1.

This request for a preliminary ruling concerns the interpretation of a number of provisions of Regulation (EC) No 261/2004 on compensation for air passengers. ( 2 )

2.

The request has been made in proceedings between Airhelp Ltd (Hong Kong), as successor in law to a passenger, and Austrian Airlines AG (Austria), concerning a claim for compensation for a cancelled flight on the ground that the re-routing flight offered by that airline did not allow the passenger concerned to reach his final destination within two hours of the scheduled arrival time of the cancelled flight.

3.

The case in the main proceedings provides the Court with an opportunity to rule on the applicability of Regulation No 261/2004 to a flight departing from and having its final destination in a third country, with a transfer in a Member State. The Court will have to determine whether the compensation provided for by that regulation for two flights departing from or arriving in a Member State, under two separate bookings, extends to the air route as a whole where those two flights are booked under a single booking.

4.

The Court is also invited to clarify the concept of ‘actual arrival time’, as regards an operating air carrier’s obligations in the context of an offer of re-routing, and to determine whether that carrier is responsible for the re-routing flight operated by another air carrier, with the result that any delay affecting that flight should be attributable to the first carrier.

5.

Following my analysis, I shall propose that the Court answer those questions to the effect that Regulation No 261/2004 is applicable to a situation in which two flights which have been booked under a single booking are covered separately by that regulation, and that the operating air carrier which concluded the contract of carriage with the passenger can be exempted from its obligation to pay compensation only if it has offered that passenger re-routing, allowing him or her actually to arrive at his or her final destination within two hours of the scheduled arrival time of the cancelled flight.

6.

Recitals 1, 2, 6, 12 and 13 of Regulation No 261/2004 state that:

…

…

7.

Article 2 of that regulation, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation:

…

…

…’

8.

Article 3 of that regulation, entitled ‘Scope’, provides:

‘1.   This Regulation shall apply:

…

5.   This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.’

9.

Article 5(1)(c)(iii) of that regulation, that article being entitled ‘Cancellation’, provides:

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

…

10.

Article 7 of Regulation No 261/2004, entitled ‘Right to compensation’, provides in paragraphs 1 and 2 thereof:

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

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.

2.   When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked

…

(c) by four hours, in respect of all flights not falling under (a) or (b),

the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.’

11.

Under the heading ‘Right to reimbursement or re-routing’, Article 8 of that regulation provides in paragraph 1:

‘Where reference is made to this Article, passengers shall be offered the choice between:

…

12.

Article 13 of that regulation, entitled ‘Right of redress’, provides:

‘In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. …’

13.

A passenger had obtained a confirmed booking for an air route to be operated by the Community air carrier Austrian Airlines between Chişinău (Moldova) and Bangkok (Thailand), which comprised two successive flights scheduled for 29 May 2019: the first flight was from Chişinău (Moldova) to Vienna (Austria) and the second flight, scheduled to depart several hours after the arrival of the first flight, was from Vienna (Austria) to Bangkok (Thailand) and scheduled to arrive at its destination on 30 May 2019 at 14.20.

14.

The flight from Chişinău to Vienna was cancelled less than seven days before the scheduled departure. Austrian Airlines changed the passenger’s booking by transferring him onto a re-routing flight from Istanbul (Türkiye) to Bangkok (Thailand), also scheduled to arrive on 30 May 2019, but at 15.00. ( 3 ) The re-routing flight was therefore supposed to arrive only 40 minutes later than the scheduled arrival time of the flight originally booked. However, that re-routing flight reached Bangkok at 16.47, that is to say 2 hours and 27 minutes later than the scheduled arrival time of the flight originally booked.

15.

Airhelp, to whom the passenger concerned assigned his right to compensation under Article 7 of Regulation No 261/2004, claims compensation in the amount of EUR 300, arguing that Austrian Airlines failed to offer the passenger re-routing which would allow him to reach his final destination, Bangkok, within two hours of his originally scheduled arrival. That amount takes account of the fact that Austrian Airlines is entitled, according to Airhelp, to claim a reduction in the amount of compensation in accordance with Article 7(2)(c) of that regulation, since the passenger arrived at his final destination within four hours of the time originally scheduled. Austrian Airlines, however, contests that claim, arguing that the passenger is not entitled to that compensation, since the scheduled arrival time of the re-routing flight was 15.00 and, therefore, that it arrived only 40 minutes later than the scheduled arrival time of the flight originally booked, namely 14.20.

