At the beginning of the corona pandemic, many airlines severely restricted or even stopped their flight operations. Partly because of blanket bans imposed by some governments, but mostly for economic reasons. The ECJ has now decided that repatriation flights organized by governments do not constitute substitute transport within the meaning of the Air Passenger Rights Regulation.

In March 2020, the Austrian federal government relied in particular on the fear factor in order to be able to enforce restrictive measures such as lockdowns and entry bans. Air traffic came to an almost complete standstill, as only a few carriers maintained passenger flights to/from Austria. Austrian Airlines, Lauda and Wizz Air canceled all scheduled flights to/from Austria. The result: Thousands of passengers are stranded in different parts of the world.

For this reason, among other things, special repatriation flights operated by Lauda, ​​Austrian Airlines and Level Europe were organized. However, these were not free of charge, and those affected had to pay a contribution to the costs. This wasn't exactly cheap either, but there was hardly an alternative. The European Court of Justice had to deal with one case.

The background: A couple flies in March 2020 as part of a package tour from Vienna to Mauritius. However, the return flight for March 20 has to be canceled due to the measures imposed by the Austrian federal government in connection with the COVID-19 pandemic. An alternative transport is ruled out, as commercial air traffic to Austria has generally been discontinued. The couple's travel agency finally refers them to a repatriation flight organized by the Republic of Austria. The passengers then register on the website of the Ministry of Foreign Affairs and are transported to Vienna, but have to pay a fee of EUR 500 per person to the Republic. The couple believes that the air carrier that had canceled their original flight did not meet their obligations under the Air Passenger Rights Regulation and are suing them for the costs.

In the first instance, i.e. before the district court of Schwechat, the airline was ordered to pay. The carrier appealed against this. The Korneuburg Regional Court submitted the matter to the European Court of Justice for a preliminary ruling. This decided that a repatriation flight is not “other transport to the final destination under comparable conditions” within the meaning of the Air Passenger Rights Ordinance. Among other things, one of the reasons for the decision was that the state repatriation flights cannot be booked regularly by airlines, but were "marketed" via the consulates. Specifically, those affected had to actively report to the diplomatic missions abroad or to the Foreign Ministry.

Of course, the ECJ states that the passengers' claims for reimbursement of the ticket costs as well as for care and support remain independent of this. According to the lawyer who represented the airline in court, this is not said to have been denied by the airline.