Wednesday, 4 July 2018

Who is an operating air carrier? - CJEU in Wirth and Others (C-532/17)

CJEU issued a judgment today in the case Wirth and Others (C-532/17), which concerned interpretation of the notion of the 'operating air carrier' from Regulation 261/2004. It is the operating air carrier that has obligations towards the passengers, pursuant this Regulation, thus it is crucial to have clarity on who qualifies as such. 

The complexity in the given case arose due to the flight reservations being made by passengers with an air carrier TUIFly, but the aircraft and crew of the pertinent flight belonging to another air carrier - Thomson Airways. TUIFly used the resources of Thomson Airways under a 'wet lease' agreement and stated on the booking confirmation to the passengers that the flight is being 'operated' by Thomson Airways. When passengers proceeded to claim compensation for a delayed flight from Thomson Airways it refused to pay out on the grounds of TUIFly bearing the operational responsibility for the performance of the flight.

The CJEU agrees with Thomson Airways. An operating air carrier is therefore that air carrier which decides to perform a particular flight, fixes its itinerary and concludes contracts of air carriage with passengers, either himself or on behalf of another company (in casu TUIFly). The conditions of performing a flight and concluding a contract with passengers are cumulative in art. 2b) of the Regulation (para 18). As Thomson Airways only leased its aircraft and crew, and had no input on the operational decision regarding the flight, it could not be considered an operating air carrier. This means that the information provided to the passengers, as to who the operating air carrier is, is not decisive.

This decision could be beneficial to passengers, as it would not allow air carriers based in the EU to escape their liability by concluding wet lease agreements with air carriers registered in third countries in case of flights departing from airports located outside the EU (as pursuant art. 3 of the Regulation its provisions apply only to Community air carriers in such cases). However, in order to increase legal certainty of passengers this judgment should be followed by enforcement authorities finding that providing incorrect information to passengers on who the operating air carrier is qualifies as a misleading commercial practice.

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