Op-Ed: “Court of Justice ruled that a repatriation flight is not a re-routing under EU Regulation 261/2004 on air passenger rights: Austrian Airways (vol de rapatriement) (C-49/22)” by Cyril-Igor Grigorieff

Regulation 261/2004 (the ‘Regulation’) sets out passengers’ legal rights in the occasion of denied boarding, prolonged delays and flight cancellations. In the latter situation, the Regulation primarily supplies that passengers have the appropriate: (1) to choose involving refund and re-routing (2) also, if vital, food and accommodation and (3) a standardised payment of amongst EUR 125 and EUR 600, unless the cancellation is due to extraordinary conditions or the passenger was knowledgeable of the cancellation effectively in advance. The Regulation is not unique as it expressly acknowledges that travellers could declare ‘further compensation’ beneath countrywide regulation or the 1999 Montreal Convention, the place relevant. While the Regulation has by now been interpreted extra than 50 occasions by the Courtroom of Justice, this is one of the very first occasions that the consequences of the pandemic have been analysed by the Courtroom.

In case Austrian Airways (vol de rapatriement) (C-49/22), the travellers had booked a return flight from Vienna (Austria) to Mauritius with Austrian Airlines. A number of hours ahead of their return, they were being educated that their flight scheduled on 20 March 2020 had been cancelled owing to the outbreak of the pandemic. In parallel, the Austrian government organised a repatriation flight that would depart on the exact same day of their cancelled flight at a charge of EUR 500 per passenger. This repatriation flight was operated by Austrian Airways, but less than a distinct flight quantity.

On their return, the travellers claimed reimbursement from the airline of the EUR 500 they experienced each paid out to embark on the repatriation flight. It is not obvious from the specifics of the situation whether or not the passengers experienced now attained refund for their cancelled flight.

Not sure whether these types of assert fell underneath the scope of the Regulation, the Korneuburg Regional Court docket questioned the Court of Justice irrespective of whether a repatriation flight could be thought of as a re-routing and whether the passengers could assert refund of the price tag they compensated for the repatriation flight.

In the absence of a definition of the expression ‘re-routing’ in the Regulation, the Court docket of Justice referred to the common interpretation resources: its common meaning in day to day language, the context and the most important aim pursued by the legislation. In this exercise, the Courtroom famous that the Regulation was based on Short article 100(2) TFEU which permitted European legislature to lay down provisions in the context of the ‘common transportation policy’. Obtaining explained that, the Courtroom underlined that the scope of the Regulation could not be extended to non-industrial flights, with the consequence that a repatriation flight, organised by a federal government, could not be considered as a re-routing.

The extensive assessment developed by the Advocate Normal also verified this issue. He also highlighted that it was not for the Court docket to change the harmony involving the rights of the passengers and that of the carriers by a resourceful interpretation. This place is worthy of emphasising presented the from time to time evolutive interpretations adopted by the Court.

When a repatriation flight has been ruled not to be a re-routing, the issue of reimbursement underneath the Regulation no longer serves any reason. The Court docket did, nevertheless, study additional the rights of the passengers in the occasion of a flight cancellation.

From this minute onwards, the composition of the Court’s reasoning is to some degree significantly less crystal clear than that of the Advocate Normal. The important elements, nonetheless, can be summarised as follows:

Very first, Posting 12 of the Regulation provides that more compensation could be claimed beneath nationwide law or the 1999 Montreal Conference, where by applicable. In practice, this signifies that given that the Regulation is not special, particular destruction, such as the 1 at stake, could possibly be compensated by way of the application of other legal devices. But Post 12 of the Regulation on the correct to acquire additional payment must not be thought of as a enough authorized basis on its individual.

Second, passengers are in standard situations entitled to pick amongst a reimbursement and a re-routing (both at the earliest chance or at the passenger’s benefit). But, when a re-routing is difficult, this kind of as in the current case, the proper to receive a reimbursement stays. The provider is therefore demanded to reimburse the ticket for the section of the journey not built or no for a longer time serving any objective (provided that the ticket was not aspect of a package regulated by the Directive 2015/2302 on bundle journey and connected travel arrangements).

3rd, the working air carrier need to inform the travellers of their rights and the unique choices obtainable which includes the place re-routing is not possible.

Fourth, in no scenario these legal rights could be suspended as the Regulation does not create a class of ‘particularly extraordinary’ functions. Only the standardised payment ranging from EUR 125 to EUR 600 could be denied in the scenario of ‘extraordinary circumstances’.

In light of these elements, the Court ruled that even if a repatriation flight cannot be thought of as a re-routing and thus are not able to be refunded, the travellers can nonetheless invoke, in advance of a nationwide choose, the failure of an functioning provider to comply with: (1) its obligation to reimburse the price of the ticket for the portion not designed or no for a longer time serving any intent and, (2) its responsibility to deliver details. The Court provides that the payment to be awarded ought to be restricted to what, in gentle of the particular situation of the circumstance, proves vital, suitable and acceptable to cure the shortcomings of the functioning carrier.

This decision will come as no shock given the case legislation formulated by the Courtroom of Justice. Nevertheless, it is unlucky that a lot more details were not delivered. This would no doubt have prevented the Court docket from ending with as well many basic feedback. It appears to be to me that the compensation pointed out for failure to present data really should be comprehended with a degree of caution and that it may perhaps only be accessible if it leads to authentic financial reduction to the passenger. It is also astonishing that the phrase ‘right to care’ has been utilised to refer to the suitable to reimbursement and re-routing established out in Short article 8 of the Regulation, while this phrase is otherwise set out in Post 9 of the Regulation, which is the foundation for the appropriate to be offered refreshments and accommodation in case of need to have. Lastly, it would not be uninteresting to discover the explanations why, as in this situation, German-speaking courts are additional inclined to request preliminary rulings from the Courtroom of Justice than people of other Member States. As a matter of specifics, above the vast majority of references for preliminary rulings on the interpretation of the Regulation appear from both Germany or Austria.

Cyril-Igor Grigorieff, PhD is an attorney at the Brussels bar and lecturer on air legislation contracts at Paris Saclay University (IDEST). He is also the writer of numerous scientific books and content on air law.