Newsletter March 2013: Newsletter FLO – Aviation

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at Law Flieger Law office bvba


I. The facts
In the Cachafeiro Martinez-Reboredo Varela-Villamor case versus Iberia a preliminary ruling has been rendered concerning the interpretation of articles 2(j), 3(2) and 4(3) of Regulation 261/2004.

Until February 16th, 2005 Council Regulation EC 295/91 of February 1991 was in force, in which Article 4 provided:
This Regulation establishes common minimum rules applicable where passengers are denied access to an overbooked scheduled flight for which they have a valid ticket and a confirmed reservation departing from an airport located in the territory of a Member State to which the (EC) Treaty applies, irrespective of the State where the air carrier is established, the nationality of the passenger and the point of destination’.

Regulation 261/2004 states in its preamble that the Community, in the field of air transport, should aim insuring a high level of protection for passengers. Also full account should be taken of the requirements of consumer protection in general.

The preamble continues that, while Regulation No 295/91 created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellation without prior warning and that affected by long delays.

The Community should, according to the preamble of Regulation 261/2004, therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market.

Still according to the preamble, the idea is that numbers of passengers denied boarding against their will should be reduced by requiring air carriers to call for volunteers to surrender their reservations, in exchange for benefits, instead of denying passengers boarding, and by fully compensating those finally denied boarding.

Lastly, the preamble states that those passengers who were denies boarding, should be able either to cancel their flights, with reimbursement of their tickets, or to continue them under satisfactory conditions, and should be adequately cared for while awaiting a later flight.

The Regulation 261/2004 provides the definitions of denied boarding which means a refusal on a flight, although the passenger presented himself for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny him boarding, such as reasons of health, safety or security, or inadequate travel documentation.

The same regulation requires in section 3 that the passenger has a confirmed reservation on the flight concerned, present himself for check-in at the time indicated in advance 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.

When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier. Volunteers shall be assisted in accordance with Article 8, such assistance being additional to the benefits mentioned in this paragraph. See Article 4 Regulation 261/2004.

If an insufficient number of volunteers comes forward to allow the remaining passengers with reservations to board the flight, the operating air carrier may then deny boarding to passengers against their will.

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.


The intriguing part of this regulation is the reference to the compensation:
– € 250,00 for all flights of 1500 kilometres or less;
– € 400,00 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;
– € 600,00 for all flights which are not falling under the two above mentioned points.

II. The object of the preliminary ruling
The parties in this case, Mr Cachafeiro and Ms Martinez-Reboredo Varela-Villamor, both bought airline tickets from Iberia for the journey from A Coruña (Spain) to Santo Domingo ( Dominican Republic). The ticket comprised two flights: one from A Coruña to Madrid and another form Madrid to Santo Domingo the same day.

The parties checked in their luggage directly to their final destination, and were given two boarding cards for the two successive flights.

The first flight from A Coruña to Madrid was delayed with 1 hour and 25 minutes. In anticipation to the fact that that delay would result in the two passengers missing their connection in Madrid, Iberia cancelled their boarding cards for the second flight from Madrid to Santo Domingo. It should be noted that on arrival in Madrid the parties presented themselves at the departure gate in the final boarding call to passengers. The Iberia staff did not, however, allow them to board on the grounds that their boarding cards had been cancelled and their seats allocated to other passengers.

The parties had to wait until the following day in order to take the Santo Domingo flight.

III. The claim
The parties involved were seeking their claim and decision ordering Iberia to pay them the sum of € 600,00 each by way of compensation for ‘denied boarding’ such according to section 4(3) and 7(1)(c) of Regulation 261/2004. The carrier disputed those claims, since in their view there was no ‘denied boarding’, but rather a missed connection, since the decision to deny the parties boarding was not attributable to overbooking, but was caused by the delay to the earlier flight.

As a side note it should be mentioned that the carrier Iberia paid the compensation as foreseen in Articles 4(3) and 7 of Regulation 261/2004 to some other passengers for denied boarding on the Madrid – Santo Domingo flight.

The referring court needs to ascertain whether the concept of ‘denied boarding’ refers exclusively to situations in which flights have been overbooked initially or whether that concept may be extended to cover other situations such as that of the passengers in this case.