16.

The court of first instance, the Bezirksgericht Schwechat (District Court, Schwechat, Austria), upheld the claim, noting that it was clear from the wording of Regulation No 261/2004 that, in calculating the delay of a flight, the scheduled arrival time of the original flight should be compared with the time at which the re-routing flight actually reached the final destination. That court concluded that an air carrier is exempt from payment of compensation only if the passenger actually arrives at his or her final destination using the re-routing flight no more than two hours after the originally scheduled arrival time.

17.

That court noted that, in the present case, the passenger was scheduled to land in Bangkok at 14.20 with the originally scheduled flight, but that he actually reached his final destination with the re-routing flight only at 15.47, that is 2 hours and 27 minutes later. It concluded that the claim for compensation at a reduced rate of 50% was well founded, but did not address the question whether the facts of the case fell within the provisions of Regulation No 261/2004.

18.

Austrian Airlines lodged an appeal against the decision at first instance before the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria).

19.

That court observes that it appears from the case-law of the Court that a stopover in the territory of the European Union does not have the effect of rendering Regulation No 261/2004 applicable to flights which have been the subject of a single booking and which do not have their place of initial departure or their place of final destination in the territory of the European Union. If that is the case, it considers that that regulation would not apply to the flight originally booked from Chişinău (Moldova) to Bangkok (Thailand) via Vienna (Austria), since the place of initial departure and the place of final destination are located in third countries. It wonders, however, whether such a result is consistent with the objective of that regulation of ensuring a high level of protection for passengers, pointing out that if the two flights had not been booked under a single booking, they would each fall within the scope of that regulation, in accordance with the wording of Article 3(1) thereof.

20.

That court then notes that, if Regulation No 261/2004 is applicable, the question arises whether Article 5(1)(c)(iii) thereof must be interpreted as meaning that the time limits which it lays down should be based on the scheduled departure and arrival times of the re-routing flight or on its actual departure and arrival times. That court points out that, in the dispute in the main proceedings, the right to compensation depends on the answer to the question whether the scheduled time of arrival at the final destination should be compared with the scheduled time of arrival of the re-routing flight (a situation which would not confer entitlement to compensation, since the delay would be less than two hours), or rather with the actual arrival time of the re-routing flight (a situation which would confer entitlement to compensation, since the delay would be more than two hours).

21.

The referring court notes that the wording of Article 5(1)(c)(iii) of Regulation No 261/2004 does not provide any answer. It asks whether the wording ‘they … are offered’ in that provision should be interpreted as meaning that the air carrier is merely required to offer the passenger re-routing, without being obliged to ensure that the flight will arrive at the scheduled time or within a certain period from that time, so that any delay in the re-routing flight operated by another carrier should not be attributable to the first carrier.

22.

In those circumstances, the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

If Question 1 is answered in the affirmative:

23.

The reference for a preliminary ruling was registered at the Registry of the Court on 23 September 2020. Written observations were submitted by the parties to the main proceedings, the Austrian and Danish Governments and the European Commission. No oral hearing was held but the parties and interested parties, with the exception of the Danish Government, replied in writing to the Court’s questions of 18 May 2021.

24.

By its first question, the referring court seeks to ascertain whether Regulation No 261/2004 applies to an air route operated by a Community air carrier and consisting of two flights which have been booked under a single booking, where the places of initial departure and final destination are located in a third country, in the present case Moldova and Thailand, and the place of arrival of the first flight and the place of departure of the second flight are located in the territory of a Member State.

25.

I note, first of all, that the first flight, Chişinău–Vienna, operated by a Community air carrier and departing from a third country (Moldova) to a Member State (Austria), falls within the scope of Regulation No 261/2004 pursuant to Article 3(1)(b) ( 4 ) thereof, and the second flight, Vienna–Bangkok, from a Member State (Austria) to a third country (Thailand), also falls within the scope of that regulation pursuant to Article 3(1)(a) thereof.

26.

Although those two flights are each, considered separately, covered by Regulation No 261/2004, does the fact that they were booked under a single booking with places of initial departure and final destination in third countries have the effect of rendering that regulation inapplicable?

27.

While Austrian Airlines and the Danish Government take the view that this question should be answered in the affirmative, on the ground that that regulation does not apply to an air route between a third country and another third country, Airhelp, the Austrian Government and the Commission take the opposite view.

