The European Court of Justice has ruled that an airline which leases another carrier’s aircraft and crew is responsible for compensating passengers for a delay or cancellation and not the operator of the aircraft.

The ruling, in a case involving a claim by three German passengers against TUI UK airline Thomson Airways, was issued last week following a referral by a regional court in Hamburg.

The claim followed a delay to a flight from Hamburg to Cancun booked with TUIFly, German sister carrier of Thomson Airways.

TUIFly chartered both the aircraft and crew from Thomson Airways under a wet-lease arrangement.

The booking informed the passengers the flight would be operated by Thomson Airways.

There was a significant delay, entitling the passengers to compensation under EU Regulation 261 on air passengers’ rights, and they claimed from Thomson.

However, Thomson Airways refused to pay on the grounds that it was not the operating carrier.

The applicants successfully brought an action in the local court of Hamburg. Thomson Airways appealed, arguing that only the carrier with “the necessary presence on the ground and the information concerning passengers” was responsible, and the claim “must be brought against TUIFly”.

The Hamburg Regional Court sought an ECJ ruling on which airline had “operational responsibility” for the flights.

In its decision, the ECJ said: “It must be held that an air carrier, such as Thomson Airways, which leases an aircraft and its crew to another carrier under a wet lease, cannot be regarded as ‘operating air carrier’ within the meaning of the regulation.”

The case will now go back to the referring court. It is unclear why Thomson Airways did not merely redirect the claim to TUIFly.