A recent European Court of Justice (ECJ) ruling has concluded that in cases where a flight is operated by an airline which is different than the ticket vendor, the ticket vendor may still be the one to hold responsible for disruptions if they fulfil a certain set of conditions.
The main argument supporting the standpoint of the ECJ, to whom the legal contestants were referred to by the Landgericht Hamburg, was that in cases where the above circumstances are present (for example, long-term wet-lease contracts between airlines), the airline making the decision to perform the flight and scheduling it still falls into the definition of operating air carrier, which is counter-intuitive with the general use of the definition.
Passenger Wirth and three travel companions filed their claim directly against the carrier Thomson Airways and not the ticket vendor TUIFly – their flight had been delayed significantly and regulation 261/2004 entitled them to monetary compensation. Thomson Airways leased the aircraft with its crew (wet-lease) to TUIFly and it was the passengers’ view that Thomson Airways is the one at fault for the disruption. It is also the general claims handling practice in such cases, to claim against the airline operating the aircraft fulfilling the flight in the literal sense – Thomson Airways maintains the aircraft, employs the crew and therefore it is intuitive to think that they are responsible for any problems regarding the flight.
However, after the thorough investigation of the court it was uncovered that the contract between TUIFly and Thomson Airways explicitly stated that several important processes such as passenger security, on-board services, ground handling, slot reservation and authorization acquirement remained with the ticket vendor TUIFly and were not outsourced to Thomson Airways. This critical fact meant that even with Thomson Airways being marked as the operating airline on the booking reservations and tickets, TUIFly still fulfilled the role of operating air carrier, concluding the contract of air carriage with the passengers.
The important fact to take away from the ruling is that the airline against which a claim case can be rightfully made varies on a case by case basis depending on the wet-lease contract, in such scenarios.