On 4 July 2018 the Court of Justice of the European Union held its judgment in case C-532/17,W. W. and o. v. Thomson Airways Ltd. The request for a preliminary ruling has been made in the context of proceedings in front of the Landgericht Hamburg(Regional Court, Hamburg, Germany) between four passengers and Thomson Airways,following the airline’s refusal to compensate them for a flight delayed beyond its scheduled time of arrival by more than three hours, in accordance with Regulation (EC) No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
The flight has been reserved with the air company TUIfly, which, in order to operate that flight, used the aircraft and crew of another air company, Thomson Airways, under a ‘wet lease’. The booking confirmation stated that the bookings were issued by TUIFly, but that the flight was operated by Thomson Airways.
The four passengers claimed from Thomson Airwaysthe compensation for the significant delay of the flight. However, according to that airline, given thatTUIFlybore the operational responsibility for the performance of the flight, the claim for compensation must be brought against the latter air company only. In that context, the referring court asked the Court of Justice to clarifythe concept of an ‘operating air carrier’.
According to the Court, an airline which decides to perform a particular flight, including fixing its itinerary, and, by so doing, offers to conclude a contract of air carriage with members of the public must be regarded as the operating air carrier. The adoption of such a decision means that that air company bears the responsibility for performing the flight, including, inter alia, any cancellation or significantly delayed time of arrival. Therefore, an airline, such as Thomson Airways, which leases an aircraft, including its crew, under a wet lease to another air company, but does not bear the operational responsibility for the flight, cannot be regarded as the operating air carrier for the purposes of Regulation (EC) No 61/2004.