The Federal Court of Justice has ruled that the claim for compensation under the Air Passenger Rights Regulation is not to be asserted against the air carrier whose aircraft and crew were used on the basis of a "wet lease agreement", but against the air carrier with which the passenger booked the flight.
The applicants claim compensation from the defendant air carrier for a flight delay pursuant to Art. 5 para. 1 lit. c and Article 7(1), first sentence, point (b) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 296/91 (Air Passenger Rights Regulation).
The plaintiffs each booked a flight from Düsseldorf to Nador (Morocco) with the defendant airline. The flight was operated under the defendant's IATA code, but on the basis of a so-called "wet lease agreement" (agreement between two airlines to lease an aircraft, according to which the "lessor" also provides the flight crew) with an aircraft and crew from a Spanish airline. The flight arrived in Nador with a delay of more than seven hours.
Course of the process:
The district court dismissed the claims for payment of compensation. The district court dismissed the appeals.
In response to the plaintiffs' appeals, the Federal Supreme Court overturned the contested judgments and awarded the plaintiffs the requested compensation payments.
Unlike the lower courts, it did not consider the air carrier whose aircraft and crew were used on the basis of the "wet lease agreement", but the defendant air carrier as the operating air carrier against which the claim for compensation under the Passenger Rights Regulation is to be asserted. In doing so, it relied in particular on recital 7 of the Air Passenger Rights Regulation. According to this, in the interest of effective application, the obligations under the regulation are to be incumbent on the operating air carrier that operates a flight, regardless of whether the flight is operated with its own aircraft or with an aircraft hired (with or without crew) or in any other form. Moreover, the leasing air carrier is not better placed, and possibly not in a position at all due to a lack of presence at the airport, to provide the support and compensation services provided for in the regulation. This is also not contradicted by the fact that Regulation (EC) No. 2111/2005 of 14 December 2005, which concerns, among other things, the information of passengers about the operating air carrier, as can be seen from its recital 13, regards "wet lease" as a case in which the hiring air carrier does not operate the flight itself. The information pursuant to Art. 11 (1) of this regulation primarily serves to inform passengers about possible safety risks and thus serves other concerns than the Passenger Rights Regulation.
X ZR 102/16
AG Düsseldorf - Judgment of 7 April 2016 - 47 C 390/15
Düsseldorf Regional Court - Judgment of 28 October 2016 - 22 S 139/16
X ZR 106/16
AG Düsseldorf - Judgment of 17 February 2016 - 54 C 176/15
Düsseldorf Regional Court - Judgment of 28 October 2016 - 22 S 90/16
Judgments of the Federal Supreme Court of 12 September 2017 - X ZR 102/16, X ZR 106/16
Source: Press release of the Federal Supreme Court of 13.09.2017
GoldbergUllrich Attorneys at Law 2017