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Boarding passes: Passengers 1 - EasyJet 0.

The European Court of Justice has decided that it is up to the airline to demonstrate that the passenger has not been transported to deny him the right to board.

The Eighth Chamber of the Court of Justice of the European Union (Case C-756/18 Rouland v Easyjet, 24 October 2019) has just delivered a crucial order in the context for a preliminary ruling from the a district Court in France.

The dispute: 3 hours late from Venice

Lucie Rouland and Alexandre Merah booked a flight from Venice to Paris on 10 February 2014 with EasyJet. They arrived 3 hours and 7 minutes late to their destination.

EasyJet refused to compensate them on the grounds that they did not produce boarding passes proving that they had checked in.

The preliminary question before the District Court in France

EasyJet rejected the passengers' claim for compensation on the basis that they could not prove that they boarded the flight so the passengers brought the claim before the Tribunal d'Instance d'Aulnay-sous-Bois, France, which decided to stay the proceedings and put the following question to the court:

Do passengers have to demonstrate their presence at check-in to be compensated for the delay in their flight?

If so, is there a simple presumption that the passenger's presence at check-in would be established?

No obligation to demonstrate their presence at registration

The Court held that passengers cannot be denied compensation simply because they did not prove their presence at check-in using the boarding pass.

The Court considered that the airline's requirement to require passengers to present a boarding pass was not appropriate to their situation:

‘Passengers who suffer a significant delay in their flight are thus able to benefit from their right to compensation without being subject to the requirement, inappropriate to their situation, of having to prove later, when making their claim for compensation, that they were present at the check-in of the delayed flight on which they were in any event transported.’

He added that the only case where the carrier can refuse compensation is if it can prove that the passengers did not board the flight.

In other words, it will now be up to the carrier to demonstrate that the passengers were not transported to their destination.

Proving a passenger did not board is on the carrier's shoulders

Airlines will therefore have to prove that passengers have not actually boarded their flight in order to refute compensation on this basis.

This will not pose any particular problem for them, given that in France, for example, airlines are required to keep a list of passengers who have boarded flights under the provisions of the Internal Security Code.

No reasonable doubt of force of decision

It is interesting to note that this reply by the Court was made on the basis of Article 99 of the French Court's Rules of Procedure, which provides that the Court may decide a dispute by order where the reply to be given leaves no room for reasonable doubt.

In other words, for the Court, the decision to place the burden of proof on the airline is obvious in view of the situation.

Cancelled flight and presence at check-in: bonus clarifications from the Court

The Court also recalled in Recital 26 that:

‘The requirement to check in does not extend to passengers in a flight cancellation situation.’

This means that if a flight is cancelled, passengers are under no obligation to check in for compensation.

The Court's clarification of the meaning of Article 3(2)(a) of Regulation 261/2004 is perfectly adapted to the practical considerations surrounding cancellations: when a flight is cancelled, passengers often decide to be refunded or are re-routed later, so requiring them to check in would only add to their prejudice.

It makes sense, but it's clearer when the court writes it in black and white.

29 October 2019

Written by Frédéric PELOUZE, Lawyer and graduate of Columbia University, NY USA.

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