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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Cymdek (Air transport - Right to compensation in the event of a long delay to a flight - Judgment) [2025] EUECJ C-20/24 (06 March 2025) URL: http://www.bailii.org/eu/cases/EUECJ/2025/C2024.html Cite as: [2025] EUECJ C-20/24, ECLI:EU:C:2025:139, EU:C:2025:139 |
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Provisional text
JUDGMENT OF THE COURT (Seventh Chamber)
6 March 2025 (*)
( Reference for a preliminary ruling - Air transport - Regulation (EC) No 261/2004 - Article 2(g) - Article 3(2) and (3) - Right to compensation in the event of a long delay to a flight - Scope - Passengers having a boarding pass - Proof of a reservation confirmed by the air carrier - Passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public - Flight part of a package tour financed by a third party - Burden of providing payment )
In Case C‑20/24 [Cymdek], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland), made by decision of 24 November 2023, received at the Court on 12 January 2024, in the proceedings
M1.R.,
M2.R.
v
AAA sp. z o.o.,
THE COURT (Seventh Chamber),
composed of M. Gavalec (Rapporteur), President of the Chamber, Z. Csehi and F. Schalin, Judges,
Advocate General: R. Norkus,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– M1.R. and M2.R., by P. Mędygrał, radca prawny,
– AAA sp. z o.o., by K. Bień, radca prawny,
– the Polish Government, by B. Majczyna, acting as Agent,
– the European Commission, by B. Sasinowska and N. Yerrell, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 2(g) and Article 3(2) and (3) 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 295/91 (OJ 2004 L 46, p. 1).
2 The request has been made in proceedings between M1.R. and M2.R., two air passengers (‘the passengers at issue in the main proceedings’), on the one hand, and, on the other hand, the company AAA sp. z o.o., an air carrier, concerning a claim for compensation brought by those passengers on the basis of Regulation No 261/2004, following the long delay to the arrival of a flight at its final destination.
Legal context
3 According to recitals 1 and 5 of Regulation No 261/2004:
‘(1) Action by the [European] Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.
…
(5) Since the distinction between scheduled and non-scheduled air services is weakening, such protection should apply to passengers not only on scheduled but also on non-scheduled flights, including those forming part of package tours.
…’
4 Article 2 of that regulation, headed ‘Definitions’, is worded as follows:
‘For the purposes of this Regulation:
…
(f) “ticket” means a valid document giving entitlement to transport, or something equivalent in paperless form, including electronic form, issued or authorised by the air carrier or its authorised agent;
(g) “reservation” means the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator;
…
(j) “denied boarding” means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;
…’
5 Article 3 of Regulation No 261/2004, headed ‘Scope’, provides as follows:
‘1. This Regulation shall apply:
(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;
(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.
2. Paragraph 1 shall apply on the condition that passengers:
(a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,
– as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent,
or, if no time is indicated,
– not later than 45 minutes before the published departure time; or
(b) have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.
3. This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.
…
5. This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
6 AAA, an air carrier offering charter flights, entered into a contract with BBB sp. z o.o., a tour operator, under which AAA provided the latter with specific flights on specific dates, for which flights BBB then sold tickets to air passengers. BBB then paid the price of the flights to AAA.
7 The passengers at issue in the main proceedings participated in a package tour, including a flight departing from Tenerife (Spain) to Warsaw (Poland) on 20 May 2021, operated by AAA. The contract concerning the package tour had been concluded between CCC sp. z o.o., on behalf of those passengers, and BBB. The arrival of the flight at issue was delayed by more than 22 hours.
8 In order to establish their standing to bring an action for compensation in respect of the delay to the flight in question, the passengers at issue in the main proceedings submitted copies of boarding passes for that flight. However, AAA refused to pay compensation to those passengers, on the ground that they had not established that they had a confirmed, paid reservation for that flight. According to AAA, the package tour in which those passengers had participated had been paid for by CCC on preferential terms, so that those passengers travelled free of charge or at a reduced fare, within the meaning of Article 3(3) of Regulation No 261/2004, which excluded the right to payment of compensation under that regulation.
9 The passengers at issue in the main proceedings take the view that, by submitting boarding passes to obtain such compensation, they demonstrated that they had a confirmed reservation, since those passes otherwise would not have been issued to them. Moreover, it is for AAA to establish that those passengers travelled free of charge, and not for the passengers to prove that they had paid the price of the flight operated by AAA. In any event, inasmuch as AAA had received a payment from BBB for operating that flight and the latter had obtained from CCC, which financed the package tour in which those passengers participated, a payment for that tour, including that flight, the passengers at issue in the main proceedings did not travel free of charge. In that regard, it is irrelevant in the light of Article 3(3) of Regulation No 261/2004 whether the flight was paid for by the passengers or by a third party, provided that third party was not the carrier.
