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Laudamotion GmbH, by W. Nassall, Rechtsanwalt,

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

1

This request for a preliminary ruling concerns the interpretation of Articles 3 and 5 to 7 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 WY, an air passenger, and Laudamotion GmbH and Ryanair DAC concerning the refusal of those two carriers to compensate that passenger for the delayed arrival of a flight for which he had a confirmed reservation.

3

According to recital 2 of Regulation No 261/2004:

‘Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.’

4

Article 3 of that regulation, entitled ‘Scope’, states, in paragraphs 1 and 2:

‘1.   This Regulation shall apply:

…

2.   Paragraph 1 shall apply on the condition that passengers:

5

Article 5 of that regulation, entitled ‘Cancellation’, provides, in paragraph 1:

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

…

6

Article 6 of that regulation, entitled ‘Delay’, is worded as follows in paragraph 1:

‘When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

7

Article 7 of Regulation No 261/2004, entitled ‘Right to compensation’, provides in paragraph 1:

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

…’

8

WY booked a return flight with Ryanair from Düsseldorf (Germany) to Palma de Mallorca (Spain), scheduled for 31 October 2019. After being informed by Laudamotion, which was the operating air carrier, that the departure of the outbound flight (‘the original flight’) would be delayed by six hours, that passenger booked by himself an alternative flight in order to be able to attend a business appointment which was to take place in Palma de Mallorca. Owing to that alternative flight, he ultimately arrived at his destination with a delay of less than three hours after the scheduled arrival time of the original flight. The passenger in question, who maintains that he presented himself on time for check-in for the original flight, inter alia claimed compensation of EUR 250 from Laudamotion under Article 5(1)(c) and Article 7(1) of Regulation No 261/2004. He also requested information from Ryanair on the amount of unused charges and payment of that amount.

9

WY’s claim against Laudamotion was dismissed both at first instance and on appeal. The appeal court found that even though the original flight had arrived with a delay of more than three hours, Laudamotion was not obliged to pay the compensation claimed since WY had not taken that flight and had arrived at the final destination with a delay of less than three hours. In that regard, it was irrelevant that the alternative flight had been booked by the passenger himself. Accordingly, WY had not suffered any inconvenience by not taking the original flight. On the other hand, he was entitled, on the basis of German civil law, to reimbursement of the alternative flight which he had booked himself.

10

WY lodged an appeal on a point of law with the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court. That court considers that the outcome of the appeal depends on the interpretation of Article 3(2)(a), Article 5(1)(c) and Article 7(1) of Regulation No 261/2004.

11

The referring court observes that it is apparent from the case-law of the Court of Justice that the compensation referred to in those two latter provisions is granted to an air passenger who suffers a loss of time of three hours or more upon arrival at his or her final destination. Consequently, that compensation should not be paid to a passenger whose flight is likely to face a long delay and who, as a result, independently books an alternative flight that allows that person to arrive at the final destination with a delay of less than three hours after the originally scheduled arrival time of the first flight.

12

It may be inferred from the order of 24 October 2019, easyJet Airline (C‑756/18, EU:C:2019:902, paragraph 33 et seq.), that the right to compensation for the long delay of a flight is, as a matter of principle, granted only to passengers who have taken the flight concerned and have actually arrived at their final destination with a delay of at least three hours. The fact that, as in the present case, the air carrier failed in its duty to offer an alternative flight which would have enabled the passengers to avoid suffering the announced delay in the original flight is irrelevant in that regard.

13

The referring court observes that it indeed follows from the judgment of 11 June 2020, Transportes Aéreos Portugueses (C‑74/19, EU:C:2020:460, paragraph 61), that in the event of a long delay or the cancellation of a flight, an air carrier is required, inter alia, to offer the passenger a possible direct or indirect re-routing on a flight operated by itself or by another carrier and arriving with less delay than that of the next flight of the carrier concerned, unless the implementation of such re-routing constitutes an intolerable sacrifice for that air carrier in the light of the capacities of its undertaking at the relevant time. That being said, failure to fulfil that obligation cannot, by itself, give rise to a right to compensation within the meaning of Article 7(1) of Regulation No 261/2004. That provision does not enable compensation to be paid for any kind of inconvenience, but only in the event of a loss of time of at least three hours. The inconvenience suffered by the passenger at issue in the main proceedings therefore does not constitute a serious inconvenience for the purposes of that regulation, as is apparent from the judgment of 30 April 2020, Air Nostrum (C‑191/19, EU:C:2020:339, paragraph 32).

14

That court considers, however, that a different assessment may be possible in the light of Article 5(1)(c) of Regulation No 261/2004 which, where a flight is cancelled, provides for compensation to be paid to passengers if they are not offered a re-routing flight with a loss of time of less than three hours. If there is sufficient information, even before the time when the passenger must at the latest present himself or herself for check-in, to conclude that the flight will arrive at the final destination at least three hours later than the time originally scheduled, that passenger cannot be required, for the purposes of being compensated, to present himself or herself for check-in in due time or actually to make the journey. Furthermore, the time of arrival of that passenger at the final destination is also irrelevant for that purpose.

