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Aviation

When a passenger experiences denied boarding

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Legal news
calendar 20 July 2016
globus Denmark

The European Commission recently issued a notice containing guidelines for the interpretation of Regulation 261/2004. In the newsletters to come, we will – on the basis of the newly issued guidelines – focus on some of the issues we often see in our daily work. This time we will focus on the concept of “denied boarding”.

Denied boarding is defined as the situation in which the passenger is refused to board the airplane against his will. However, this scenario does not always constitute denied boarding pursuant to Regulation 261. In this newsletter we will elaborate on the concept of denied boarding with examples. In the conclusion we will round off with some general rules of thumb of how to conceive denied boarding.

Denied boarding
According to article 2(j) denied boarding means a refusal to carry passengers on a flight even though they have presented themselves for boarding. When a passenger has been denied boarding within the meaning of Regulation 261 the airline can no longer be exempted from paying compensation to passengers by invoking extraordinary circumstances.

However, it is not denied boarding within the meaning of Regulation 261 if the airline has reasonable grounds for refusing the passenger to board the plane. Therefore, in order for airlines to avoid claims for compensation or assistance in these cases they must prove that they had reasonable grounds for rejecting the passenger in question.

Reasonable grounds
The content of the motion of denied boarding pursuant to Regulation 261 mainly focuses on situations where airlines have overbooked the flight for financial reasons. However, the rule also covers situations where boarding is refused for other reasons. As mentioned in article 2(j), these reasons constitute health, safety or security reasons or inadequate travel documentation.

We have categorized the examples given in the guidelines below in order to create an overview of the various situations.

Two or more flights
When a passenger has purchased a round trip ticket and is refused boarding on the return flight because he did not show up for the outbound flight, this does not constitute denied boarding and the airline can in such cases reject the claim.

The same applies in the situation in which a passenger holds a reservation for two or more consecutive flights and is refused boarding on the connecting flight because he did not show up for one or more of the previous flights.

The terms and conditions linked to the ticket purchased and local airport rules will here also be relevant in relation to deciding the applicable deadlines that apply for when the passenger must show up.

However, if the outbound flight is cancelled by the airline and the passenger then rebooked on another outbound flight, it will constitute denied boarding if the passenger is refused boarding on the return flight. This is in contrast to the above mentioned situation where the passenger simply did not show up for the outbound/previous flight.

Another – also different scenario – is where the passenger has two separate tickets for two consecutive flights and if delay of the first flight results in the passenger being unable to check-in in time for the following flight and therefore claims to have experienced denied boarding for that flight, the connecting airline has no obligations under Regulation 261.

Rebooking
Rebooking in itself does not constitute denied boarding.

In regards to the situation involving connecting flights we have experienced cases in which airlines have rebooked passengers to other connecting flights because the incoming flight has been delayed. The airline usually detects the delay of the first flight and instantly rebooks the passenger.

In some cases the passengers from a delayed flight are all rebooked onto different connecting flights. Thus, all passengers from a delayed flight will be split apart and depart the airport of transfer at different times. Due to capacity reasons, it is unlikely that a flight of 200 passengers all fit into the same, rebooked flight which might already be 2/3 full. It is therefore necessary to split the passengers on to different departures.

A conflict is likely to arise in these situations, because the passengers who get a rebooking onto a flight with a later departure are put at a disadvantage and will most likely feel as if they have been “denied boarding” of the rebooked, connecting flight which departs earliest. However, is this denied boarding?

On both 1 and 2 July 2016 a judgment was handed down from a Swedish District Court which set this matter in stone. In both cases the passenger had booked one ticket for two consecutive flights. The first flight was delayed resulting in the passengers being unable to reach the second flight and they were therefore rebooked to other flights. In both cases the court found that this did not constitute denied boarding within the meaning of Regulation 261.

This is in line with the newly issued guidelines and it illustrates that rebooking itself and in situations of connecting flights do not constitute denied boarding within the meaning of Regulation 261.

Inadequate travel documentation
It does not constitute denied boarding if a passenger is travelling with a pet and the passenger is unable to present the relevant pet documentation and is therefore denied to proceed. This is also the case for passengers who are unable to present their own personal travel documents.

In contrast, if a passenger is refused boarding due to a mistake made by the ground staff when checking the travel documents, this constitutes denied boarding. However, if the refusal is because of security concerns based on reasonable grounds by the airline, it will probably not be conceived as denied boarding.

In the latter situation the European Commission advises airlines to make full use of IATA’s Timatic database and consult the relevant public authorities of the countries concerned in order to verify travel documents and visa requirements. Thus, if the airlines in these cases have checked the Timatic database and consulted with the public authorities, but a passenger nevertheless has been incorrectly refused boarding, the airline will most likely not be held liable for that mistake.

What can we conclude from the above?
It is important to note that when it comes to cases of denied boarding it is not a question of whether there are any extraordinary circumstances pursuant to Regulation 261. Instead it is essential to assess whether the refusal of boarding is based on the reasonable grounds mentioned in this newsletter. Four general rules can be deduced from the above:

  • In case of two or more flights in one booking the passenger may be refused to board the plane of the connecting or return flight if he or she did not show up for the previous or outbound flight.
  • Re-booking does not constitute denied boarding
  • Inadequate travel documents do not constitute denied boarding.
  • If the ground staff incorrectly refuses the passenger to board the plane it constitutes denied boarding.


[Official Journal of the European Union, C 214, 15 June 2016, page 5]

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Stay tuned
In the next period of time we will take a closer look on some of the most highlighted issues in the guidelines which the airlines face very often.

 

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