10 The Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland), which is the referring court, has doubts as to whether the submission of a boarding pass by a passenger constitutes ‘other proof’, within the meaning of Article 2(g) of Regulation No 261/2004, which indicates that the reservation has been accepted and registered by the air carrier or tour operator.
11 That court states, in that regard, that the guidance derived from the judgment of 21 December 2021, Azurair and Others (C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038), does not enable an answer to be given to the question as to whether EU law authorises, in a situation such as that before it, the production of ‘other proof’ within the meaning of that provision, which indicates that a passenger has a confirmed reservation for a flight, where the boarding pass submitted by that passenger does not contain all the information mentioned in that judgment, such as the flight arrival time.
12 Furthermore, even if AAA and certain compositions of the Polish appellate courts take the view that the conditions set out in Article 3(2)(a) of that regulation must be interpreted restrictively, the referring court considers that a boarding pass is not issued to a person at random, but to a passenger who holds a confirmed reservation for the flight concerned, after that passenger has checked in for the flight, the number of the ticket or the reservation having to be stated at check-in. Apart from in certain exceptional situations, there is no other rational way of explaining how such a passenger could obtain that boarding pass without having such a reservation.
13 In addition, unlike AAA and certain compositions of the Polish appellate courts, the referring court considers that it is for the air carrier to prove that the flight in question was free of charge, and that that carrier should not confine itself to inferring legal consequences to its advantage from a mere claim to that effect.
14 Furthermore, that court raises the issue of the interpretation of the expression ‘travelling free of charge or at a reduced fare not available directly or indirectly to the public’, provided for in Article 3(3) of Regulation No 261/2004. It takes the view that, in the case of package tours, if a tour for which the tour operator was paid directly by the passengers or by another entity on their behalf includes a flight for which the air carrier was paid by that tour operator, those passengers are not travelling ‘free of charge’ within the meaning of that provision.
15 As regards, specifically, the concept of ‘reduced fare’ within the meaning of that provision, the referring court raises the issue of whether it should be interpreted as meaning that it concerns a reduction offered to the passenger by the air carrier or whether it also covers a situation in which that carrier receives remuneration in accordance with market conditions from the tour operator, but the tour operator or another entity enables the passengers to participate in the package tour on preferential terms. To that court, the latter position appears contrary to the objective of the regulation and difficult to apply in practice due to the lack of criteria for determining what constitutes preferential terms of participation in a package tour.
16 In those circumstances, the Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 2(g) of Regulation [No 261/2004] be interpreted as meaning that a passenger’s boarding pass may constitute other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator?
(2) Must Article 3(2)(a) of [Regulation No 261/2004] be interpreted as meaning that passengers who have a boarding pass for a particular flight, where no special abnormal circumstance is demonstrated, should be considered to have a confirmed reservation on the flight concerned?
(3) Must Article 3(3) of [Regulation No 261/2004] be interpreted as meaning that the passenger bears the burden of proving that the flight was paid for, or alternatively that the carrier, in order to be released from liability, has to prove that the passenger travelled free of charge or at a reduced fare?
(4) Must Article 3(3) of [Regulation No 261/2004] be interpreted as meaning that where a passenger has purchased a package tour from a tour operator and the latter has paid the fare for the flight to the carrier, the flight has been paid for?
(5) Must Article 3(3) of [Regulation No 261/2004] be interpreted as meaning that where a third party purchases a package tour on behalf of passengers, in connection with which the tour operator pays an arm’s-length remuneration to the charter carrier, this is not a case of “[the passengers at issue in the main proceedings] travelling at a reduced fare”, irrespective of the terms of settlement between that third party and the passengers?’
Consideration of the questions referred
The first and second questions
17 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2(g) and Article 3(2)(a) of Regulation No 261/2004 must be interpreted as meaning that a boarding pass may constitute ‘other proof’ within the meaning of the former of those provisions, which indicates that the reservation has been accepted and registered by the air carrier or tour operator, such that a passenger with a boarding pass is deemed to have a ‘confirmed reservation’ within the meaning of the latter of those provisions, on the flight concerned, where no special abnormal circumstance is demonstrated.
