Impact of pre-emptive denied boarding on passenger rights - CJEU in LATAM (C-238/22)

Last Thursday, on October 26, the CJEU issued a new judgment on rights of passengers who have been denied boarding, interpreting Regulation No 261/2004. In the LATAM Airlines Group case (C-238/22), the passenger booked return flights with Latam between Frankfurt am Main and Madrid for 22-12-2017 and 7-1-2018. When the passenger could not check in online on Dec 21, they contacted Latam and heard that the airline changed their flight date unilaterally to Dec 20. They just did not inform the passenger about this (which is a bit of a problem, you must agree). Oh, and since the passenger did not take the re-booked flight (they did not know about they were missing), they also lost the right to take the return flight on Jan 7. The airline's policy was that the outward flight had to be taken for the return flight reservation to remain valid. Latam still refunded the ticket the passenger did not use. They refused, however, to either pay compensation pursuant to Regulation 261/2004 or to compensate the passenger for the new reservation they made with a new carrier. 

Pre-emptive denied boarding

The CJEU clarifies that when the airline denies boarding to passengers in advance, against their will - here by informing the passenger that they lost the right to the return flight - the passenger is not expected to still present themselves for boarding to maintain their passenger rights (para 38). This is an important clarification as the literal wording of Article 2(j) of the Regulation 261/2004 qualifies 'denied boarding' as a refusal to carry passengers on a flight, although they have presented themselves for boarding (para 23). This in turns means, pursuant to Article 3(2), passengers being present for check-in (para 24). The CJEU confirms that the concept of 'denied boarding' should be interpreted broadly to offer a wide scope of passenger protection and covers also situations of pre-emptively denied boarding, that is boarding denied in advance (paras 28-29). Still, passengers may claim their compensation despite not presenting themselves for boarding as CJEU perceives their situation as not distinguishable from that of passengers whose reservation was transferred to another flight by the airline, who fall within the scope of Regulation 261/2004 pursuant to its Article 3(2)(b) (para 32). Further argument stems from the historical objective of the Regulation 261/2004 - to prevent passengers' hardship caused by overbooking of flights. As such, drafters did not anticipate pre-emptive denied boarding explicitly in the text of the provisions (para 34).

Right to compensation

Further question pertained to the application of Article 5(1)(c)(i) of Regulation 261/2004, which excludes passengers' right to claim compensation for a cancelled flight, if they were informed about the cancellation at least 2 weeks before the scheduled departure time (para 42). As this provision introduces an exception to passenger rights, it need to be interpreted strictly (para 44), and as such, it does not apply to denied boarding but only to cancelled flights (para 45).