AIR PASSENGERS HAVE THE RIGHT TO COMPENSATION IN CASE OF PRE-EMPTIVELY DENIED BOARDING
Today we are going to analyse the Judgment of the Court of Justice of the European Union (CJEU), Eighth Chamber, in Case C‑238/22 (LATAM), 26 October 2023 (ECLI:EU:C:2023:815). Related documents: EUR-Lex – InfoCuria – Press release nº 162/23.
WHY IS THIS JUDGEMENT OF THE CJEU IMPORTANT?
The CJEU takes an important step in consumer protection because, from now on, airlines will have to compensate passengers in the event of pre-emptively denied boarding, even if they did not present themselves for boarding and even if they have been informed at least two weeks before the scheduled time of departure of the flight.
WHAT ARE THE FACTS AND REASONS OF THE CASE?
According to the Judgment of the Court, FW booked a return flight with Latam Airlines between Frankfurt am Main and Madrid. The outward flight was scheduled for 22 December 2017 and the return flight for 7 January 2018. Finding it impossible to check-in online for the outward flight on 21 December 2017, FW contacted Latam Airlines. The latter then informed her that it had, unilaterally and without informing her in advance, amended her reservation to transfer her to an earlier flight, which was to be operated on 20 December 2017. In the course of that communication, Latam Airlines also informed FW that she had been barred from the return flight on 7 January 2018, on the ground that she had not taken the outward flight. As a result, FW reserved both an outward flight and a return flight with another air carrier and paid EUR 528.23 for the corresponding tickets. Prior to the initiation of the action in the main proceedings, Latam Airlines had nevertheless refunded her EUR 101.55. The subject of this reference for a preliminary ruling is an additional compensation of EUR 250, claimed by FW against Latam Airlines, due to the denied boarding of the return flight which she had reserved with that air carrier.
Firstly, by its first question, the referring court asks, in essence, whether, in accordance with current regulations, an operating air carrier which has informed a passenger in advance that, against that passenger’s will, it is going to deny him or her boarding in respect of a flight for which he or she has a confirmed reservation, need not compensate that passenger where he or she did not present him or herself for boarding.
Secondly, in the event of the first question being answered in the affirmative, the referring court asks, in essence, whether the regulation that establishes an exception to the right to compensation of passengers in the event of cancellation of a flight also governs the situation of pre-emptively denied boarding.
WHAT DOES THE CJEU SAY?
On the first point, the CJEU notes that Regulation No 261/2004 repealed Regulation No 295/91, which had intended exclusively to react against the excessive practice of denied boarding to an overbooked scheduled flight. By contrast, in the current concept of ‘denied boarding’ omits any reference to the cause of the denied boarding. Thus, the EU legislature expanded the scope of the concept of ‘denied boarding’ in order to cover all situations.
On the other hand, the Court thinks that, although current regulations suggest that a passenger can only be established to have been ‘denied boarding’ if that passenger presented him or herself for check-in, that cannot be applied in a situation of pre-emptively denied boarding. In this sense, it is important to take into account the fact that the purpose of the Regulation is to ensure a high level of protection for passengers. Because of that, the CJEU says that a passenger is not required to present him or herself for check-in where an operating air carrier has informed him or her in advance that, against that passenger’s will, it is going deny him or her boarding in respect of a flight for which that passenger has a confirmed reservation. Therefore, the airline must compensate that passenger, even if he or she did not present him or herself for boarding.
Pursuant to the second question of the Request for a preliminary ruling, the CJEU grants the right to compensation for denied boarding, taking into account the purpose of Regulation No 261/2004, without being possible to apply, by analogy, an exception made for situations in which a flight is cancelled to cases of pre-emptively denied boarding (it must be interpreted strictly).
Sergi Calvet Coll
Lawyer 3053 Girona Bar Association