18 It follows from Article 3(2)(a) of Regulation No 261/2004 that that regulation applies only on the condition, first, that the passengers have a confirmed reservation on the flight concerned and, second, that they present themselves for check-in in good time, except in the case of cancellation of the flight as referred to in Article 5 of that regulation. Since both conditions are cumulative, a passenger’s presence for check-in cannot be presumed by virtue of the fact that that passenger has a confirmed reservation on the flight concerned (see, to that effect, judgment of 25 January 2024, Laudamotion (Decision not to take a delayed flight), C‑474/22, EU:C:2024:73, paragraph 21 and the case-law cited).
19 Regulation No 261/2004 does not define ‘confirmed reservation’. However, the term ‘reservation’, for its part, is defined in Article 2(g) of that regulation as ‘the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator’. The concept of a ‘ticket’, within the meaning of Article 2(f) of that regulation, includes each tangible or intangible element conferring a right to transport on the passenger (see, to that effect, judgments of 6 October 2022, flightright (Air transport from Stuttgart to Kansas City), C‑436/21, EU:C:2022:762, paragraph 21 and the case-law cited, and of 21 December 2021, Azurair and Others, C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraph 40).
20 Furthermore, as regards the concept of ‘other proof’ within the meaning of Article 2(g) of Regulation No 261/2004, if the air passenger has other proof issued by the air carrier or tour operator, that other proof is equivalent to a ‘reservation’ within the meaning of that provision (see, to that effect, judgment of 21 December 2021, Azurair and Others, C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038, paragraph 42).
21 Those concepts must, in the interest of the high level of protection for passengers referred to in recital 1 of that regulation, be interpreted broadly (judgment of 6 October 2022, flightright (Transport Air transport from Stuttgart to Kansas City), C‑436/21, EU:C:2022:762, paragraph 22 and the case-law cited).
22 In the present case, it is apparent from the file before the Court that the passengers at issue in the main proceedings had boarding passes issued by the air carrier, which allowed them to take a flight operated by that carrier from Tenerife to Warsaw, by presenting themselves beforehand for check-in.
23 As the passengers at issue in the main proceedings, the Polish Government and the European Commission argued, in essence, in their written observations, a boarding pass is issued to a passenger for a specific flight, confers on him or her entitlement to transport and authorises him or her to board the aircraft and to take that flight, once that passenger has checked in stating, in particular, the ticket or reservation number.
24 It follows that a boarding pass may constitute ‘other proof’ within the meaning of Article 2(g) of Regulation No 261/2004, which indicates that the reservation has been accepted and registered by the air carrier or tour operator in respect of the flight concerned.
25 Such a conclusion cannot be called into question by the fact, invoked by the referring court, that the judgment of 21 December 2021, Azurair and Others (C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038), does not enable the question of whether a boarding pass can fall within the definition of ‘other proof’ within the meaning of Article 2(g) of Regulation No 261/2004 to be answered, inasmuch as that pass does not contain all the information referred to in that judgment, such as, in particular, the arrival time of the flight concerned.
26 Admittedly, the Court ruled, in paragraph 51 of that judgment, that Article 3(2)(a) of Regulation No 261/2004 must be interpreted as meaning that the passenger has a ‘confirmed reservation’, within the meaning of that provision, where the tour operator submits to that passenger, with whom it has a contract, ‘other proof’, within the meaning of Article 2(g) of that regulation, by which he or she is assured transport on a particular flight, individualised by points of departure and destination, times of departure and arrival, and the flight number, even in cases where that tour operator has not received confirmation from the air carrier concerned as to the times of departure and arrival of that flight.
27 However, it must be observed that, unlike in the present case, in the cases which gave rise to the judgment of 21 December 2021, Azurair and Others (C‑146/20, C‑188/20, C‑196/20 and C‑270/20, EU:C:2021:1038), the tour operator had submitted to the passengers information on the flight times which differed from that which the air carrier had last issued to the tour operator, the latter information not having been submitted to those passengers so that those passengers had only the information contained in the document submitted by the tour operator.
28 Furthermore, the Court has already held that, in so far as a given air carrier takes on board passengers holding a confirmed reservation on the flight concerned and transports them to their destination, those passengers must be considered to have complied with the requirement to present themselves for check-in prior to the flight (see, to that effect, order of 24 October 2019, easyJet Airline, C‑756/18, EU:C:2019:902, paragraph 28).
29 Conversely, inasmuch as passengers, such as the passengers at issue in the main proceedings, have correctly complied with the requirement to present themselves for check-in and taken the flight concerned with a boarding pass for that flight, it must be held that they have complied with the requirement to be in possession of a confirmed reservation for that flight.
