compensation by the operating air carrier, in accordance with Article 7(1) of that regulation, unless they have been informed in advance of that delay within the time frames laid down in Article 5(1)(c)(i) to (iii) of that regulation.

20      However, such a delay does not entitle passengers to compensation if the operating air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, within the meaning of Article 5(3) of Regulation No 261/2004 (judgment of 7 July 2022, SATA International – Azores Airlines (Failure of the refuelling system), C‑308/21, EU:C:2022:533, paragraph 19 and the case-law cited).

21      According to the settled case-law of the Court, the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that carrier’s actual control; those two conditions are cumulative and their fulfilment must be assessed on a case-by-case basis (judgment of 11 May 2023, TAP Portugal (Death of the co-pilot), C‑156/22 to C‑158/22, EU:C:2023:393, paragraph 18 and the case-law cited).

22      In the present case, although the delay of more than three hours, determined when the flight in question arrived, was due to several factors, the question referred for a preliminary ruling exclusively concerns the delay linked to the shortage of staff assigned by the airport operator to loading baggage.

23      In the first place, so far as concerns the condition that the event in question must not be, by its nature or origin, inherent in the normal exercise of the activity of the air carrier concerned, the Court has held, as regards aircraft refuelling operations, that, even if those operations fall, in principle, within the scope of the normal exercise of an air carrier’s activity, an issue which arises during those operations and is the result of a general failure in the refuelling system managed by the airport satisfies that condition since such an event cannot be regarded as intrinsically linked to the operation of the aircraft which completed the delayed flight (see, to that effect, judgment of 7 July 2022, SATA International – Azores Airlines (Failure of the refuelling system), C‑308/21, EU:C:2022:533, paragraphs 22 and 23).

24      It is for the referring court to determine, in light of the circumstances of the case in the main proceedings, whether, in the present case, the failures in the baggage loading operations must be regarded as general failures, in accordance with the case-law referred to in the preceding paragraph. If that were the case, such failures would not be capable of constituting, by their nature or origin, an event which is inherent in the normal exercise of the activity of the air carrier concerned.

25      In the second place, as regards the condition that the event in question must be beyond the actual control of the operating air carrier concerned, it must be noted that events whose origin is ‘internal’ must be distinguished from those whose origin is ‘external’ to that air carrier. That concept thus encompasses, by way of the occurrence of such ‘external’ events, those which result in part from the activity of the air carrier and from external circumstances which are more or less frequent in practice but which an air carrier does not control because they arise from a natural event or an act of a third party, such as another air carrier or a public or private operator interfering with flight or airport activity. That is the case in particular where the refuelling system at an airport which is managed by the operator of that airport or by a third party experiences a generalised breakdown (see, to that effect, judgment of 7 July 2022, SATA International – Azores Airlines (Failure of the refuelling system), C‑308/21, EU:C:2022:533, paragraphs 25 and 26).

26      In the present case, the referring court specifies that the loading of baggage onto TAS’s plane was slowed down on account of the shortage of staff assigned to those operations by the operator of Cologne Bonn airport.

27      It is for that court to determine, in light of the circumstances of the case in the main proceedings, whether the failures in the baggage loading operations at Cologne Bonn airport were beyond TAS’s control. In that regard, it should be noted that that would not be the case, in particular, if TAS was able to exercise effective control over the operator of that airport.

28      If the referring court finds that the long delay of the flight in question was actually due to extraordinary circumstances, within the meaning of Article 5(3) of Regulation No 261/2004, that court must also determine, having regard to all of the circumstances of the dispute in the main proceedings and the evidence adduced by the air carrier concerned, whether the latter has shown that those circumstances could not have been avoided even if all reasonable measures had been taken and that it adopted measures appropriate to the situation to avoid the consequences thereof, provided that this does not amount to an intolerable sacrifice in the light of the capacities of the air carrier’s undertaking at the relevant time (see, to that effect, judgment of 7 July 2022, SATA International – Azores Airlines (Failure of the refuelling system), C‑308/21, EU:C:2022:533, paragraph 27).

29      In that regard, it would be necessary to find that that air carrier was capable of avoiding the delay in the baggage loading, for example, if it was possible, in respect of that operation, for it to use the services of another service provider who had sufficient capacity to provide those services without delay, at the time when that air carrier knew or ought to have known that the airport operator did not have that capacity.

30      In the light of all the foregoing considerations, the answer to the question referred is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the fact of there being an insufficient number of staff of the airport operator responsible for the operations of loading baggage onto planes may constitute an ‘extraordinary circumstance’ within the meaning of that provision. However, in order to be exempted from its obligation to pay compensation to passengers provided for in Article 7 of that regulation, the air carrier whose flight has experienced a long delay on account of such an extraordinary circumstance is required to show that that circumstance could not have been avoided even if all reasonable measures had been taken and that it adopted measures appropriate to the situation to avoid the consequences thereof.

 Costs

31      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91,

must be interpreted as meaning that the fact of there being an insufficient number of staff of the airport operator responsible for the operations of loading baggage onto planes may constitute an ‘extraordinary circumstance’ within the meaning of that provision. However, in order to be exempted from its obligation to pay compensation to passengers provided for in Article 7 of that regulation, the air carrier whose flight has experienced a long delay on account of such an extraordinary circumstance is required to show that that circumstance could not have been avoided even if all reasonable measures had been taken and that it adopted measures appropriate to the situation to avoid the consequences thereof.

[Signatures]

*      Language of the case: German.

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