28.

In the following analysis, I shall explain why I agree with the latter parties.

29.

First, it does not follow from the wording of Article 3(1)(a) and (b) of Regulation No 261/2004, read together with recital 6 thereof, that the territorial scope of the regulation should depend on the places of initial departure and final destination in the case of an air route consisting of two or more flights.

30.

Article 3(1) of Regulation No 261/2004 specifies neither that the phrase ‘departing from an airport located in the territory of a Member State’, in point (a) thereof, refers to the passenger’s place of initial departure nor that the phrase ‘to an airport situated in the territory of a Member State’, in point (b) thereof, refers to the passenger’s place of final destination. ( 5 )

31.

Moreover, the applicability of Regulation No 261/2004 does not seem to depend on the concepts of ‘initial departure’ and ‘final destination’. By contrast, it is linked to the existence of a flight departing from an airport located in the territory of a Member State or departing from an airport located in a third country and flying to an airport located in the territory of a Member State, if the air carrier operating the flight concerned is a Community carrier. ( 6 ) Therefore, the concept of ‘flight’ as interpreted by the Court, ( 7 ) namely an air transport operation forming a ‘unit’ and performed by an air carrier which fixes its itinerary, ( 8 ) is relevant. It follows, in my view, in particular from the term ‘unit’ that a flight may be regarded as an air transport operation between two airports. ( 9 )

32.

Where the place of destination of a first flight is located in the territory of a Member State and is the same as the place of departure of the second flight, it follows, in my view, from the actual wording of Article 3(1) of Regulation No 261/2004 that that place may be taken into account for the purposes of the applicability of that regulation.

33.

Secondly, like the Austrian Government and the Commission, I take the view that equal treatment considerations support the application of Regulation No 261/2004 to an air route, such as that in the main proceedings, comprising two flights, irrespective of the method of reservation used.

34.

I would point out in that regard that the scope of Regulation No 261/2004 covers flights which have a link with the territory of the European Union, that is to say which have either as their point of departure (Article 3(1)(a)), or as their destination (Article 3(1)(b)) an airport situated in the territory of a Member State. Where two flights each have such a link, whether or not those flights were purchased together or separately should not sever that link and lead to a difference in treatment between the passengers on those flights.

35.

I shall illustrate that point by using the example of two passengers. Passenger A, like the passenger in the main proceedings, has booked two flights – the first flight from Chişinău (Moldova) to Vienna (Austria) and the second flight from Vienna (Austria) to Bangkok (Thailand) – under a single booking. Passenger B, who has the same itinerary as Passenger A, booked the same two flights under two separate reservations. As a passenger on a flight, first, from a third country to a Member State operated by a Community carrier (Article 3(1)(b) of Regulation No 261/2004) and, secondly, from a Member State to a third country (Article 3(1)(a) of that regulation), Passenger B clearly enjoys the protection conferred by that regulation. Should Passenger A be denied that protection solely on the ground that he or she has made a single booking?

36.

Although Passengers A and B are in an objectively identical situation as passengers on the same flights, refusing to apply Regulation No 261/2004 to Passenger A would have the consequence that those passengers would be treated differently in that they would not enjoy the same protection as regards the harmful consequences which flight delays may cause. ( 10 )

37.

According to the settled case-law of the Court, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 11 )

38.

Accordingly, passengers who experience flight delays, such as those in the main proceedings, must, in my view, be regarded as being in a comparable situation and should not therefore be treated differently solely on the ground that a different method of reservation was used.

39.

Thirdly, the objective pursued by the legislature supports that analysis.

40.

I would recall that Regulation No 261/2004 aims at ensuring a high level of protection for passengers.

41.

Since each flight is covered by that regulation and, considered separately, confers entitlement to compensation, it would, in my view, be contrary to that objective of protection for passengers to conclude that passengers do not enjoy that protection when flights have been booked under a single booking.

42.

That interpretation is not contradicted by the Court’s recent case-law on single bookings. ( 12 )

43.

That case-law relates to connecting flights where, contrary to the facts in the main proceedings, one of the flights, considered separately, does not fall within the scope of Regulation No 261/2004.

44.

