On 29 July 2019, the Court of Justice held its judgment in Case C-354/18, Radu-Lucian Rusu, Oana-Maria Rusuv. SC Blue Air – Airline Management Solutions SRL, on the right of compensation for material and moral damages in case of denied boarding.The request for preliminary ruling was made in the proceeding between two passengers and the airline SC Blue Air.

The passengers booked two tickets with Blue Air to fly to the UK. However, due to a change of the operating aircraft and its fewer seats on board, they were denied boarding and re-routed on another Blue Air flight taking place five days later. The airline first offered the passengers a free flight ticket as compensation, which they rejected as not fully compensating their loss. Subsequently the Blue Air, according to Regulation No 261/2004, offered a compensation of 400 Euro each.

Since the passengers thought the compensation aimed at covering only the moral damage but not the material one, they applied to the Judecătoria Bacău (Court of First Instance of Bacău, Romania)asking to sentence the Blue Air to compensate both material and moral damages. The Court of First Instance accepted the complaint only partially, and therefore both the passengers and the airline applied to the Tribunalul Bacău (Higher Court of Bacău; the referring court), which referred to the Court of Justice for a preliminary ruling on the provisions of Regulation No 261/2004.

As for the type of damage to be compensated under Article 7 and its amount, the Court established that, when it comes to an individual loss pertaining to the passengers’ own situation, it is not covered by the amount of compensation pursuant to the article. However, it can be recovered on the basis of the further compensation under Article 12, paragraph 1, and it is up to the referring court to determine its constitutive requirements and amount. In this regard, the choice to deduct from it the amount of compensation paid out pursuant to Regulation No 261/2004 is left to the national court, inasmuch as article 12, paragraph 1, does not envisage any obligation but rather a possibility.

With regard to the information to provide to the passengers under Article 4, paragraph 3, in conjunction with Article 8, paragraph 1, and their possible obligations, the Court stated that it is up to the operating air carrier to disclose detailed information concerning the re-routing, while passengers are not expected to actively seek any of them. Finally, as for the burden of proving that the restart was carried out as soon as possible, the Court established that it falls on the operating air carrier and not on the passengers involved.

Marco Stillo