On 4 October 2012, the CJEU handed down judgments in two separate cases relating to the right to compensation for denied boarding; the Lassooy v. Finnair case and the Rodriguez v. Iberia case.

In the Lassooy v. Finnair case, Finnair had to cancel a flight on 28 July 2006 from Barcelona to Helsinki following a strike by staff at Barcelona airport. In order that the passengers on that flight should not have too long a waiting time, Finnair decided to reschedule subsequent flights. When Mr. Lassooy presented himself for boarding as per his booking on 30 October 2006, he was denied boarding because passengers from earlier flights affected as a knock-on from the earlier cancelled flight were given seats on Mr. Lassooy’s flight. The decision by Finnair to deny Mr. Lassooy boarding was an operational one, and not as a direct result of strike action.

The CJEU ruled that the concept of ‘denied boarding’ set out in Articles 2(j) and 4 of the Regulation does extend beyond cases of overbooking, and can be applied to cases where passengers are denied boarding for operational reasons. The CJEU also ruled that Finnair could not invoke the “extraordinary circumstances” defence in the case of a passenger offloaded from a flight which operated to schedule, or on which he had a confirmed booking, due to the preferential reaccommodation on that flight of passengers displaced because of cancellation to an earlier flight, as a result of the strike by airport personnel at Barcelona two days earlier.

The CJEU noted that the “extraordinary circumstances” defence does not actually exist in cases of denied boarding in the text of the Regulation, and may relate only to a particular aircraft on a particular day (which is in Recital 15 of the Regulation), which is not the case when boarding is denied because flights are rescheduled as a result of extraordinary circumstances affecting an earlier flight. It recognised that Finnair reallocated Mr. Lassooy’s seat and other seats on his flight so as to avoid the passengers affected by the flights cancelled on account of the strike having excessively long waiting times, but said that Finnair could not rely on the interests of other passengers and increase considerably the situations in which it would have reasonable grounds for denying boarding. Such an increase would necessarily have the consequence of depriving passengers on the subsequent flights of all protection, which would be contrary to the objective of Regulation 261.

However, the CJEU pointed out that their ruling does not and should not prevent airlines from seeking compensation from any person who has caused the denied boarding, including third parties, and that such compensation may reduce or even remove the financial burden borne by the airlines.

In the Rodriguez v. Iberia case, Mr. Rodriguez and another passenger bought tickets on Iberia for a journey from Corunna (Spain) to Santo Domingo. The tickets comprised two flights; Corunna – Madrid and Madrid – Santa Domingo. At the Iberia check-in counter at Corunna airport, the passengers checked their luggage in direct to their final destination, and were given two boarding cards for the two successive flights. The first flight was delayed by 1 hour 25 minutes, and in anticipation that the delay would result in the two passengers missing their connection in Madrid, Iberia cancelled their boarding cards for the second flight. In spite of the delay, on arrival in Madrid, the two passengers presented themselves at the departure gate in time for the final boarding call. The Iberia staff refused to allow the two passengers to board on the basis that their boarding cards had been cancelled and their seats allocated to other passengers. As a consequence, the two passengers did not reach their destination until some 27 hours later than planned.

The CJEU found that the denial of boarding was caused solely by the airline’s decision to cancel the boarding cards for the connecting flight, and that the airline had either caused the initial delay on the first leg or was mistaken in thinking the passengers would not make the connection. The CJEU held that the concept of “denied boarding” in Regulation 261 relates not only to cases of overbooking, but also to those arising from other grounds, such as operational reasons, and denying boarding on operational grounds is unjustified denied boarding not attributable to the passenger, which brings in to play the rights granted by the Regulation. It ruled that the circumstances of this case did not fall within “reasonable grounds” for denying boarding; the nonexhaustive list of grounds for denying boarding cannot include operational reasons such as occurred in this case.