On 6 March 2025, the Court of Justice handed down its judgment in Case C‑20/24, M1.R. and M2.R. v AAA sp. z o.o., on the interpretation of Article 2(g) and Article 3(2) and (3) of Regulation (EC) No 261/2004. The request has been made in proceedings between M1.R. and M2.R., two air passengers, on the one hand, and, on the other hand, AAA sp. z o.o. (“AAA”), an air carrier, concerning a claim for compensation brought by those passengers on the basis of Regulation No 261/2004, following the long delay to the arrival of a flight at its final destination.

AAA entered into a contract with BBB sp. z o.o., a tour operator, under which it provided the latter with specific flights on specific dates, for which BBB then sold tickets to air passengers.

M1.R. and M2.R. participated in a package tour, including a flight departing from Tenerife to Warsaw on 20 May 2021 operated by AAA, whose contract had been concluded between CCC sp. z o.o., on behalf of those passengers, and BBB. The arrival of the flight at issue was delayed by more than 22 hours, so that M1.R. and M2.R., in order to establish their standing to bring an action for compensation, submitted copies of their boarding passes. AAA, however, refused their request on the ground that they had not established that they had a confirmed, paid reservation for that flight. M1.R. and M2.R., therefore, brought an action in front of the Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court of miasto stołeczne Warszawa; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice five questions for a preliminary ruling.

By the first and second question, the referring court asked whether Article 2(g) and Article 3(2)(a) of Regulation No 261/2004 must be interpreted as meaning that a boarding pass may constitute “other proof” within the meaning of the former of those provisions, which indicates that the reservation has been accepted and registered by the air carrier or tour operator, such that a passenger with a boarding pass is deemed to have a “confirmed reservation” within the meaning of the latter of those provisions, on the flight concerned, where no special abnormal circumstance is demonstrated.

According to the Court, a boarding pass is issued to a passenger for a specific flight, confers on him or her entitlement to transport and authorises him or her to board the aircraft and to take that flight, once that passenger has checked in stating, in particular, the ticket or reservation number. A boarding pass, therefore, may constitute “other proof” within the meaning of Article 2(g) of Regulation No 261/2004, which indicates that the reservation has been accepted and registered by the air carrier or tour operator in respect of the flight concerned.

By the third to fifth questions, instead, the referring court asked whether Article 3(3) of Regulation No 261/2004 must be interpreted as meaning that a passenger is not regarded as travelling free of charge or at a reduced fare not available directly or indirectly to the public, within the meaning of that provision, where, first, the tour operator pays the price of the flight to the operating air carrier in accordance with market conditions and, secondly, the price of the package tour is paid to that tour operator not by that passenger but by a third party. The referring court, moreover, asked whether it is for that air carrier to prove that that passenger travelled free of charge or at a reduced fare, or if it is for that passenger to prove that he or she paid the price of the flight.

According to the Court, in light of the air carrier’s liability to compensate passengers in the event of a long delay to an arriving flight, the exception provided for in the first sentence of Article 3(3) of Regulation No 261/2004 covers only situations in which it is the air carrier itself which authorises passengers to travel free of charge or at a reduced fare not available directly or indirectly to the public. Such an interpretation is consistent with the objective of Regulation No 261/2004, which is to ensure a high level of protection for air passengers, applying to those not only on scheduled but also on non-scheduled flights, including those forming part of package tours. In this regard, in so far as the tour operator received consideration for the package tour performed by the passengers concerned and paid the price of the flight to the operating air carrier, and the latter received remuneration in accordance with market conditions, those passengers did not travel free of charge or at a reduced fare not available directly or indirectly to the public within the meaning of the first sentence of Article 3(3) of Regulation No 261/2004.