It is well known that, according to the Regulation (EC) No. 261/2004, where a passenger is denied boarding the air carrier has the duty to provide him with assistance and flat-rate compensation. Pursuant to Article 2 of the abovementioned Regulation, "denied boarding means a refusal to carry passengers on a flight, although they have presented themselves for boarding (...) except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation".

But is this definition to be considered as a strict one?

The captioned dispute arises from a strike by staff occurred at Barcelona Airport on 28th July 2006, following which the scheduled 11:40 flight from Barcelona to Helsinki had to be cancelled by the air carrier Finnair.

Consequently, Finnair decided to reschedule its flights, so that some of the passengers of the cancelled flight could arrive to Helsinki on the 11:40 flight of the following day, 29th July 2006, and some others on a specially arranged 21:40 flight the same day.

As a consequence of that rescheduling, some of the passengers who had bought their ticket to Helsinki for the 11:40 flight on 29th July 2006 were compelled to board on the 11:40 flight on 30th July 2006 and on another specially arranged 21:40 flight. The same occurred to passengers who had bought their ticket for the 11:40 flight of 30th July 2006, like Mr Lassooy, who arrived to Helsinki on the special 21:40 flight.

Mr Lassoy therefore brought an action before Finnish courts, seeking an order for Finnair, which has denied him boarding, to pay him the flat-rate compensation of €400 provided for by Article 4 of Regulation (EC) No. 261/2004 for all intra-Community flights of more than 1.500 km.

Having doubts as to the correct interpretation of the concept of "denied boarding", the Finnish Supreme Court seeks a ruling from the Court of Justice in this regard.

In its judgment, rendered on October 4th 2012, the Court holds that "the concept of 'denied boarding' relates not only to cases of overbooking but also to those concerning other grounds, such as operational reasons.": in fact, limiting the scope of 'denied boarding' exclusively to cases of overbooking would have the effect of substantially reducing the protection afforded to passengers in the situation of Mr Lassooy.

Indeed, if Mr Lassooy were regarded as not having been denied boarding, he could not rely either on the provisions relating to cancellation of flights or on those relating to delay. Thus, he would not fall within any of the categories entitling him to the protective measures for air passengers, which would be totally contrary to the objective of the relevant European legislation. The Court interpretation follows, in fact, not only from the wording of the regulation, but also from its objective, namely that of ensuring a high level of protection for air passengers.

Furthermore, as also highlighted by Advocate General Bot in his opinion, it would be easy for an air carrier to use a rescheduling of its flights (or a similar measure) rather than an overbooking, in order to deny a passenger boarding without paying him any compensation.

The Court also states that denied boarding cannot be justified by grounds relating to rescheduling of flights as a result of extraordinary circumstances, such a strike at an airport: the Regulation in fact lays down the cases where there are grounds for denying boarding, in particular for reasons of health, safety or security, or because of inadequate travel documentation.

In this case, the Court highlights that the denial of boarding such as that in question "is not comparable to those specifically mentioned in Article 2(j) of Regulation No, 261/2004, since it is in no way attributable to the passenger to whom boarding is denied".

On the other hand, the Courts says that even if the decision of rescheduling flights was taken by Finnair in order to avoid the passengers affected by the flights cancelled having excessively long waiting times, that situation is comparable to a denial of boarding due to initial overbooking by the carrier for economic reasons. Finnair had in fact reallocated Mr Lassooy's seat in order to be able to carry other passengers, itself choosing which passengers to carry.

In any case, the Court reminds that, even if it the air carrier has no duty to pay compensation to passengers in case the flight cancellation or delay is due to extraordinary circumstances - as long as it had no control over those events -, nevertheless this exemption does not apply in case the air carrier decides to reschedule its flight due to extraordinary circumstances. In this way, in fact, the measure of denied boarding affects one or more arbitrary selected passengers: the harm caused to the latter is therefore completely attributable to the air carrier, which shall be required to pay compensation for the denied boarding.

The Court has also confirmed that, if the situation, which caused denial of boarding, cannot be attributed to the air carrier, the latter has the right to seek compensation against the person liable for the occurrence, including third parties.

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.