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The Regulation on Air Passenger Rights does not undermine the principle of complete and exclusive sovereignty of a State over its airspace

Three air passengers made a single reservation with Lufthansa, via a travel agency, for a flight from Brussels (Belgium) to San José (United States), with a stopover in Newark (United States).

The entirety of the flight was operated by United Airlines, a carrier established in the United States. The three passengers arrived at their final destination with a delay of 223 minutes. The company Happy Flights, now holder of their claim, lodged a claim for compensation against United Airlines before Brussels Company Court (Dutch-speaking), arguing that the Regulation on Air Passenger Rights was applicable. 1

In its judgment delivered today, the Court of Justice recalls first of all that a flight with one or more connections which was the subject of a single reservation constitutes a whole for the purposes of the right of passengers to compensation provided for by EU law. The applicability of the Regulation on Air Passenger Rights is to be assessed with regard to the place of the flight’s initial departure and the place of the final destination of that flight.

Moreover, the Court specifies that the non-EU air carrier (United Airlines), which does not have a contract of carriage with the passengers but which operated the flight, may be liable to pay the passengers compensation. The carrier which, in the course of its passenger carriage activities, decides to perform a particular flight, including fixing its itinerary, constitutes the operating air carrier. That carrier is therefore regarded as acting on behalf of the contracting carrier (Lufthansa). The Court however emphasises that the operating air carrier (United Airlines) which is obliged to compensate a passenger retains the right to seek compensation from any person, including third parties, in accordance with the applicable national law.

Regarding the validity of the Regulation on Air Passenger Rights in the light of the principle of customary international law according to which each State has complete and exclusive sovereignty over its airspace, the Court states that a connecting flight falls within the scope of the regulation on the ground that the passengers have started their journey from an airport located in a Member State. It adds that that applicability criterion does not undermine the conditions for the application of the principle of complete and exclusive sovereignty of a State over its airspace.