15

In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

16

As a preliminary point, it should be observed that, by its first question, the referring court raises the question of the interpretation of Articles 5 to 7 of Regulation No 261/2004. In that regard, while it is true that the origin of the dispute in the main proceedings is the delayed departure of an aircraft, its subject matter rests in the repercussions that that delay may have caused on arrival. Indeed, the applicant in the main proceedings claims compensation owing to the probable delay in the arrival of the flight at issue at the final destination, which would have prevented him from arriving on time for a business appointment, which was to take place in Palma de Mallorca. However, Article 6 of that regulation is concerned solely with the delay in a flight beyond its originally scheduled time of departure. It follows that the fixed compensation to which a passenger is entitled under Article 7 of that regulation, when his or her flight reaches the final destination three hours or more after the scheduled arrival time, is not dependent on the conditions laid down in Article 6 being met (judgment of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraphs 36 and 37).

17

In addition, it is apparent from the request for a preliminary ruling that the applicant in the main proceedings is able to claim reimbursement, on the basis of German law, of the costs of the alternative transport which he reserved himself, with the result that this question is concerned solely with the right of the applicant in the main proceedings to be granted fixed compensation under Article 5(1) and Article 7(1) of Regulation No 261/2004 for the long delay of a flight.

18

In those circumstances, it should be considered that, by its first question, the referring court asks, in essence, whether Article 5(1) and Article 7(1) of Regulation No 261/2004 must be interpreted as meaning that the right to compensation, within the meaning of those provisions, may be enjoyed by an air passenger who, on account of a risk of a long delay in arrival at the final destination of the flight on which he or she has a confirmed reservation, or even on account of sufficient evidence of such a delay, has himself or herself booked an alternative flight and has reached the final destination with a delay of less than three hours after the originally scheduled arrival time of the first flight.

19

As is apparent from settled case-law, 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 laid down in Article 7(1) of that regulation, as passengers whose flights are cancelled; second, they 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 (see, to that effect, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 60, 61 and 69, and 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).

20

Passengers of such flights, like those passengers whose original flights have been cancelled, suffer an irreversible loss of time and, hence, a comparable inconvenience. That inconvenience materialises, with regard to delayed flights, on arrival at the final destination, with the result that a delay must be assessed, for the purposes of the compensation provided for in Article 7(1) of Regulation No 261/2004, in relation to the scheduled arrival time at that destination (judgment of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraphs 32 and 33).

21

The crucial factor which has led the Court to treat a long delay in the arrival of a flight as equivalent to cancellation of a flight is that passengers on a flight affected by a long delay, like passengers whose flight is cancelled, suffer damage which occurs in the form of an irreversible loss of time, equal to or in excess of three hours, which can be redressed only by compensation (see, to that effect, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 52, 53 and 61; of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 54; and of 12 March 2020, Finnair, C‑832/18, EU:C:2020:204, paragraph 23). Accordingly, where a flight is cancelled or there is a long delay in the arrival of a flight at its final destination, the right to compensation provided for in Article 7(1) of Regulation No 261/2004 is intrinsically linked to the occurrence of that loss of time equal to or in excess of three hours.

22

It follows that an air passenger who did not take a flight for which he or she had a confirmed reservation and who, owing to an alternative flight which that person booked independently, arrived at the final destination with a delay of less than three hours after the arrival time originally scheduled by the air carrier has not suffered such a loss of time and thus cannot benefit from that right to compensation.

23

In that respect, it should be borne in mind that Regulation No 261/2004, in accordance with recital 2 thereof, seeks to remedy ‘serious trouble and inconvenience’ suffered by passengers when travelling by air. Although the fact that an air passenger has found an alternative flight by himself or herself may result in inconvenience for the passenger concerned, such inconvenience cannot, however, be regarded as ‘serious’, within the meaning of that regulation, where that passenger has reached his or her final destination with a delay of less than three hours after the originally scheduled time of arrival (see, by analogy, judgments of 30 April 2020, Air Nostrum, C‑191/19, EU:C:2020:339, paragraphs 30 to 33, and of 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraphs 42 and 43).

24

Having regard to the foregoing considerations, the answer to the first question is that Article 5(1) and Article 7(1) of Regulation No 261/2004 must be interpreted as meaning that the right to compensation, within the meaning of those provisions, cannot be enjoyed by an air passenger who, on account of a risk of a long delay in arrival at the final destination of the flight on which he or she has a confirmed reservation, or even on account of sufficient evidence of such a delay, has himself or herself booked an alternative flight and has reached the final destination with a delay of less than three hours after the originally scheduled arrival time of the first flight.

25

In the light of the answer given to the first question, there is no need to examine the second question. In fact, where the delay in the arrival of a flight at its final destination is less than three hours after the originally scheduled arrival time, passengers on that flight cannot obtain the compensation provided for in Article 7(1) of Regulation No 261/2004. It is therefore irrelevant in that case whether or not those passengers presented themselves for check-in in due time, as required by Article 3(2)(a) of that regulation.

26

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Third Chamber) hereby rules:

Article 5(1) and Article 7(1) 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 right to compensation, within the meaning of those provisions, cannot be enjoyed by an air passenger who, on account of a risk of a long delay in arrival at the final destination of the flight on which he or she has a confirmed reservation, or even on account of sufficient evidence of such a delay, has himself or herself booked an alternative flight and has reached the final destination with a delay of less than three hours after the originally scheduled arrival time of the first flight.