Using an online travel agency, the claimant booked a return flight from Amsterdam to Surinam, operated by the defendant air carrier. Over three weeks before the scheduled departure of the outbound flight, the air carrier informed the travel agency that that flight had been cancelled. However, the claimant received an e-mail from the travel agency informing him of that only ten days before that scheduled departure. The claimant’s compensation claim against the air carrier was rejected on the ground that the information on the change to the date of departure had been communicated to the travel agent in good time. The travel agency then informed the claimant that it refused to accept any liability on the grounds that, first, its area of responsibility extended only to the conclusion of contracts between passengers and air carriers, that it was therefore not responsible for changes to flight schedules made by an air carrier, and that the responsibility for informing passengers in such situations fell to the air carrier, to whom the passenger’s e-mail address had been sent in the booking file. The claimant again sought payment from the air carrier of the flat-rate sum of €600 specified in article 7(1)(c) of Parliament and Council Regulation (EC) No 261/2004. That claim was also rejected and the claimant subsequently brought proceedings before the referring Netherlands court seeking a provisionally enforceable judgment against the air carrier for payment of that sum. The air carrier disputed that claim, contending that the claimant had entered into a travel contract with a travel agent; and that it was common practice for air carriers to communicate information on flights to travel agents which had entered into the travel and carriage contract on behalf of passengers, and that those agents were required to forward that information on to passengers. The referring court, which took the view that Regulation No 261/2004 did not specify the conditions in accordance with which the air carrier was required to inform passengers of flight cancellations in the case where the contract was entered into via a travel agent or website, referred to the Court of Justice of the European Union for a preliminary ruling, a question on the interpretation of article 5(1)(c) of Regulation No 261/2004 which provided that, in the case of cancellation of a flight, the passengers concerned had a right to receive compensation from the operating air carrier in accordance with article 7 of that Regulation, unless they were informed of the cancellation of the flight at least two weeks before the scheduled time of departure.
On the reference—
Held, in the present case, it followed from the clear wording of articles 5(1)(c), 5(4) and 7 of Regulation No 261/2004 that, since the operating air carrier was not able to prove that the passenger concerned was informed of the cancellation of his flight more than two weeks before the scheduled time of departure, that air carrier had to pay the compensation specified in those provisions. That interpretation applied not only when the contract for carriage had been entered into directly between the passenger concerned and the air carrier, but also when that contract had been entered into via a third party such as, as in the instant case, an online travel agency. The operating air carrier which performed or intended to perform a flight was alone liable to compensate passengers for failure to fulfil the obligations under that Regulation including, in particular, the obligation to inform set out in article 5(1)(c) thereof. None the less, the discharge of obligations by the operating air carrier pursuant to Regulation No 261/2004 was without prejudice to its rights to seek compensation, under the applicable national law, from any person who caused the air carrier to fail to fulfil its obligations, including third parties. Accordingly, the operating air carrier was required to pay the compensation specified in articles 5(1)(c) and 7 of Regulation No 261/2004 in the case where a flight was cancelled and that information was not communicated to the passenger at least two weeks before the scheduled time of departure, including in the case where that air carrier, at least two weeks before that time, had communicated that information to the travel agent via whom the contract for carriage had been entered into with the passenger concerned and the passenger had not been informed of that cancellation by that agent within that period (judgment paras 25–27, 29, 31, operative part).
AJF Gonesh for the air carrier.
D Colas, E de Moustier and M‑L Kitamura, agents, for the French Government.
G Eberhard, agent, for the Austrian Government.
B Majczyna, agent, for the Polish Government.
N Yerrell and F Wilman, agents, for the European Commission.