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Compensation: passengers will no longer have to prove their presence on the aircraft

Friday, November 1, 2019

A major ruling considered to be a major step forward for air passenger rights has recently been communicated by the European Court of Justice. On Thursday 24th October, an order of the European Court of Justice ruled that air passengers arriving at their destination more than three hours late no longer have to prove that they have boarded an aeroplane in order to claim their compensation.

Quick recap: on 14th February 2018, the French Court of Cassation, which is the highest court in the French judicial system, issued a surprising decision concerning passengers who had experienced delayed flights. These passengers previously had to prove their presence on board of the disrupted flight with a boarding pass, otherwise they would not be entitled to compensation.

A first decision in favour of airlines

On the 26th July 2014, two French passengers claimed €600 in compensation, per person, after a five-hour delay from the French airline XL Airways, under Regulation (EC) No 261/2004. They were denied compensation on the grounds of their inability to provide proof of their presence onboard the aircraft.

Going as far as taking legal action to have their rights respected, they presented various documents to the court. These included a non-nominative certificate of delay as well as electronic tickets. However, this proved insufficient for the airline and the court, which ruled that it did not prove the presence on board of passengers.

Why prove your presence on a plane?

Such proof is required because Regulation EC 261/2004 does not grant compensation to passengers that haven’t completed their flight schedule. This obligation is mentioned in Article 3: "provided that passengers: (a) have a confirmed reservation for the flight concerned and present themselves (...) at check-in".

Indeed, the law states that a passenger who does not wish to take a flight because of its delay, or for any other reason, may decide to terminate his contract with the airline. If the passenger no longer has a contract with the airline, then the airline is no longer obliged to pay compensation.

How airlines avoid paying compensation

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Whilst airlines have measures to prove the presence of a passenger onboard their aircraft, they often have no interest in doing so when it comes to compensating passengers for flight delays. The decision of the Court of Cassation made the situation unreasonable by forcing passengers to prove before the courts that they had indeed taken the flight they had booked. Passengers get rid of paper boarding passengers after a flight and electronic ones may disappear automatically which often makes it impossible for passengers to still provide such documents.

As a result of this decision, a large proportion of airlines began to ‘require’ this document, significantly reducing their obligation to pay compensation to passengers whose flights were delayed. At our experts use several techniques to prove the presence of a passenger onboard an aircraft, which unfortunately takes time and inevitably postpones the time required to obtain compensation.

A new jurisprudence in favour of passengers

While airlines have been able to rely on this interpretation of European regulations, the rules of the game have changed. On the 24th October 2019, the European Court of Justice issued its decision: passengers do not have to prove their presence at check-in to obtain compensation under EC Regulation No 261/2004.

The authority decided on "reasoned order" and stated that "such a conclusion is corroborated by the objective, set out in recital 1 of the Regulation, which aims to ensure a high level of protection for passengers". It adds that "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, to have to prove later (...) that they were present at the check-in of the delayed flight".

This decision represents a major change for air passenger rights and will unblock thousands of cases aborted by this case law. Airlines, for their part, will stop asking passengers for more and more documents for the sole purpose of avoiding their compensation obligations.

Delayed flight without a boarding pass?

If you have had a delayed flight in the last six years, it's time to claim your compensation! Whether or not you have your boarding pass, you may be entitled to compensation when flying to or from France. With our online calculator, you can check if you are entitled to compensation and/or refund from the airline. Once you have entered your flight data, our team will do the rest. The icing on the cake: you only pay if we succeed!

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