Recent CJEU decisions on the consequences of a travel agency´s actions for air carriers

In two recent decisions, the Court of Justice of the European Union (CJEU) dealt with the consequences an air carrier faces for certain actions taken by travel agencies in context with Regulation 261/2004.

In case C-307/21, the passengers booked flights from Düsseldorf to Tangier via the travel agent Kiwi.com. The air carrier was provided with an e-mail address, which was most likely automatically generated by Kiwi.com and to which the passengers had no access. In the following, the air carrier sent an e-mail to this e-mail address in order to inform the passengers about the cancellation of their flight. Since this e-mail has been sent 14 days prior to the date of the scheduled flight, it would have complied with Article 5 (1) (c) (i) of Regulation 261/2004, resulting in the passengers not being entitled to receive a compensation within the meaning of Article 7 of Regulation 261/2004. However, Kiwi.com did not forward this e-mail to the passengers.

The CJEU decided on 27 September 2022 that the air carrier is obliged to pay a compensation to the passengers if the travel agency didn´t forward the air carrier´s e-mail in due time even if the air carrier was not aware of the fact that the e-mail address it has been provided with could only be used to contact the travel agency and not the passengers directly.

In case C‑436/21, a passenger booked the following itinerary: Stuttgart-Zurich-Philadelphia-Kansas City. The flight from Stuttgart to Zurich was operated by Swiss International Air Lines AG, while the other two flights were operated by American Airlines. This itinerary was booked via a travel agency in the form of a single electronic ticket with a single user price for the entire journey and the number of this ticket was displayed on the boarding passes relating to the flights. While the previous flights were on time, the flight from Philadelphia to Kansas City was delayed by more than four hours.

During the proceedings initiated in Germany against American Airlines, the involved German courts stated that Regulation 261/2004 does not apply, since American Airlines did not operate a flight departing from the territory of a member state of the EU. According to the German courts, there was nothing to indicate that American Airlines had undertaken to transport the passenger from Stuttgart to Kansas City, or that it had assumed responsibility for that transportation under a code sharing agreement. Subsequently, the case was brought before the German Supreme Court and the CJEU.

In its ruling rendered on 6 October 2022, the CJEU stated that – in the interest of the high level of protection for passengers – the concepts of “connecting flights” and “reservations” must be interpreted broadly, which lead to the CJEU´s decision that there has been a connecting flight even though the operating air carriers did not have a specific legal relationship. Therefore, the place of departure (Stuttgart, Germany) is of relevance, Regulation 261/2004 is applicable, and the passenger may be entitled to a compensation payment for the delay of his last flight leg.