This is apparent, first of all, from the Wegener judgment. The case which gave rise to that judgment concerned a flight under a single booking from Berlin (Germany), and therefore from a Member State, to Agadir (Morocco), located in a third country, with a transfer in Casablanca (Morocco), located in the same third country. The passenger had missed the second flight from Casablanca to Agadir and his arrival at his final destination was delayed by more than four hours on account of the late take-off of the first flight, departing from Germany. The second flight, from and to an airport in a third country, was not covered by Regulation No 261/2004.

45.

The Court held, on the basis of the Folkerts judgment, ( 13 ) that the delay must be assessed for the purposes of compensation in relation to the time of arrival at the final destination, that is to say, the time of arrival of the last flight. ( 14 ) The Court held that it follows from the term ‘last flight’ that the concept of ‘connecting flight’ must be understood as referring to two or more flights constituting a whole for the purposes of the right to compensation for passengers provided for in Regulation No 261/2004. ( 15 ) In the context of carriage under a single booking such as that which gave rise to the Wegener judgment, the Court held that it must be regarded, taken as a whole, as a connecting flight which comes within the scope of Article 3(1)(a) of that regulation. ( 16 )

46.

I would point out that taking into consideration as a whole the flights departing from an airport in one Member State, in that case Germany, and having a final destination at an airport in a third country, in that case Morocco, made it possible to conclude that the passenger was entitled to compensation, whilst, considered separately, the second flight, from and to an airport located in that third country, did not confer entitlement to compensation. That solution clearly helped to ensure the high level of protection provided for by the legislature.

47.

A similar solution was subsequently adopted in the České aerolinie judgment and in the KLM order.

48.

The case giving rise to the České aerolinie judgment concerned a flight departing from a Member State to a final destination in a third country and having a transfer in a third country. ( 17 ) A single booking had been made with a Community air carrier, which had operated the first flight. The Court ruled that the passenger could bring a claim for compensation against that carrier even though that carrier had not operated the second flight which had caused the delay and that that flight, considered separately, did not confer entitlement to compensation since it was between two third countries.

49.

Finally, the case which gave rise to the KLM order concerned a flight from a third country to the European Union with a transfer in the Union. ( 18 ) A single booking had been made with a Community carrier. Although the first flight, from the third country to the European Union, was operated by a non-Community carrier and therefore did not fall within the scope of Article 3(1)(b) of Regulation No 261/2004, and the delay at the final destination had been caused by the air carrier of that first flight, the Court recalled that such connecting flights were to be regarded as constituting a whole to which that regulation applied. ( 19 ) It followed that a passenger who suffers a delay of three hours or more on arrival at his or her final destination could bring an action for compensation under that regulation against the Community air carrier. ( 20 )

50.

The Court observed that that approach was justified by the aim of ensuring a high level of protection for passengers, with a view to guaranteeing that the passengers transported are compensated by the operating air carrier which had made the contract of carriage with them, without needing to take into account the arrangements made by that carrier regarding the performance of other flights making up the connecting flights which that carrier offered. ( 21 )

51.

Therefore, I take the view, like the Commission, that that case-law contributes to the achievement of the objective set out in Regulation No 261/2004 of ensuring a high level of protection by interpreting that regulation as applying also where the journey by air is composed of connecting flights, to one of which the regulation would not apply if that flight were considered in isolation.

52.

However, I agree with the Commission that it is not appropriate to apply that case-law by analogy to an air route comprising two flights such as that at issue in the main proceedings. I am of the view that application of that case-law in such circumstances would be consistent neither with the wording nor with the objective of Regulation No 261/2004, in so far as that regulation is already applicable to the two flights considered separately and application of that case-law would result in an outcome contrary to that pursued by the legislature. Consideration, in such cases, of the flights as a whole, taking into account the places of initial departure and final destination, both of which are situated in a third country, would restrict the protection conferred by that regulation, by depriving the passenger of any protection under it even though those flights operated by a Community carrier have a point of departure or a point of arrival in the European Union and therefore fall within the scope of Regulation No 261/2004.

53.

In other words, I consider that the case-law analysed above regarding single bookings cannot remove from the scope of Regulation No 261/2004 a situation which is clearly covered by it. ( 22 )

54.

Not only would such application by analogy be contrary to the wording of Article 3(1) of Regulation No 261/2004, it would also have results which, to say the least, would be paradoxical.

55.

It would mean that the combination of a flight covered by that regulation and a flight not covered by it, as in the cases giving rise to the Wegener and České aerolinie judgments and the KLM order, would allow the passenger to be protected for both flights together, whereas the combination of two flights covered separately by that regulation, as in the case in the main proceedings, would result in the passenger being completely deprived of protection.

