Latest developments in European Shopper Regulation: Affect of pre-emptive denied boarding on passenger rights – Cyber Information

Final Thursday, on October 26, the CJEU issued a brand new judgment on rights of passengers who’ve been denied boarding, decoding Regulation No 261/2004. Within the LATAM Airways Group case (C-238/22), the passenger booked return flights with Latam between Frankfurt am Major and Madrid for 22-12-2017 and 7-1-2018. When the passenger couldn’t test in on-line on Dec 21, they contacted Latam and heard that the airline modified their flight date unilaterally to Dec 20. They only didn’t inform the passenger about this (which is a little bit of an issue, it’s essential to agree). Oh, and for the reason that passenger didn’t take the re-booked flight (they didn’t learn about they had been lacking), additionally they misplaced the precise to take the return flight on Jan 7. The airline’s coverage was that the outward flight needed to be taken for the return flight reservation to stay legitimate. Latam nonetheless refunded the ticket the passenger didn’t use. They refused, nonetheless, to both pay compensation pursuant to Regulation 261/2004 or to compensate the passenger for the brand new reservation they made with a brand new service. 

Pre-emptive denied boarding

The CJEU clarifies that when the airline denies boarding to passengers upfront, towards their will – right here by informing the passenger that they misplaced the precise to the return flight – the passenger just isn’t anticipated to nonetheless current themselves for boarding to keep up their passenger rights (para 38). This is a crucial clarification because the literal wording of Article 2(j) of the Regulation 261/2004 qualifies ‘denied boarding’ as a refusal to hold passengers on a flight, though they’ve offered themselves for boarding (para 23). This in turns means, pursuant to Article 3(2), passengers being current for check-in (para 24). The CJEU confirms that the idea of ‘denied boarding’ ought to be interpreted broadly to supply a large scope of passenger safety and covers additionally conditions of pre-emptively denied boarding, that’s boarding denied upfront (paras 28-29). Nonetheless, passengers could declare their compensation regardless of not presenting themselves for boarding as CJEU perceives their state of affairs as not distinguishable from that of passengers whose reservation was transferred to a different flight by the airline, who fall throughout the scope of Regulation 261/2004 pursuant to its Article 3(2)(b) (para 32). Additional argument stems from the historic goal of the Regulation 261/2004 – to forestall passengers’ hardship attributable to overbooking of flights. As such, drafters didn’t anticipate pre-emptive denied boarding explicitly within the textual content of the provisions (para 34).

Proper to compensation

Additional query pertained to the appliance of Article 5(1)(c)(i) of Regulation 261/2004, which excludes passengers’ proper to assert compensation for a cancelled flight, in the event that they had been knowledgeable in regards to the cancellation not less than 2 weeks earlier than the scheduled departure time (para 42). As this provision introduces an exception to passenger rights, it must be interpreted strictly (para 44), and as such, it doesn’t apply to denied boarding however solely to cancelled flights (para 45).

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