Another judgment issued today also elaborates further on the provisions of Regulation No 261/2004 - in the case Niki Luftfahrt (C-530/19). Here, the question was raised by an Austrian court as to the interpretation of Article 9(1), which provides passengers with the right to care from the air carriers when there are hindrances to the scheduled flight. This right to care includes an obligation for air carriers to offer passengers free of charge hotel accommodation, when an overnight stay or a stay additional to the one intended by the passenger becomes necessary.
The passenger's flight from Mallorca to Austria was cancelled and the passenger was rebooked for the following day. The air carrier offered accommodation free of charge to the passenger in a local hotel. The issue arose as to the quality of this accommodation. The passenger used a wheelchair, the front wheels of which got caught in a pathway of the accommodation, resulting in the passenger falling and becoming seriously injured. The passenger raised a claim for damages from the operating air carrier for the negligent behaviour of the hotel employees.
The national courts were in disagreement whether the air carrier should bear responsibility for this consequential damage on the basis of Article 12 Regulation No 261/2004; whether for example the facts could classify this situation as a poor performance of obligations from Article 9(1), which could be seen as non-performance of this obligation (para 16). Overall, the national courts wanted to know how far the obligations of the air carrier stretch under this provision - only to the selection of the accommodation and offering it to passengers, or do they also cover performance of this service (which could make the air carrier liable for the conduct of the hotel employees) (para 17).
The Court's judgment essentially limits the liability of the air carriers to selecting the hotel accommodation and offering it to passengers. The air carrier does not have any responsibility to 'take care of the accommodation arrangements as such' (para 31). This is justified by the CJEU by the wording of Article 9(1)(b), which aims at taking away the burden from stranded passengers of finding accommodation and paying for it (para 24). This signifies, in fact, that the airline presents an option to passengers, but it will be the passengers who are contractual partners of the hotel (to that extent: para 28). Still, the CJEU highlights the air carriers obligations towards passengers with reduced mobility following from Article 9(3) and Recital 13 Regulation 261/2004. The air carrier should check whether the offered accommodation is capable of meeting reasonable expectations of passengers with reduced mobility and, where appropriate, notify the hotel of such needs of the passengers (para 29). Consistently, the CJEU further rejects the premise of the liability of air carriers for the damage that passengers experience in the accommodation due to the fault of the hotel employees (para 40). One interesting observation made is attention given to reiterate the rule that Regulation No 261/2004 does not allow for claims for individual compensation/damages, but only provides for standardised and immediate compensatory measures (paras 36-39).
Paragraph 29 of the judgment is the most relevant for consumer protection, as it does emphasise the need for the airlines to pay at least some attention to the quality of hotel accommodation they are offering to more vulnerable consumers. However, even if the airlines failed in performance of this obligation, paragraphs 36-39 clarify that passengers would not be able to claim full damages for the harm that they have suffered as a result.
