EC Regulation 261/2004 is now well-known to everyone who has ever boarded a plane and had to deal with a flight delay or cancellation. This Regulation gives passengers the right to financial compensation under certain circumstances. Since this regulation took effect, many parts of it have been further interpreted and fleshed out in (European) case law. On 4 October 2012 the European Court of Justice gave a decision on a number of questions that had been submitted to it for a preliminary ruling concerning the term “denied boarding” as contained in the Regulation.

Denied boarding is defined in Article 2, in J of the Regulation as the refusal to transport passengers on a flight, even if they hold a confirmed booking and have checked in on time. If this occurs, passengers are entitled to financial compensation ranging from € 125 to € 600. Denied boarding does not entitle passengers to financial compensation if this occurs on reasonable grounds, for instance for reasons of health, safety or security, or because of inadequate travel documents.

In the decision of 4 October 2012, the passengers in question had booked a flight from A Coruña (Spain) to Santo Domingo, a flight with a stopover in Madrid. When checking in for the first leg of the journey, the passengers immediately checked in for the second leg and were also given their boarding passes for this second leg. The first flight had a delay of 1 hour and 25 minutes. Because the air carrier assumed that the passengers would not make their connecting flight due to this delay, it cancelled their boarding passes for the second leg. The booked seats were then assigned to other passengers. To the air carrier’s surprise, the passengers nonetheless showed up at the gate on time. They were not admitted to the flight, however. It was not until the next day that they were transported to their final destination, where they ultimately arrived with a delay of 27 hours.

The question that the European Court answered was whether a case like the one described above can be qualified as denied boarding. If that is the case, then the particular passengers are entitled to financial compensation.

According to the Court, the legislator gave the term ‘denied boarding’ a broad meaning that goes further than denial in the event of overbooking. Denied boarding for operational reasons cannot be considered to be based on reasonable grounds, which means that in the case at hand the passengers were denied boarding and are therefore entitled to financial compensation.

In the case to which this decision pertains, it was established that the passengers had reported to the gate on time. Under Dutch law, it is up to the passenger to demonstrate that they were on time, both at the check-in desk and at the gate. Experience teaches that proving this can be very difficult however. There was one case, for instance, in which the passengers, in a case identical to this one, were sent back while in the gate to the aircraft, after which their boarding passes were torn. The aircraft was still at the gate, it was still open, but still the passengers were not allowed to board. Their seats too had been sold to new passengers. The court ruled however that it had not been proven that the passengers were on time. The extensive documentation of the situation by means of photographs could have helped here, something that a future case may perhaps demonstrate.

By: Christien Beernink