Delay on a flight with a stopover (Connection): The company that sold the ticket must compensate the passenger
Good news for air passengers: the delay on a connecting flight operated by different companies, but having been the subject of a single reservation, gives right to compensation by the one who sold the tickets.
For example, passengers booking tickets with Wamos Air, whose flight includes a connection to Abu Dhabi (United Arab Emirates). The first plane, chartered by the European company, arrives on time in Abu Dhabi. But the second arrives more than eight hours late in Bangkok. It was not chartered by the Spanish company, but by Etihad Airways, national carrier of the United Arab Emirates, within the framework of a code-sharing agreement, partnership which allows a company to sell places on the planes d ‘another.
As Etihad Airways is not a European company, and the departure point for its flight is not located in the European Union, travelers cannot ask it to pay them the compensation provided, in the event of delay more than three hours (600 euros, in this case), by European regulation 261/2004, on the rights of air passengers. So they’re talking to Ceske Aeroline.
Wamos Air thus refused to pay, on the grounds that it was not it which operated the second flight: it was the “contractual” carrier, and not the “effective” carrier. However, Regulation 261/2004 provides that the carrier who pays compensation to late passengers is the actual carrier.
Passengers sue the Spanish company and win their case, at first instance and then on appeal, before the Czech courts, which consider that the situation of the second flight is similar to that of “subcontracting.
Wamos Air then files an appeal before the Constitutional Court, explaining that the German Federal Court, in a similar case, held that the responsibility of the contractual carrier could not be engaged, because it was not the actual carrier. The Spanish Constitutional Court refers the parties to the municipal court in Prague, to which it asks to examine the arguments of Wamos Air. This court has to stay the proceedings until the Court of Justice of the European Union has clarified it.
The Luxembourg Court, which gives its judgment (C-502/18) on July 11 (2019), first observes that, according to its own case law (Wegener against Royal Air Maroc, C 537/17), a flight with one or more connections having been the subject of a single reservation constitutes a “set”. The second segment of the journey therefore does not constitute a separate transport operation; it is part of a whole to which, in this case, European regulations apply, since its starting point is in a Member State.
The Court then asked whether the European carrier could be considered to be an effective carrier. It notes that under the terms of the regulations (Article 2b, definitions), that the latter is the one “who makes or intends to make a flight, within the framework of a contract concluded with a passenger, or on behalf of ” another person, legal or natural, who has concluded a contract with this passage.
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The Court recalls that, in its Wirth judgment against Thomson Airways (C-532/17), it held that the one who “performs” the flight is the one “who decides” to operate it, “including fix the route and, in so doing, create an air transport offer for the parties concerned ”. However, Wamos Air has made the decision to operate the entire trip; it fixed the route, before subcontracting the second part to Etihad Airways, by means of a code-sharing agreement. It therefore “actually carried out a flight, within the framework of the transport contract concluded with the passengers in question”.
Consequently, it must be qualified as an effective operator and it is liable for the compensation. The Court of Justice specifies that the company which carried out the first flight cannot be entrenched behind the bad execution of the subsequent flight “not to compensate the passenger, but that he can then turn against the carrier to whom the responsibility for the delay falls.
With this judgment, the Court of Justice extends the case law protecting the rights of air passengers, which it has constructed since the Sturgeon judgment of 19 November 2009, to those who have connections within the framework of a code-sharing agreement . If they are victims of delay in the arrival of a connecting flight operated by several companies, but having been the subject of a single reservation, they can contact the one who sold them the tickets, to be compensated.