In this blog post, Corinne Novell unpacks the CJEU’s recent preliminary ruling in M1.R. and M2.R. v AAA sp. z o.o. on the applicability of Regulation 261/2004 to flights booked as part of a package holiday.
M1.R and M2.R were holidaygoers who had booked a package holiday including a flight from Tenerife to Warsaw, operated by AAA, the air carrier. A contract for tickets on that flight had been drawn up between CCC sp. zo.o., on behalf of the passengers, and BBB. BBB then paid the price of those flights to AAA. The flight was delayed by over 22 hours, triggering a potential right to claim under Regulation 261/2004.
As readers will know, Regulation 261/2004 provides compensation and assistance for passengers in cases of denied boarding, cancellations, or long delays of flights. In order to have standing to bring a claim, passengers must have a confirmed reservation – meaning a ticket or ‘other proof’ – for the flight concerned and present themselves for check-in: Article 2(g) and Article 3(2). The Regulation does not apply where passengers are travelling free of charge or at a reduced fare not available to the public, though it does apply where passengers have tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator: Article 3(3).
M1.R and M2.R claimed for compensation, submitting copies of their boarding passes for the flight; AAA refused to pay compensation on the ground that they had not established they had a confirmed, paid reservation. AAA contended that the package tour had been paid for by CCC on preferential terms, so that those passengers travelled free of charge or at a reduced rate, excluding the right to compensation under the Regulation. The passengers argued that the air carrier had received payment from BBB, obtained from CCC, and that it was for the air carrier to establish that the passengers had travelled free of charge.
Proof of Reservation
The Court ruled that a boarding pass qualifies as ‘other proof’ under Article 2(g) of the regulation. A passenger holding a boarding pass is considered to have a ‘confirmed reservation’ under Article 3(2)(a), even if the boarding pass doesn’t include all usual details like the arrival time. Passengers with a boarding pass will ordinarily be deemed to have a confirmed reservation for a flight.
Reduced fare
The Court also addressed whether passengers traveling as part of a package tour, where the tour operator pays for the flight rather than the passenger directly, are excluded from the rights granted by the Regulation Passengers in such situations were found to still be entitled to compensation, as long as the price paid to the air carrier by the tour operator is in line with market conditions, and the passenger was not traveling free of charge or at a reduced fare not available to the public.
Importantly, the burden of proof for establishing whether a passenger travelled free of charge or at a reduced fare lies with the air carrier, not the passenger. It was stressed that this approach aligns with the high level of passenger protection intended by the Regulation; with the air carrier (who, perhaps unlike the passenger who has booked through a package tour, was involved in the payment process) having to prove any given exception applies rather than the other way around.
Practical effect
It would hardly be an international and travel blog post without asking what the effect of this decision is in our post-Brexit world. As our avid readers will know, following Lipton v BA Cityflyer [2024] UKSC 24, Regulation 261/2004 itself continues to apply, being deemed incorporated into UK law so as to have become retained UK law under s.3 of the EU (Withdrawal) Act 2018; UK courts are not bound by this (or any) CJEU decision in determining a claim visiting upon the Regulation’s applicability, but may have regard to it, under ss.6(1) and 6(2) of the 2018 Act. This decision therefore joins the raft of case law serving as persuasive though not binding authorities on the consumer protectionist intent of the Regulation.
