Introduction
In 'FW v
Background
The referring case involved an individual ("FW") who had booked a round-trip flight with
A local court ordered
- Does the Regulation require a passenger to present themselves for check-in or boarding at the time indicated even though the operating air carrier has already given prior notification that it does not intend to carry that passenger for the Regulation be applicable and for compensation to be possible?
- Do the Regulation's respective provisions on cancellations and denied boarding mean that compensation is excluded where the passenger has been informed of the denial of boarding at least two weeks before the scheduled time of departure?
ECJ Considerations
Article 4(3) of the Regulation stipulates that "if boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 and assist them in accordance with Articles 8 and 9". On the other hand, Article 2(j) defines denied boarding as "[the] refusal to carry passengers on a flight, although they have presented themselves for boarding". The
A literal approach to the definition of denied boarding would require passengers to present themselves for boarding. The
In dealing with the second question, the referring court pointed out that instances of the flight being cancelled and being informed of denied boarding at least two weeks in advance are comparable and should be treated similarly so as not to treat passengers whose flights were cancelled less favourably. The
Since Article 5(1)(c)(i) was specific to flight cancellations, it could not be extended to instances of denied boarding, as that would reduce the scope of the right to compensation and would run contrary to the Regulation's objective. The exception to the right to compensation in cases where passengers are informed of the cancellation at least two weeks before the scheduled time of departure, could not govern the right to compensation for denied boarding since these different scenarios are provided for separately under the Regulation. Therefore, the wording of Article 4(3) above prevails, resulting in the passengers' right to compensation in cases of denied boarding in accordance with the Regulation's provisions.
Concluding Remarks
This ruling reaffirms the high level of protection afforded to air passengers in instances of denied boarding and highlights the distinguishing factors between flight cancellations and denied boarding. Moreover, passengers do not need to present themselves for boarding in order to be compensated, as this would result in an unnecessary formality and adds to the inconvenience of being denied boarding and having to make alternative arrangements – contrary to the Regulation's aim of ensuring a high level of protection for air passengers, irrespective of whether they were denied boarding or whether their flight was cancelled or delayed.
This article was first published in The Malta Independent on 24/01/2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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