Denied boarding and air passenger rights in the EU

The Court of Justice of the European Union (“CJEU”) heard the case, ref no. C-238/22, of a passenger who could not check-in for a flight from Frankfurt am Main, Germany, to Madrid, Spain, which she had booked for the next day. The passenger contacted LATAM Airlines, which informed the passenger that it had transferred her to a flight operated the previous day without informing her beforehand. It also informed the passenger that her reservation for the return flight, which should have taken place more than two weeks later, had been blocked because she had not checked in for the outbound flight. The check-in procedure allows passengers to check their luggage on board and obtain a boarding pass.

The passenger brought an action for compensation for denied boarding of a flight before the Regional Court of Frankfurt am Main (“Referring Court”) pursuant to Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (“Regulation 261/2004”). The Referring court referred the matter to the CJEU for a preliminary ruling, asking the CJEU to clarify whether compensation for denied boarding under Regulation 261/2004 presupposes that the passenger checked in for the flight even though the airline had informed the passenger in advance that it would not be possible for the passenger to board the flight. The Referring court also asked whether an airline may be exempted from the obligation to pay compensation, as provided for in Regulation 261/2004 in respect of cancellations if it informs the passenger sufficiently in advance of the denied boarding, that is to say, at least two weeks before the scheduled departure of the flight.

The CJEU ruled in its judgment C-238/22 of 26 October 2023 that in the event of a denied boarding, compensation is due even if the passenger did not check in for the flight. If the airline had informed the passenger in advance that he would be denied boarding against his will on a flight for which he had a confirmed reservation, the requirement to check in would have been an unnecessary formality.

The CJEU has also ruled that the right to compensation applies even if the passenger was informed of the denied boarding at least two weeks before departure according to the timetable. According to the CJEU, there is no reason to apply a rule that applies only to flight cancellations, which exempts airlines from the obligation to pay compensation to passengers informed of the cancellation at least two weeks before the scheduled departure.