On 26 October 2023, the Court of Justice handed down its judgment in Case C‑238/22, FW v LATAM Airlines Group SA, on the interpretation of Article 2(j), Article 3(2), Article 4(3), Article 5(1)(c)(i) and Article 7 of Regulation (EC) No 261/2004. The request has been made in proceedings between FW and LATAM Airlines Group SA (“Latam”) concerning a claim for compensation made by the first after the latter barred her from a flight which was due to be operated between Madrid and Frankfurt am Main.

Finding impossible to check-in online for the outward flight on 21 December 2017, FW contacted Latam, which informed her that it had, unilaterally and without telling her in advance, amended her reservation to transfer her to an earlier flight, which was to be operated on 20 December 2017. In the course of that communication, moreover, Latam informed FW that she had been barred from the return flight on 7 January 2018, on the ground that she had not taken the outward flight. As a result, FW reserved both an outward flight and a return flight with another air carrier and paid EUR 528 for the corresponding tickets. Prior to the initiation of the action at stake, moreover, Latam had nevertheless refunded her EUR 101. 

On 2 September 2021, the Amtsgericht Frankfurt am Main (Local Court of Frankfurt am Main) ordered Latam to pay FW a sum of EUR 426 by way of damages, corresponding to the remainder of the price of those tickets, plus EUR 250 compensation, dismissing FW’s claim seeking additional compensation of EUR 250 on account of the denied boarding of the return flight which she had reserved with Latam. FW, therefore, brought an appeal before the Landgericht Frankfurt am Main (Regional Court of Frankfurt am Main; 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 two questions for a preliminary ruling.

By the first question, the referring court asked whether Article 4(3) of Regulation No 261/2004, read in conjunction with Article 2(j) thereof, must be interpreted as meaning that an operating air carrier which has informed a passenger in advance that, against the latter’s will, it is going to deny him or her boarding in respect of a flight for which he or she has a confirmed reservation, need not compensate that passenger where he or she did not present him or herself for boarding under the conditions set in Article 3(2) of that regulation.

According to the Court, in a situation where a passenger has a confirmed reservation for a flight departing from an airport located in the territory of a Member State to which the Treaty applies, the concept of “denied boarding” means that that passenger, except in the case of cancellation as provided for in Article 5 of Regulation 261/2004, presented him or herself for check-in as stipulated and at the time indicated in advance and in writing by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time, or that that passenger has been transferred by an air carrier or tour operator from the flight for which he or she held a reservation to another flight, irrespective of the reason. Article 4(3) of Regulation No 261/2004, read in conjunction with its Article 2(j) and Article 3(2) do not, in all circumstances, make compensation for denied boarding subject to the condition that the passengers concerned must have presented themselves for check-in.

By the second question, instead, the referring court asked whether Article 5(1)(c)(i) of Regulation No 261/2004 must be interpreted as meaning that that provision establishing an exception to the right to compensation of passengers in the event of cancellation of a flight also governs the situation in which a passenger has been informed, at least two weeks before the scheduled time of departure of the flight, that, against that passenger’s will, the operating air carrier is going to refuse to carry him or her, so that the passenger concerned is not granted the right to compensation for denied boarding provided for in Article 4 of that regulation.

According to the Court, the exception to the right to compensation, provided for in Article 5(1)(c)(i) of Regulation No 261/2004, must be confined solely to the cases of cancellation referred to in that provision and cannot be extended to those of denied boarding referred to in Article 4 of that regulation. Article 5(1)(c)(i) of Regulation No 261/2004, therefore, cannot be applied by analogy, in the context of denied boarding, in order to reduce the scope of the right to compensation set out in Article 4(3) of that regulation.

Marco Stillo