One needs to understand if the concept of ‘denied boarding’ as contained in Article 2 (j) and Article 3(2) and 4(3) of Regulation 261/2004 can be regarded as including a situation in which an airline refuses to allow boarding because the first flight included in the ticket is subject to a delay attributable to the airline and the latter mistakenly expects the passengers not to arrive in time to catch the second flight, and so allows their seats to be taken by other passengers.

In essence the court asks if the Articles of the Regulation must be interpreted as meaning that the concept of ‘denied boarding’ includes a situation where, in the context of a single contract of carriage involving a number of reservations on immediately connecting flights and a single check-in, an air carrier denies some passengers boarding on the ground that the first flight included in their reservation has been subject to a delay attributable to that carrier and the latter mistakenly expected those passengers not to arrive in time to board on the second flight. According to the Court it is apparent that the parties were prevented from boarding the flight Madrid – Santo Domingo not because of an alleged failure to comply with the conditions mentioned in Article 3(2) of Regulation 261/2004, but because their reservation had been cancelled as a result of the delay on the earlier A Coruña – Madrid flight. The passengers reached their final destination of Santo Domingo 27 hours after the scheduled arrival time indicated when they reserved their travel. It should be noted that they held a reservation and they duly presented themselves for boarding in due time. Analysing the wording of Article 2(j) of Regulation 261/2004 one will notice that it does not link ‘denied boarding’ to carrier’s ‘overbooking’ the flight concerned for economic reasons.

Article 2(j) or Regulation 261/2004 doesn’t contain in its definition of ‘denied boarding’ any reference to the ground on which an air carrier refuses to carry a passenger ( See Travaux préparatoires ) and Regulation 261/2004, by which the scope of the definition of ‘denied boarding’ has been expanded beyond merely situations where boarding is denied on account of overbooking, should be defined broadly as covering all circumstances in which an air carrier may refuse to carry a passenger.

IV. The Decision of the Court
The Court considers that a broad interpretation of the rights granted to passengers is justified ( see, to that effect, Case C-344/04 IATA and ELFAA ( 2006 ) ECR I-403, paragraph 69, and Case C-549/07 Wallentin-Hermann (2008) ECR I-11061, paragraph 18). Otherwise the practical effect would be of substantially reducing the protection afforded to passengers under Regulation 261/2004 and would be contrary to the aim of that Regulation.

Therefore not only situations of overbooking are covered by the concept of ‘denied boarding’. Thus the Court considers that the denial of boarding by an air carrier in the circumstances of this case should be included in the concept of ‘denied boarding’ within the meaning of Article 2(j) of Regulation 261/2004. The Court, as it always does in cases on passengers’ rights, states that the EU legislature intended to provide a non-exhaustive list of the situations in which there are reasonable grounds for denying boarding.

Nonetheless, it cannot be inferred from such wording that there are reasonable grounds to deny boarding on the basis of an operational reason such as that in question in the main proceedings.

In this case it should also be stated that the air carrier mistakenly expected the passengers in question not to arrive in time to board the second flight and that as a consequence it allowed other passengers to take the seats on that second flight which were to have been occupied by the passengers to whom boarding was denied.

We think that such a reason of denying boarding is not comparable to those specifically mentioned in the Regulation 261/2004, since it is in no way attributable to the passenger to whom boarding is denied.

The Court states that it cannot be accepted that an air carrier may increase considerably the situations in which it would have reasonable grounds for denying a passenger boarding. That would necessarily have the consequence of depriving such as a passenger of all protection, which would be contrary to the objective of Regulation 261/2004 which seeks to ensure a high level of protection for passengers by means of a broad interpretation of the rights granted to them. The Court is always taking a very broad interpretation when it concerns the right of passengers and takes another view when it concerns the rights of the air carriers.

In this case the Court states that the denial of boarding is in any event attributable to the carrier alone since it mistakenly considered that the passengers concerned would not be able to present themselves in time to board the following flight or sold tickets for successive flights for which the time available for catching the following flight was insufficient.

Therefore the Court states that there are no reasonable grounds for denial of boarding such as that at issue, and the Court states that the concept of ‘denied boarding’ includes the situation where, in the context of a single contract of carriage involving a number of reservations on immediately connecting flights and a single check-in, an air carrier denies boarding to some passengers on the ground that the first flight included in their reservation has been subject to a delay attributable to that carrier and the latter mistakenly expected those passengers not to arrive in time to board the second flight.

Needless to say that the evolution of pro passengers rights will certainly not change on a short notice.


For further information and comment, please contact Arthur Flieger at,, telephone: +32 3 238 77 66


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