# C_2019206EN.01003701.xml

| 17.6.2019 | EN | Official Journal of the European Union | C 206/37 |
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17.6.2019

EN

Official Journal of the European Union

C 206/37

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Request for a preliminary ruling from the Tribunal d’instance d’Aulnay-Sous-Bois (France) lodged on 5 April 2019 — JE, KF v XL Airways SA

(Case C-286/19)

(2019/C 206/42)

Language of the case: French

Referring court

Tribunal d’instance d’Aulnay-Sous-Bois

Parties to the main proceedings

Applicants: JE, KF

Defendant: XL Airways SA

Questions referred

| 1. | Whether both limbs of Article 3(2)(a) apply in the case of a delayed flight:






  (a) | Having regard to the fact that as the result of a case-law construct (judgment of 19 November 2009, Sturgeon, C-402/07 and C-432/07, EU:C:2009:716) the right to compensation that Article 7 of Regulation (EC) No 261/2004 of 11 February 2004 (1) establishes for denied boarding or cancellation was extended to include delayed flights, does the express condition that passengers must present themselves for check-in laid down in Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004, which applies only in the case of denied boarding, apply in the context of compensation claimed by a passenger who has not been denied boarding but whose flight has been delayed? |
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1.

Whether both limbs of Article 3(2)(a) apply in the case of a delayed flight:

(a)

Having regard to the fact that as the result of a case-law construct (judgment of 19 November 2009, Sturgeon, C-402/07 and C-432/07, EU:C:2009:716) the right to compensation that Article 7 of Regulation (EC) No 261/2004 of 11 February 2004 (1) establishes for denied boarding or cancellation was extended to include delayed flights, does the express condition that passengers must present themselves for check-in laid down in Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004, which applies only in the case of denied boarding, apply in the context of compensation claimed by a passenger who has not been denied boarding but whose flight has been delayed?

| (b) | If the answer to question 1(a) is in the affirmative, having regard to the objectives of the time limit laid down by Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 (‘not later than 45 minutes before the published departure time’) that relate to overbooked flights and security objectives, must that time limit be interpreted, in that case, as being ‘not later than 45 minutes before the new departure time of the delayed flight published on the airport information boards or communicated to passengers’? |
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(b)

If the answer to question 1(a) is in the affirmative, having regard to the objectives of the time limit laid down by Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 (‘not later than 45 minutes before the published departure time’) that relate to overbooked flights and security objectives, must that time limit be interpreted, in that case, as being ‘not later than 45 minutes before the new departure time of the delayed flight published on the airport information boards or communicated to passengers’?

| 2. | The burden of proving ‘presentation at check-in’
  If the answer to question 1(a) is in the affirmative, that is to say, if Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 does apply to compensation applied for by a passenger whose flight has been delayed:






  (a) | Are the conditions established in Article 3(2)(a) preconditions that the consumer must prove have been satisfied in order for the regulation to apply, or grounds for exonerating the airline by allowing it to produce the passenger list in order to show that the consumer did not present him or herself for check-in “as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time” to which Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 refers, in the light of technological developments that now allow boarding cards to be issued electronically, the absence of any time stamp on paper boarding cards, the correlative absence of any obligation for passengers to present themselves physically at a check-in counter and the fact that the airlines alone hold all the information about passenger check-in until check-in operations are closed? |
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2.

The burden of proving ‘presentation at check-in’

If the answer to question 1(a) is in the affirmative, that is to say, if Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 does apply to compensation applied for by a passenger whose flight has been delayed:

(a)

Are the conditions established in Article 3(2)(a) preconditions that the consumer must prove have been satisfied in order for the regulation to apply, or grounds for exonerating the airline by allowing it to produce the passenger list in order to show that the consumer did not present him or herself for check-in “as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time” to which Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 refers, in the light of technological developments that now allow boarding cards to be issued electronically, the absence of any time stamp on paper boarding cards, the correlative absence of any obligation for passengers to present themselves physically at a check-in counter and the fact that the airlines alone hold all the information about passenger check-in until check-in operations are closed?

| (b) | Do the principle of effectiveness, the objectives of Regulation (EC) No 261/2004 of 11 February 2004 and the high level of protection of passengers and consumers in general guaranteed by Regulation (EC) No 261/2004 of 11 February 2004 or other provisions of Community law preclude placing exclusively on passengers alone the burden of proving that they presented themselves for check-in ‘as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time’ to which Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 refers, in the light of technological developments that now allow boarding cards to be issued electronically, the absence of any time stamp on paper boarding cards, the correlative absence of any obligation for passengers to present themselves physically at a check-in counter and the fact that the airlines alone hold all the information about passenger check-in until check-in operations are closed? |
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(b)

Do the principle of effectiveness, the objectives of Regulation (EC) No 261/2004 of 11 February 2004 and the high level of protection of passengers and consumers in general guaranteed by Regulation (EC) No 261/2004 of 11 February 2004 or other provisions of Community law preclude placing exclusively on passengers alone the burden of proving that they presented themselves for check-in ‘as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time’ to which Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 refers, in the light of technological developments that now allow boarding cards to be issued electronically, the absence of any time stamp on paper boarding cards, the correlative absence of any obligation for passengers to present themselves physically at a check-in counter and the fact that the airlines alone hold all the information about passenger check-in until check-in operations are closed?

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(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

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