56.

In practice, that would mean that passengers on a flight to which Regulation No 261/2004 does not apply, such as the passengers on the Agadir‑Casablanca flight in the case giving rise to the Wegener judgment or those on the Abu Dhabi‑Bangkok flight in the case giving rise to the České aerolinie judgment, would enjoy better protection against the consequences of cancellation or delay than that enjoyed by passengers on two flights which each fall within the scope of that regulation, such as passengers on the Chişinău‑Vienna and Vienna‑Bangkok flights, in a case such as that in the main proceedings.

57.

I would add that it does not follow from the Wegener and České aerolinie judgments and the KLM order that directly connecting flights should in all cases be regarded as a single flight for the purposes of compensation under Regulation No 261/2004, but that this may be so in the context of flight configurations such as those at issue in the cases giving rise to those judgments.

58.

Lastly, I consider that the Emirates Airlines judgment, ( 23 ) which concerned an outward and return journey, supports the interpretation that two flights, as in the case in the main proceedings, must be examined separately even though they were booked under a single booking. The Court held that outward and return flights purchased as part of a single booking should be considered independently, ( 24 ) so that such an outward and return journey did not fall within the scope of Article 3(1)(a) of Regulation No 261/2004. The Court’s interpretation in that judgment is based, inter alia, on the need not to undermine the effectiveness of that provision and not to reduce the protection to be given to passengers under the regulation. ( 25 )

59.

For all the foregoing reasons, I consider that Article 3(1) of Regulation No 261/2004 must be interpreted as meaning that that regulation is applicable to an air route operated by a Community carrier and consisting of two flights booked under a single booking, where the place of initial departure and the place of final destination are located in a third country, but the place of arrival of the first flight and the place of departure of the second flight is located in the territory of a Member State, with the result that each flight considered separately falls within the scope of that provision.

60.

In the light of the answer which I propose to give to the first question referred, I consider that there is no need to give my opinion on the applicability to the situation in the main proceedings of the EU-Moldova Agreement on the Establishment of a Common Aviation Area. ( 26 )

61.

By its second question, the referring court seeks to ascertain whether, under Article 5(1)(c)(iii) of Regulation No 261/2004, a passenger is entitled to compensation where the re-routing flight which he or she was offered ought indeed to have reached its final destination less than two hours after the scheduled time of arrival of the cancelled flight, but in fact did not reach its final destination within that time.

62.

In essence, this question concerns whether an operating air carrier which has offered re-routing that initially fulfils the time requirements laid down in that provision is also liable for the delay of the re-routing flight operated by another operating air carrier, in so far as that flight fails to fulfil those requirements.

63.

Under Article 5(1)(c) of Regulation No 261/2004, in the event of the cancellation of a flight, passengers have, as a matter of principle, the right to compensation by the operating air carrier as provided for in Article 7 thereof.

64.

The operating air carrier can be exempted from that obligation to pay compensation only in the few exceptional cases provided for in Article 5(1)(c)(i) to (iii) of Regulation No 261/2004. ( 27 )

65.

Where, under Article 5(1)(c)(iii), the passenger has been informed of the cancellation of the flight less than seven days before the scheduled time of departure, he or she is entitled to compensation unless two cumulative conditions are fulfilled. First, the passenger must be offered re-routing, allowing him or her to depart no more than one hour before the scheduled time of departure. Secondly, that re-routing must allow the passenger to reach his or her final destination less than two hours after the scheduled time of arrival. ( 28 )

66.

The wording of Article 5(1)(c)(iii) of Regulation No 261/2004 and of Article 7(2) thereof, referring to ‘arrival time’, does not provide a clear answer as to whether it is the scheduled arrival time of the re-routing flight or its actual arrival time which must be taken into account for the purpose of determining whether that condition is fulfilled.

67.

Nevertheless, the Court has stated that it is only the delay beyond the scheduled time of arrival at the final destination which is relevant for the purposes of compensation for delay under Article 7 of Regulation No 261/2004. ( 29 )

68.

More specifically, the Court has held that Articles 2, 5 and 7 of Regulation No 261/2004 must be interpreted as meaning that the concept of ‘arrival time’, which is used to determine the length of the delay to which passengers on a flight have been subject, refers to the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft, ( 30 ) and therefore identifies the moment at which the aircraft actually arrived at the destination airport.

