Under EU legislation the ‘operating air carrier’ is liable to passengers for late flight compensation, but who is the operating air carrier where responsibilities are split between companies? The Court of Justice of the European Union has decided that where a carrier leases the aircraft and crew to the carrier who actually sells the flight, it is the selling carrier and not the leasing carrier who is liable.
In the case of Wolfgang Wirth and Others v Thomson Airways Ltd, Wirth and his fellow passengers brought an action to claim compensation against Thomson Airways Ltd, as their flight from Hamburg to Cancún had been delayed for over three hours. They had purchased their tickets from TUIfly, but the booking confirmation said their flight was ‘operated’ by Thomson Airways. Under EU Regulation 261/2004, which establishes compensation and assistance rules in cases of denied boarding, delay, or cancellation, the ‘operating air carrier’ is the responsible party.
In this case, responsibilities were split between the two companies. TUIfly was in charge of ‘ground handling including passenger handling, passenger welfare at all times, cargo handling, security in respect of passengers and baggage, arranging on-board services’ and similar. Thomson Airways provided the aircraft, including crew, for a stipulated number of flights. Thomson argued that it was not the ‘operating air carrier’.
The Hamburg court which was dealing with Wirth’s claim referred this aspect of EU law to the CJEU for an opinion. The CJEU found in favour of Thomson Airways. The CJEU considered that the decision to perform a particular flight, fix the itinerary, and offer the flight to the public were key as activities performed by an operating air carrier under the relevant regulation. TUIfly had undertaken those roles, and was therefore the correct party from which Wirth and his co-passengers should claim. This satisfied the regulation’s consumer protection objectives, as it provided more clarity for passengers as to which company would be responsible for compensation, with no requirement for consumers to consider chartering arrangements between carriers.
The case provides useful clarification as to where the responsibility lies for late flight compensation.