30 That conclusion is corroborated by the objective, set out in recital 1 of Regulation No 261/2004, of ensuring a high level of protection for passengers.
31 Passengers whose flight is affected by a long delay can thus enjoy their entitlement to compensation without being required to prove subsequently, upon claiming compensation, that they had a confirmed reservation for the delayed flight on which they were transported in any event – a requirement which is inadequate in their situation (see, to that effect, order of 24 October 2019, easyJet Airline, C‑756/18, EU:C:2019:902, paragraph 32).
32 In that regard, as regards the hypothesis raised by AAA that a boarding pass could be used, if it is lost by its holder, by another person with similar data, suffice it to note that, as is apparent from Article 2(j) of Regulation No 261/2004, that provision allows the air carrier to deny boarding, inter alia, for reasons of inadequate travel documentation.
33 It follows from the foregoing that the answer to the first and second questions is that Article 2(g) and Article 3(2)(a) of Regulation No 261/2004 must be interpreted as meaning that a boarding pass may constitute ‘other proof’ within the meaning of the former of those provisions, which indicates that the reservation has been accepted and registered by the air carrier or tour operator, such that a passenger with a boarding pass is deemed to have a ‘confirmed reservation’, within the meaning of the latter of those provisions, on the flight concerned, where no special abnormal circumstance is demonstrated.
The third to fifth questions
34 By its third to fifth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(3) of Regulation No 261/2004 must be interpreted as meaning that a passenger is not regarded as travelling free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of that provision, where, first, the tour operator pays the price of the flight to the operating air carrier in accordance with market conditions and, secondly, the price of the package tour is paid to that tour operator not by that passenger but by a third party. That court also asks whether it is for that air carrier to prove that that passenger travelled free of charge or at a reduced fare, or if it is for that passenger to prove that he or she paid the price of the flight.
35 Under Article 3(3) of Regulation No 261/2004, that regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public.
36 In that regard, it must be stated that the inapplicability of that regulation set out in that provision is an exception to the rule that that regulation applies, as follows from Article 3(1) thereof, first, to passengers departing from an airport located in the territory of a Member State to which the Treaty applies and, secondly, to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is an air carrier established in the European Union, under the conditions set out in Article 3(2) of that regulation.
37 As the Court has held, having regard to the objective of Regulation No 261/2004, referred to in recital 1 thereof and consisting of ensuring a high level of protection for passengers, an exception to the provisions granting rights to passengers must be interpreted strictly (judgment of 16 January 2025, Qatar Airways, C‑516/23, EU:C:2025:21, paragraph 23 and the case-law cited).
38 Furthermore, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 21 November 2024, Mesto Rimavská Sobota, C‑370/23, EU:C:2024:972, paragraph 25 and the case-law cited).
39 It is true that the wording of the first sentence of Article 3(3) of Regulation No 261/2004 does not in itself enable it to be ascertained whether the scope of that provision is restricted to situations in which it is solely the operating air carrier which offers to the passengers the possibility of travelling free of charge or at a reduced fare not available directly or indirectly to the public.
40 So far as concerns the context of which that provision forms part, it follows from Article 3(3) of that regulation, inter alia, that passengers travelling by means of tickets issued free of charge by an air carrier do not fall within the scope of that regulation, unless those tickets were issued under a frequent flyer programme or other commercial programme (see, to that effect, order of 26 November 2020, SATA International – Azores Airlines, C‑316/20, EU:C:2020:966, paragraph 15).
41 The Court has already held in that regard that Article 3(3) of Regulation No 261/2004 must be interpreted as meaning that that regulation does not apply to a passenger who is travelling by means of a ticket issued at a preferential fare by an air carrier in connection with the sponsoring of an event, the benefit of which is restricted to certain specific persons and the issue of which requires the prior and individualised authorisation of that air carrier (order of 26 November 2020, SATA International – Azores Airlines, C‑316/20, EU:C:2020:966, paragraph 19).
42 In addition, under Article 3(5) of that regulation, the latter applies to any operating air carrier providing transport to passengers to or from an airport located in the territory of a Member State. That provision states that, where an operating air carrier which has no contract with the passenger performs obligations under that regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger (judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraph 28 and the case-law cited).
43 In that regard, the Court ruled that a passenger on a flight which has been delayed for three hours or more may bring an action for compensation under Articles 6 and 7 of Regulation No 261/2004 against the operating air carrier, even if that passenger and that air carrier have not entered into a contract between them and the flight in question forms part of a package tour (see, to that effect, judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraph 38).
