Case C-173/07, Schenkel

>> Journey out and back not a single flight

Mr Schenkel booked in Germany, with Emirates, an outward and return journey from Düsseldorf to Manila via Dubai . His return flight from Manila was cancelled because of technical problems. Mr Schenkel eventually departed from two days later and arrived at Düsseldorf on the same day. He brought an action against Emirates, claiming compensation of EUR 600 in reliance on Arts 5(1)(c) and 7(1)(c) of Regulation 261/2004. Emirates submitted that the outward and return flights were to be regarded as two separate flights. The referring court asked whether Art. 3(1)(a) of Regulation 261/2004 was to be interpreted as applying to the case of an outward and return journey in which passengers who had originally departed from an airport located in the territory of a Member State to which the Treaty applied travelled back to that airport on a flight departing from an airport located in a non-member country.

The Court of Justice held that the term “flight” was not among those defined in Regulation 261/2004. The term must therefore be interpreted in the light of the provisions of Regulation 261/2004 as a whole and the objectives of that regulation.

To interpret Art. 3(1)(a) of Regulation 261/2004 in such a way that a flight included an outward and return journey would amount to depriving passengers of their rights in a situation in which the flight departing from an airport located in the territory of a Member State was not operated by a Community carrier. The principle of equal treatment or non-discrimination required that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment was objectively justified.

However, the Court found that a journey out and back could not be regarded as a single flight.
The Court found that to regard a “flight” within the meaning of Art. 3(1)(a) of Regulation 261/2004 as an outward and return journey would in fact have the effect of reducing the protection to be given to passengers under the regulation, which would be contrary to its objective of ensuring a high level of protection for passengers. The Court held that the concept of “flight” within the meaning of Regulation 261/2004 must be interpreted as consisting essentially in an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixed its itinerary.

The fact that the outward and return flights were the subject of a single booking had no effect on that conclusion. Consequently, Art. 3(1)(a) of Regulation 261/2004 could not apply to the case of an outward and return journey such as that at issue in the main proceedings.


Text of Judgement