EN
Aviation

European Court of Justice: Operating carrier means operational carrier

logo
Legal news
calendar 30 July 2018
globus Denmark

On 4 July 2018, the Court of Justice of the European Union (the CJEU) handed down its ruling in the case regarding Wolfgang Wirth a.o. Vs. Thomson Airways Ltd. (C-532/17). The court ruling verifies what we already know; that the lessor of a wet lease is not the operating carrier and that the carrier stated on the booking / boarding card is not necessarily the actual operating carrier.

The Facts of the Wirth vs. Thomson Airways case

The case regarded a claim for compensation pursuant to Regulation 261. Mr. Wirth was on a trip from Hamburg in Germany to Cancún in Mexico. He arrived more than three hours late.

In this particular case, TUIFly GmbH wet leased an aircraft from Thomson Airways. A “wet lease” means the chartering of both an aircraft and a crew. TUIFly (the lessee) was responsible for the overall operational aspects of the flight including ground handling, passenger handling, cargo handling, security, on-board services, applications for slots, marketing, authorizations etc.

The passengers filed a claim for compensation against Thomson Airways as the booking information stated Thomson Airways as the operating carrier. Thomson Airways denied the claim and argued that they were not the operating carrier, as this concept is defined in Regulation 261.

Regulation 261 solely applies to operating carriers

Pursuant to article 3(3), the operating carrier is always responsible for the obligations under the Regulation and not, for example, another air carrier which may have sold the ticket. The notion of the air carrier is presented in recital 7.

The court found that according to Article 2(b) of Regulation No 261/2004, the concept of an ‘operating air carrier’ must be understood as referring to an ‘air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.

Thus, there are two cumulative steps; 1) an air carrier must be regarded as an “operating air carrier”, meaning that the air carrier must actually operate the flight and 2) there has to be a contract with a passenger.

The court then rendered that the air carrier regarded as operating is the air carrier which decides to perform a particular flight, thus executes the contract of air carriage, and fixes the itinerary – summarized; the air carrier who bears the full responsibility for performing the flight – including cancellations or delays – is considered as the operating carrier.

In the case at hand, Thomson Airways only provided the aircraft and crew, while TUIFly handled all other operational aspects of the flight, including planning of the flights. The court therefore found that Thomson Airways was not the operating carrier, regardless that the passenger had been informed that the flight was operated by Thomson Airways.

The “operating carrier” is not the actual operating carrier

The case confirms that the operating carrier is the carrier that does the overall planning and not the carrier that merely provides aircraft and crew to another air carrier on a wet lease-basis. Further, the case confirms that the carrier stated on the booking is not necessarily the actual operating carrier. When handling claims, air carriers must therefore look into whether the flight was carried out on the basis of a wet lease arrangement.

Wet lease: Who is ultimately liable?

When making wet lease arrangements, air carriers must continue to be aware of this distinction. The terms of a wet lease agreement should have provisions that addresses who is ultimately liable, where a delay is due to both problems with the aircraft / crew as well as the operational planning. Existing standard wet lease arrangements should therefore be checked and perhaps adjusted.

[Judgment of 4 July 2018, Wolfgang Wirth a.o., C-532/17, the Court of Justice of the European Union]

The Facts of the Wirth vs. Thomson Airways case

The case regarded a claim for compensation pursuant to Regulation 261. Mr. Wirth was on a trip from Hamburg in Germany to Cancún in Mexico. He arrived more than three hours late.

In this particular case, TUIFly GmbH wet leased an aircraft from Thomson Airways. A “wet lease” means the chartering of both an aircraft and a crew. TUIFly (the lessee) was responsible for the overall operational aspects of the flight including ground handling, passenger handling, cargo handling, security, on-board services, applications for slots, marketing, authorizations etc.

The passengers filed a claim for compensation against Thomson Airways as the booking information stated Thomson Airways as the operating carrier. Thomson Airways denied the claim and argued that they were not the operating carrier, as this concept is defined in Regulation 261.

Regulation 261 solely applies to operating carriers

Pursuant to article 3(3), the operating carrier is always responsible for the obligations under the Regulation and not, for example, another air carrier which may have sold the ticket. The notion of the air carrier is presented in recital 7.

The court found that according to Article 2(b) of Regulation No 261/2004, the concept of an ‘operating air carrier’ must be understood as referring to an ‘air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.

Thus, there are two cumulative steps; 1) an air carrier must be regarded as an “operating air carrier”, meaning that the air carrier must actually operate the flight and 2) there has to be a contract with a passenger.

The court then rendered that the air carrier regarded as operating is the air carrier which decides to perform a particular flight, thus executes the contract of air carriage, and fixes the itinerary – summarized; the air carrier who bears the full responsibility for performing the flight – including cancellations or delays – is considered as the operating carrier.

