European Court of Justice clarifies scope of passenger’s rights in the event of denied boarding by air carriers
On 30 April 2020, the European Court of Justice (the ‘Court’) clarified that the refusal to board a passenger on an aircraft due to the supposedly inadequate nature of the travel documents does not deprive the said passenger of the protection conferred by the regulations on air passenger compensation and assistance.
This case C-584/18 developed from a preliminary ruling request from the Larnaca District Court in Cyprus (Eparchiako Dikastirio Larnakas), which was made in the proceedings in the names of D.Z. v Blue Air – Airline Management Solutions SRL.
Background
In September 2015, the applicant D.Z., a Kazakh national, went to Larnaca Airport in Cyprus to board a flight with the Romanian air carrier Blue Air to Bucharest, Romania where D.Z. planned to stay for a total of seven days. Upon arriving at the airport passport control in Larnaca, D.Z. presented a variety of personal documentation including his passport, a Cypriot temporary residence permit, the application for an entry visa into the Romanian Territory and the reply by the Romanian Ministry of Foreign Affairs that no such visa was necessary.
Blue Air’s handling agent at the Larnaca Airport informed the ground control staff at the Bucharest airport which then proceeded to inform D.Z. that he could not board his flight to
Bucharest and this since he could not enter Romania without holding a national visa and thus was denied boarding.
Given the circumstances, D.Z. brought an action against Blue Air before the Larnaca District Court whereby he sought compensation for the prejudice which he claimed to have suffered on account of the denied boarding, and which damages related to the price of the respective flight ticket and the price for his hotel reservations made for his stay in Bucharest.
Understanding EU Regulation 261/20041
Regulation 261/2004 establishes common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. The Regulation establishes the minimum rights that passengers have when (i) they are denied boarding against their will; (ii) their flight is cancelled; or (iii) their flight is delayed.
The provisions of the Regulation apply to passengers which, either depart from an airport located in the territory of a Member State, or to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State and this unless such passenger has received benefits or compensation in that third country.
Denied boarding is defined as the refusal to carry passengers on a flight and this even though they have presented themselves for boarding. This however is subject to several exceptions where there are reasonable grounds to deny them boarding, such as reasons of health, safety, security, or inadequate travel documentation.
When a passenger is denied boarding against his/her will, the operating air carrier shall, subject to a number of exceptions, compensate such passenger in line with the parameters set in the Regulation and shall further assist the same passenger by offering the passenger the choice between reimbursement of the full cost of the flight ticket or re-routing to their final destination and taking care of the said passenger. With regards to the right to care, such passengers shall be offered, amongst other benefits, free of charge meals and refreshments in a reasonable relation to the waiting time, hotel accommodation and transport between the airport and place of accommodation.
Referral to the Court
The referring court asked the Court to interpret several pieces of EU legislation, namely (i) Decision No 565/2014/EU which introduces a simplified regime for the control of persons at the external borders based on the unilateral recognition by Bulgaria, Croatia, Cyprus and Romania of certain documents as equivalent to their national visas for transit through or intended stays on their territories not exceeding 90 days in any 180 day period2; (ii) the Schengen Borders Code which establishes a community code on the rules governing the movement of persons across borders3; and (iii) Regulation 261/2004.
The Court first considered that
Romania, by means of EU Decision 565/2014, had recognised that visas and other residency permits issued by other Member States for stays not exceeding 90 days in any 180-day period are equivalent to its own national visas and may not derogate, on a case-by-case basis, from that regime. The Court further noted that a thirdcountry national, such as D.Z., holding an entry visa or a residence permit which qualifies for such recognition may rely on EU Decision 564/2014 against that Member State.
However, the Court declared that D.Z. could not directly rely on EU Decision 565/2014 against the air carrier, as the air carrier was not acting as an emanation of the Member State. It remarked that the task of the air carrier, in this regard, is solely to verify whether foreign nationals hold the necessary travel documentation for entry into the territory of the Member State of destination.
The Court pointed out that under the Schengen Borders Code, refusal of entry is subject to particularly strict formal requirements, inter alia, seeking to safeguard the rights of defence. The fact that an air carrier denies boarding to a third-country national, in the absence of a decision refusing entry which is in writing, substantiated and communicated to the person concerned, is contrary to the Schengen Borders code.
In conclusion, the Court explained that denied boarding based on alleged inadequate nature of travel documentation does not deprive the passenger from the protection provided for under Regulation 261/2004. The Court further noted that –
Accordingly, in the event of challenge, it is for the competent court to assess whether such denied boarding is reasonably justified or not and not the air carrier. In this regard, the Court further explained that air carriers cannot use their respective terms and conditions to limit or exclude their liability in the event of denied boarding for reasons relating to alleged inadequate travel documentation and thus deprive the passenger of any rights to compensation which he or she may have under Regulation 261/2004.
Following the preliminary ruling issued by the Court, the matter has been referred back to the Larnaca District Court which will apply the interpretation of the Court to the facts of the case and proceed to adjudicate the case accordingly. The Court’s interpretation is deemed to be binding on other national courts or tribunals before which a similar issue is raised.
“It would be contrary to the objective of that regulation, which implies a high level of protection for passengers, to confer on the air carrier concerned the power to assess and decide unilaterally and definitively whether denied boarding is reasonably justified and, consequently, to deprive the passengers in question of protection they are entitled to under that regulation.” Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
Decision No 565/2014/EU of the European Parliament and of the Council of 15 May 2014 introducing a simplified regime for the control of persons at the external borders based on the unilateral recognition by Bulgaria, Croatia, Cyprus and Romania of certain documents as equivalent to their national visas for transit through or intended stays on their territories not exceeding 90 days in any 180-day period and repealing Decisions No 895/2006/EC and No 582/2008/EC
Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)