Change of reservation against the passenger’s will: compensation under Regulation 261/2004?

Background

The claimant made a single reservation from Jerez de la Frontera (Spain) to Frankfurt am Main (Germany), via Madrid (Spain). The reservation was changed by the airline so that she arrived in Madrid on a different flight, over four hours later than initially scheduled. Nevertheless she still boarded her connecting flight and arrived at the final destination on time.

The passenger brought a claim for compensation under Regulation 261/2004 as a result of changes to her reservation made against their will. She argued that despite the timely arrival in Germany, she had been denied boarding on her original first flight, and was therefore entitled to compensation.

Referral to the Court of Justice of the European Union (CJEU)

The referring court asked the CJEU whether a change by the airline of a passenger's reservation at check-in to a later flight, against their will, and where the initially reserved flight is not cancelled, amounts to denied boarding under Regulation 261/2004.

The CJEU's ruling

The CJEU was unable to rule on whether the facts of the dispute constituted denied boarding, because under Regulation 261/2004, there can only be denied boarding on the condition that the passenger presents themselves for check-in early enough. The referral did not state whether this was the case.

The CJEU therefore replied to a slightly different question in order to assist the referring court with its dispute. The CJEU considered whether compensation may be granted under Regulation 261/2004 where a passenger has a single booking for connecting flights, and that reservation is changed against the passenger's will, with two results: first, the passenger is put on a later first flight even though the initial flight is not cancelled, and secondly, the later flight still allows them to board the scheduled second flight and arrive on time at the final destination.

By framing the question this way, the CJEU could rely on precedent to state that connecting flights under one booking constitute a single flight for the purposes of compensation (Wegener[1]), and only the passenger's position at the end of the journey would be considered (see Article 2(h) of Regulation 261/2004 – the arrival time matters, not the route taken to get there).

The passenger did not suffer any delay upon arrival at her final destination. She was therefore not entitled to compensation under Regulation 261/2004.

Conclusion

The CJEU ruled on this case by reference to Article 2(h) of the Regulation: "alternative connecting flights available shall not be taken into account if the original planned arrival time is respected". This case states once again that no compensation for delay shall be granted where there are connecting flights under a single booking, and the final destination is reached on schedule.

The result obviously begs the question of whether the CJEU would have reached the same outcome had it been stated that the passenger had presented herself to check-in for her first flight on time. The definition of denied boarding in Article 2(j) suggests that the court would have had to dismiss the claim if the passenger had not done so, and the CJEU's reasoning suggests they would have arrived at the same outcome if the passenger had checked in on time, but we will never know whether the answer would have been "no denied boarding" or "no right to compensation".

It is unfortunate that while the original drafting of Regulation 261 addresses both connecting flights and denied boarding, it does not do so in a joined up manner and leaves open a literal interpretation in circumstances where the passenger had suffered no net loss and where the obvious intent of the Regulation was not to provide for compensation. We should be thankful that the CJEU was able to offer guidance to that effect even though the precise question posed could not be answered.

[1] Judgment of 31 May 2018, Wegener, C 537/17, EU:C:2018:361, paragraphs 18 and 19