FW v LATAM Airlines Group SA.

JurisdictionEuropean Union
Date26 October 2023
Docket NumberC-238/22
Celex Number62022CJ0238
CourtCourt of Justice (European Union)

Provisional text


26 October 2023 (*)

(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 2(j) – Article 3 – Article 4(3) – Compensation of air passengers in the event of denied boarding – Passenger informed in advance that boarding would be denied – No obligation for the passenger to present him or herself for boarding – Article 5(1)(c) – Exceptions to the right to compensation in the event of a flight cancellation – Inapplicability of those exceptions in the event of a pre-emptive denial of boarding)

In Case C‑238/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany), made by decision of 21 February 2022, received at the Court on 5 April 2022, in the proceedings



LATAM Airlines Group SA,

THE COURT (Eighth Chamber),

composed of N. Piçarra, President of the Chamber, M. Safjan and M. Gavalec (Rapporteur), Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– FW, by H. Hopperdietzel, Rechtsanwalt,

– LATAM Airlines Group SA, by S. Wassmer, Rechtsanwalt,

– the German Government, by J. Möller, P. Busche and M. Hellmann, acting as Agents,

– the European Commission, by G. Braun, G. Wilms and N. Yerrell, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following


1 This request for a preliminary ruling concerns the interpretation of Article 2(j), Article 3(2), Article 4(3), Article 5(1)(c)(i) and Article 7 of 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 (OJ 2004 L 46, p. 1).

2 The request has been made in proceedings between FW and LATAM Airlines Group SA (‘Latam Airlines’) concerning a claim for compensation made by FW on the basis of Regulation No 261/2004 after Latam Airlines barred her from a flight which was due to be operated between Madrid (Spain) and Frankfurt am Main (Germany).

Legal context

3 Recitals 1 to 4 and 9 of Regulation No 261/2004 are worded as follows:

‘(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

(2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.

(3) While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport [(OJ 1991 L 36, p. 5)] created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays.

(4) The Community should 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.

(9) The number 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.’

4 Article 2 of Regulation No 261/2004, entitled ‘Definitions’, provides, under points (j) and (l):

‘For the purposes of this Regulation:

(j) “denied boarding” means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

(l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’

5 Paragraphs (1) and (2) of Article 3 of that regulation, entitled ‘Scope’, are worded as follows:

‘1. This Regulation shall apply:

(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

2. Paragraph 1 shall apply on the condition that passengers:

(a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,

– as stipulated and at the time indicated in advance and in writing (including by electronic means) 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; or

(b) have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.’

6 Under Article 4 of that regulation, entitled ‘Denied boarding’:

‘1. 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.

2. 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.

3. 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.’

7 Article 5 of Regulation No 261/2004, entitled ‘Cancellation’, provides in paragraph 1(c) thereof:

‘In case of cancellation of a flight, the passengers concerned shall:

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.’

8 Article 7 of that regulation, entitled ‘Right to compensation’, provides:

‘1. Where reference is made to this Article, passengers shall receive compensation amounting to:

(a) EUR 250 for all flights of 1 500 kilometres or less;

(b) EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;

(c) EUR 600 for all flights not falling under (a) or (b).

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger's arrival after the scheduled time.

4. The distances given in paragraphs 1 and 2 shall be measured by the great circle route method.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9 FW booked a return flight with Latam Airlines between Frankfurt am Main and Madrid. The outward flight was scheduled for 22 December 2017 and the return flight for 7 January 2018.

10 Finding it impossible to check-in online for the outward flight on 21 December 2017, FW contacted Latam Airlines. The latter then informed her that it had, unilaterally and without informing her in advance, amended her reservation to transfer her to an earlier flight, which was to be operated on 20 December 2017. In the course of that communication, Latam Airlines also informed FW that she had been barred from the return flight on 7 January 2018, on the ground that she had not taken the outward flight.

11 As a result, FW reserved both an outward flight and a return flight with another air carrier and paid EUR 528.23 for the corresponding tickets. Prior to the initiation of the action in the main proceedings, Latam Airlines had nevertheless refunded her EUR 101.55.

12 By a judgment of 2 September 2021, the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main, Germany) ordered Latam Airlines to pay FW a sum of EUR 426.68 by way of damages, corresponding to the remainder of the price of those tickets plus EUR 250 compensation under Articles 5 and 7 of Regulation No 261/2004. That court held that the amendment of the reservation of the outward flight to be operated by Latam Airlines was to be deemed a cancellation. That judgment is final in that regard.

13 On the other hand, that court dismissed FW’s claim seeking additional compensation of EUR 250 on account of...

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