ECJ: Compensation after Denied Boarding

Dec 8, 2023 Benn-Ibler Rechtsanwälte

Passengers are entitled to compensation under the Air Passenger Rights Regulation (Regulation 261/2004) if the airline denies them boarding on a return flight, even if they do not arrive at the airport on time. This has recently been decided by, among others, the European Court of Justice (ECJ).

The plaintiff booked a round-trip flight between Frankfurt and Madrid on LATAM Airlines. When the online check-in did not work, she was informed by the airline that she had been rebooked on a flight the day before and that she would also be banned from the return flight as a result of her absence on that flight. The plaintiff then booked alternative flights on her own. These were also reimbursed by LATAM.

Since the change of booking was deemed to be a cancellation, the court of first instance awarded the plaintiff compensation for the outbound flight. Nevertheless, the court denied compensation for denial of return. Whether the denied boarding was due to cancellation or denied boarding made no difference to the passenger. The district court therefore applied Article 5(1)(c)(ii) (‘cancellation’) of the EU Air Passengers Rights Regulation by analogy. It found that the plaintiff had been informed of the denied boarding more than two weeks before the scheduled time of departure. Therefore, no compensation was due.

The court of appeal referred the case to the European Court of Justice for a preliminary ruling, which then clarified the following two issues:

Firstly, the ECJ rejected the analogous application of the two-week period in the event of cancellation to cases of denied boarding during the continuation of flight operations. This is because Art. 5 of the Regulation on the rights of air passengers refers exclusively to the case of cancellation and must be interpreted narrowly. It exempts airlines from the obligation to pay compensation. An analogous application would, contrary to the aims of the Regulation, reduce the scope of the right to compensation in the event of denied boarding (Article 4).

The ECJ also clarified that, contrary to Art. 3(2) of the Regulation, passengers do not have to present themselves at the airport in good time if they have already been denied boarding in advance. This could not reasonably be expected of a passenger and would also be contrary to the objective of ensuring a high level of protection for air passengers.

ECJ C-283/22 (26 October 2023)