44 Therefore, in the light of the operating air carrier’s liability to compensate passengers in the event of a long delay to an arriving flight, it should be noted that the exception provided for in the first sentence of Article 3(3) of Regulation No 261/2004 covers only situations in which it is the operating air carrier which authorises passengers to travel free of charge or at a reduced fare not available directly or indirectly to the public.
45 Such an interpretation is consistent with the objective of Regulation No 261/2004, which is to ensure a high level of protection for air passengers.
46 In that regard, recital 5 of that regulation states that such protection should apply to passengers not only on scheduled but also on non-scheduled flights, including those forming part of package tours.
47 It is apparent from the travaux préparatoires for that regulation that the EU legislature intended not to exclude from the scope of that regulation passengers whose flight forms part of a package tour but, on the contrary, to allow them to benefit from the rights granted by that regulation (see, to that effect, judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraph 36).
48 In the present case, in so far as the tour operator received consideration for the package tour performed by the passengers at issue in the main proceedings and paid the price of the flight to the operating air carrier and the latter received remuneration in accordance with market conditions, it must be held that those passengers did not travel free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of the first sentence of Article 3(3) of Regulation No 261/2004.
49 As is apparent from the case-law cited in paragraph 43 of the present judgment, in order for the passengers at issue in the main proceedings to assert rights vis-à-vis the operating air carrier, the fact that the price of the package tour was paid not by those passengers, who were not in a contractual relationship with that carrier, but by a third party, to the tour operator which in turn paid the price of the flight to that carrier, is irrelevant.
50 As regards the burden of proving that a passenger has travelled free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of the first sentence of Article 3(3) of Regulation No 261/2004, it should be noted that that provision, without expressly governing the allocation of that burden, establishes, as is apparent from paragraph 37 of the present judgment, an exception to the provisions granting rights to passengers, by excluding such a passenger from the scope of that regulation.
51 Therefore, in order to be released from its obligation to compensate that passenger, it is for the operating air carrier to demonstrate, in accordance with the detailed rules laid down by national law, that that passenger travelled free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of the first sentence of Article 3(3) of that regulation, and therefore does not fall within the scope of that regulation.
52 It must be stated that an interpretation consisting of imposing on passengers the burden of proof would not only be contrary to the objective of Regulation No 261/2004, which is to ensure a high level of protection for air passengers, but would also be difficult to implement, in particular in the specific context of the present case where the passengers at issue in the main proceedings booked a package tour with a tour operator.
53 As the passengers at issue in the main proceedings and the Commission argued, in essence, in their written observations, where a passenger does not reserve his or her package tour directly with the operating air carrier, but through a tour operator, it is generally that tour operator, as is the case here, which pays the price of the flight to that carrier, that passenger paying a price covering the whole package, including the flight. Besides the fact that that passenger is unaware of the exact price of the flight paid by that tour operator, that passenger has limited possibilities of proving that he or she paid the price of the flight.
54 It follows from the foregoing that the answer to the third to fifth questions is that Article 3(3) of Regulation No 261/2004 must be interpreted as meaning that a passenger is not regarded as travelling free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of that provision, where, first, the tour operator pays the price of the flight to the operating air carrier in accordance with market conditions and, secondly, the price of the package tour is paid to that tour operator not by that passenger but by a third party. It is for that air carrier to demonstrate, in accordance with the rules laid down by national law, that that passenger travelled free of charge or at such a reduced fare.
Costs
55 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Seventh Chamber) hereby rules:
1. Article 2(g) and Article 3(2)(a) 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 295/91
must be interpreted as meaning that a boarding pass may constitute ‘other proof’ within the meaning of the former of those provisions, which indicates that the reservation has been accepted and registered by the air carrier or tour operator, such that a passenger with a boarding pass is deemed to have a ‘confirmed reservation’ within the meaning of the latter of those provisions, on the flight concerned, where no special abnormal circumstance is demonstrated.
2. Article 3(3) of Regulation No 261/2004
must be interpreted as meaning that a passenger is not regarded as travelling free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of that provision, where, first, the tour operator pays the price of the flight to the operating air carrier in accordance with market conditions and, secondly, the price of the package tour is paid to that tour operator not by that passenger but by a third party. It is for that air carrier to demonstrate, in accordance with the rules laid down by national law, that that passenger travelled free of charge or at such a reduced fare.
[Signatures]
* Language of the case: Polish.
i The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
© European Union
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