In the case at hand, Thomson Airways only provided the aircraft and crew, while TUIFly handled all other operational aspects of the flight, including planning of the flights. The court therefore found that Thomson Airways was not the operating carrier, regardless that the passenger had been informed that the flight was operated by Thomson Airways.

The “operating carrier” is not the actual operating carrier

The case confirms that the operating carrier is the carrier that does the overall planning and not the carrier that merely provides aircraft and crew to another air carrier on a wet lease-basis. Further, the case confirms that the carrier stated on the booking is not necessarily the actual operating carrier. When handling claims, air carriers must therefore look into whether the flight was carried out on the basis of a wet lease arrangement.

Wet lease: Who is ultimately liable?

When making wet lease arrangements, air carriers must continue to be aware of this distinction. The terms of a wet lease agreement should have provisions that addresses who is ultimately liable, where a delay is due to both problems with the aircraft / crew as well as the operational planning. Existing standard wet lease arrangements should therefore be checked and perhaps adjusted.

[Judgment of 4 July 2018, Wolfgang Wirth a.o., C-532/17, the Court of Justice of the European Union]

Receive our newsletter

Aage

Krogh

Partner

Similar

logo
Aviation

25 May 2022

Air carriers are not obligated to refund fees charged by ticket providers

logo
Aviation

4 May 2022

Despite several days' notice, a strike counted as an extraordinary circumstance

logo
Aviation

25 April 2022

Air Carrier not liable: No requirement to rebook to an earlier flight

logo
Aviation

25 August 2021

logo
Aviation

15 April 2021

logo
Aviation

5 April 2021

The team

Aage

Krogh

Partner

Amalie

Bjerre Hilmand

Legal assistant

Amalie

Sofie Sveen Kvam

Legal assistant

Amanda

Jepsen Bregnhardt

Junior legal assistant

Andrea

Brix Danielsen

Legal assistant

Anna

Bonander

Legal assistant

Anna

Kreutzmann

Legal assistant

Anne

Poulsen

Senior legal advisor

Anne

Voigt Kjær

Legal assistant

Anton

Winther Hansen

Legal assistant

Ashley

Kristine Morton

Legal assistant

Bror

Johan Kristensen

Senior legal advisor

Carl-Emil

Schumann Dinesen

Senior legal advisor

Caroline

Skarsø Erwolter

Legal assistant

Cecilie

Padbjerg Kjelstrup

Legal assistant

Chris

Anders Nielsen

Senior legal advisor

Cille

Fahnø

Legal assistant

Elvira

Feline Basse Schougaard

Legal advisor

Ema

Besic-Ahmetagic

Legal assistant

Emma

Engvang Hansen

Legal assistant

Emma

Frøslev Larsen

Legal manager

Fransine

Andersson

Senior legal assistant

Frederik

Dybro Mikkelsen

Junior legal assistant

Frederikke

Østerlund Haarder

Legal assistant

Frida

Assarson

Senior legal assistant

Gabrielle

Marie Rokkjær

Legal assistant

Gustav

Vestergaard

Legal assistant

Hila

Noori Hashimi

Legal assistant

Ida

Ralfkiær Rask

Legal assistant

Ingrid

Lützner Buch

Legal assistant

Isabella

Graae Norsker

Legal assistant

Isabella

Rocio Nielsen

Legal assistant

Ittqa

Hussain

Legal assistant

Izabell

Celina Bastrup Lüthje

Legal assistant

Johanne

Berner Nielsen

Legal assistant

Josephine

Thenning Kannegaard

Junior legal assistant

Kaisa

Nova Ordell Guldbrand Thygaard

Junior legal assistant

Karoline

Halfdan Petersen

Legal assistant

Kathrine

Arntzen Lauvstad

Junior legal assistant

Laura

Jørgensen

Legal assistant

Lise

Jørgen Carlsen Gjerde

Associate

Liva

Tværmose Høegh

Legal assistant

Magnus

Henckel Holtse

Legal assistant

Marie

Langermann-Nielsen

Legal assistant

Maya

Cecillia Jørgensen

Senior legal advisor

Mie

Lundberg Larsen

Legal manager

Nikoline

Lanzky Otto

Legal assistant

Peter

Basbøll

Legal assistant

Rosa

Gilliam-Vigh

Legal assistant

Selma

Agopian

Senior EU associate

Sille

Lyng Mejding

Legal assistant

Simone

Bjergskov Nielsen

Legal assistant

Sofie

Storli

Legal assistant

Sofija

Cabrilo

Legal assistant

Sophia

Maria Dahl-Jensen

Senior legal advisor

Stine

Bank Olstrøm

Legal assistant