69.

I note, moreover, that the Court granted the passenger a right to compensation under Article 5(1)(c)(iii) of Regulation No 261/2004 by taking into account the time of landing of the aircraft on the re-routing flight, that is to say its actual time of arrival at the final destination. ( 31 )

70.

I conclude from that that, where a re-routing flight has actually reached its final destination more than two hours after the scheduled arrival time of the flight originally booked, such as that in the present case, which was delayed by 2 hours and 27 minutes, the second condition laid down in Article 5(1)(c)(iii) of Regulation No 261/2004 is not in fact fulfilled, with the result that the passenger concerned should be entitled to compensation under Article 7 thereof.

71.

First, like the Commission, I consider that that interpretation is the only one which is consistent with the objective set out in Regulation No 261/2004 of repairing the damage ultimately caused to the passenger by the delay, which consists in a loss of time which is irreversible. ( 32 )

72.

Since, in the context of a connecting flight, the inconvenience represented by that loss of time materialises only on arrival at the final destination, ( 33 ) the delay of the re-routing flight can be assessed only in the light of its actual arrival time.

73.

Secondly, such an interpretation cannot be called into question by the fact that the operating air carrier offered re-routing which, on paper, fulfilled the time requirements laid down for such re-routing.

74.

It is true that the wording of Article 5(1)(c)(iii) of Regulation No 261/2004, according to which the operating air carrier must offer ‘re-routing, allowing them … to reach’ their final destination, could mean that once an offer of re-routing fulfilling the conditions laid down therein has been accepted by the passenger concerned, it is not the responsibility of that carrier to ensure that it is properly carried out.

75.

However, with the objective of reducing the serious trouble and inconvenience ( 34 ) caused by the cancellation of a flight, the provisions conferring rights on air passengers must be interpreted broadly. ( 35 )

76.

In that regard, it follows, first of all, from Article 8(1)(b) of Regulation No 261/2004, read together with recitals 12 and 13 thereof, that the operating air carrier may be exempted from its obligation to pay compensation only if it has deployed all the resources at its disposal to ensure reasonable, satisfactory and timely re-routing. ( 36 )

77.

Moreover, the obligation to pay compensation has incentive effects on the operating air carrier, which means that the passenger’s right to re-routing must be effectively implemented or it may be undermined. ( 37 )

78.

It follows, in my view, that the operating air carrier which is responsible for offering re-routing to the passenger must ensure that it is properly carried out, so that that passenger actually reaches his or her final destination in circumstances, in terms of scheduling, comparable to those of the cancelled flight.

79.

Next, that effective implementation of re-routing follows, in my view, implicitly from the contractual nature of the link binding the passenger to the operating air carrier, in the light of the definition of the latter concept in Article 2(b) of Regulation No 261/2004. Indeed, the conclusion of a contract between those parties is what guarantees to passengers that they will get to their final destination at the scheduled time. ( 38 )

80.

Accordingly, pursuant to the second sentence of Article 3(5) of Regulation No 261/2004, where an operating air carrier which has no contract with the passenger in question performs obligations under that regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger. This means, in the present case, that the operating air carrier which carried out the re-routing is to be regarded as doing so on behalf of Austrian Airlines, which entrusted implementation of that re-routing to it.

81.

That solution thus prevents the air carrier with which the passenger concluded the contract of carriage from taking refuge behind the air carrier responsible for poor performance of the re-routing flight. ( 39 )

82.

Finally, it does not appear unreasonable for the obligations laid down in Regulation No 261/2004 to be borne by the air carriers with which the passengers concerned have a contract of carriage, since the latter entitles them to a flight that should be neither cancelled nor delayed, ( 40 ) without prejudice to the right of those carriers to obtain reductions in compensation or to ( 41 ) seek redress from any person who caused the delay. ( 42 )

83.

In the light of the foregoing considerations, I am of the view that the re-routing offered by the air carrier which concluded the contract of carriage with the passenger must be effectively implemented by that carrier, with the result that a passenger is entitled to compensation under Article 7(1) of Regulation No 261/2004 where the actual arrival time of the re-routing flight at its final destination is more than two hours later than the scheduled arrival time of the flight originally booked.

84.

In the light of the foregoing analysis, I propose that the Court answer the questions referred by the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows: