Opinion of the Advocate General — ECLI:EU:C:2019:1003
Date: 2019-11-21
Language of the case: Greek
Subject matter: Transport;Area of freedom, security and justice;Judicial cooperation in civil matters;Border checks
Procedure: Reference for a preliminary ruling
Origin: Cyprus

Summary C-584/18 - 1 
Case C-584/18 
Summary of request for a preliminary ruling under Article 98(1) of the 
Court’s Rules of Procedure 
Date lodged: 
19 September 2018 
Referring court: 
Eparchiako Dikastirio Larnakas (District Court, Larnaca) (Cyprus) 
Date of the decision to refer: 
3 September 2018 
Applicant:  
D. Z. 
Defendant:  
Blue Air - Airline Management Solutions SRL 
      
Subject-matter of the main proceedings 
Area of freedom, security and justice – Regulation (EU) 2016/399 on a Union 
Code on the rules governing the movement of persons across borders (Schengen 
Borders Code) – Entry requirements for third country nationals – Regulation (EC) 
No 539/2001 – Visa requirement when crossing the external borders of the 
Member States – Decision No 565/2014/EU introducing a simplified regime for 
the control of persons at the external borders based on the unilateral recognition 
by Bulgaria, Croatia, Cyprus and Romania of certain documents as equivalent to 
their national visas – Kazakhstan national in possession of a temporary residence 
permit issued by Cyprus wishing to travel to Romania – Denied boarding by air 
carrier – Regulation (EC) No 261/2004 – Right to compensation 
Subject-matter and legal basis of the reference for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
EN 
REQUEST FOR A PRELIMINARY RULING – CASE C-584/18 
 
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Questions referred 
1. Should Decision No 565/2014/EU be interpreted as producing direct legal 
effect in the form, on the one hand, of the right of a third country national 
without being requiring to have a visa to enter the Member State of 
destination and, on the other hand, an obligation on that Member State of 
destination not to require him to have such a visa where that national is in 
possession of a visa or residence permit included in the list of visas and 
residence permits recognised on the basis of Decision No 565/2014/EU, 
which the Member State of destination has undertaken to apply? 
2. Where an air carrier directly and/or through its authorised and designated 
representatives at the airport of the Member State of departure denies 
boarding to a passenger, giving as its reason that the authorities of the 
Member State of destination have refused him entry to that State because he 
allegedly has no entry visa, can the air carrier be considered as exercising 
powers and acting as an emanation of that State, such that Decision 
No 565/2014/EU can be cited against it by the passenger concerned before 
the courts of the Member State of departure in order to prove that he had a 
right of entry without requiring an additional visa and to claim compensation 
for infringement of that right and, by extension, of his contract of carriage? 
3. Can an air carrier directly and/or through its authorised and designated 
representatives rely upon a decision by the authorities of the Member State 
refusing a third country national entry to the territory of that State in order to 
deny that national boarding, without first issuing and/or giving him a written 
substantiated decision with respect to the refusal of entry (see Article 14(2) 
of Regulation (EC) No 2016/399, previously Article 13 of Regulation (EC) 
No 562/2006, which requires a substantiated decision stating the reasons for 
refusal of entry), in order to safeguard respect for the fundamental rights 
and, in particular, legal protection of the rights of the passenger concerned 
(see Article 4 of that Regulation)? 
4. Does Article 2(j) of Regulation (EC) No 261/2004 mean that cases of denied 
boarding are exempt from its scope whenever boarding is denied by decision 
of the air carrier due to alleged ‘inadequate travel documentation’? Should it 
be interpreted to mean that denied boarding does fall within the scope of the 
Regulation where a court finds, based on the particular circumstances of 
each specific case, that the travel documentation was adequate and that the 
denial of boarding was unsubstantiated or unlawful in that it infringed EU 
law? 
5. Can a passenger be deprived of the right to compensation granted under 
Article 4(3) of Regulation (EC) No 261/2004 where the air carrier relies 
upon a clause precluding or limiting its liability in the event of allegedly 
inadequate travel documentation, where such a clause is included in the 
standard terms, published in advance, governing the operation of and/or 
D. Z. 
 
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provision of services by the air carrier? Does Article 15, read in combination 
with Article 14, of that Regulation prevent the application of such clauses 
precluding and/or refusing the air carrier’s liability?  
Provisions of EU law cited 
Treaty on the Functioning of the European Union, Articles 77 and 288 
Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third 
countries whose nationals must be in possession of visas when crossing the 
external borders and those whose nationals are exempt from that requirement (OJ 
2001 L 81, p. 1), Recital 12, Article 1(1) to (3), Article 2  
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), Article 1, 
Article 2(j), Article 3(1), (2) and (5), Article 4(3), Article 14, Article 15 
Regulation (EC) No 562/2006 of the European Parliament and of the Council of 
15 March 2006 establishing a Community Code on the rules governing the 
movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, 
p. 1), Article 13 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 
March 2016 on a Union Code on the rules governing the movement of persons 
across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1), Article 2, Article 3, 
Article 4, Article 6(1), Article 8(3), Article 14 
Decision No 565/2014/EU of the European Parliament and of the Council of 15 
May 2014 introducing a simplified regime for the control of persons at the 
external borders based on the unilateral recognition by Bulgaria, Croatia, Cyprus 
and Romania of certain documents as equivalent to their national visas for transit 
through or intended stays on their territories not exceeding 90 days in any 180-day 
period and repealing Decisions No 895/2006/EC and No 582/2008/EC (OJ 2014 L 
157, p. 23), Articles 1 to 8, Annex III 
Information from the Commission about notifications by the Member States of 
decisions concerning the application of Decision No 565/2014/EU of the 
European Parliament and of the Council (2014/C 302/01) (OJ 2014 C 302, p. 1) 
Case-law of the Court cited 
Judgment of 6 October 1970, Grad, 9/70, EU:C:1970:78. 
Judgment of 26 February 1986, Marshall, 152/84, EU:C:1986:84. 
REQUEST FOR A PRELIMINARY RULING – CASE C-584/18 
 
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Judgment of 12 July 1990, Foster and Others, C-188/89, EU:C:1990:313. 
Judgment of 17 January 2013, Zakaria, C-23/12, EU:C:2013:24;  
Brief summary of the facts and proceedings 
1 The applicant, D.Z., is a national of a third country (Kazakhstan). The defendant, 
Blue Air, is a Romanian air carrier registered as a foreign company in Cyprus.  
2 The material time for the present case is 6 September 2015, the date on which the 
applicant was denied boarding on a defendant’s flight from Larnaca Airport to 
Bucharest Airport scheduled for that date, on which the applicant had a confirmed 
seat reservation. 
3 The applicant was due to stay in Bucharest from 6 September 2015 to 12 
September 2015, the date of his scheduled return flight from Bucharest to Larnaca 
with a different air carrier. The purpose of the applicant’s trip was to sit two 
examinations of the Association of Chartered Certified Accountants (ACCA) 
being held at an examination centre in Bucharest on 7 September 2015. 
4 At the material time, Cyprus and Romania had not acceded fully to the Schengen 
Area, in that the Council had not yet adopted a decision finding that those 
Member States fulfilled all the requirements for the implementation of all aspects 
of the relevant acquis. Therefore, border controls at their external borders, which 
included the airports in those two States, had not been abolished. 
5 At the material time, the applicant was not in possession of a visa issued by the 
Romanian authorities permitting him entry to Romania. However, at that time, the 
applicant did hold a temporary residence permit allowing him to stay on the 
territory of the Republic of Cyprus, issued in Nicosia on 15 June 2015 and valid 
until 6 April 2016.  
6 Before his scheduled departure date for Romania, the applicant had applied online 
for a Romanian entry visa via the website of the Romanian Ministry of Foreign 
Affairs. In reply to the related questions, the applicant stated that he fell under the 
following category: ‘I hold a short-stay issued by Bulgaria, Cyprus or Croatia’. 
Decision No 565/2014/EU was in force and was being applied by both Cyprus and 
Romania when the applicant submitted his application.  
7 Based on his statement that he held a short-stay residence permit issued by 
Cyprus, the Romanian Ministry of Foreign Affairs replied that he did not require 
an entry visa for Romania, as his intended stay would not exceed 90 days in any 
180-day period. 
8 On 6 September 2015 the applicant arrived at the airport and presented his travel 
documentation at check-in to the staff of the private company acting as Blue Air’s 
handling agent in Cyprus. Together with his passport and temporary resident 
D. Z. 
 
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permit issued by Cyprus, the applicant presented the application for a Romanian 
entry visa which he had made and the reply which he had received online. The 
staff of that company forwarded those documents to a member of staff of Blue 
Air’s ground control at Bucharest Airport, which replied as follows: ‘I am sorry 
but they said that without a visa or a family member residence card, he can't enter 
Romania’. 
9 Accordingly, it was decided to deny boarding to the applicant, in part because his 
carriage would be unlawful and would expose the defendant to criminal and 
administrative penalties. The applicant reacted by demanding the reasons for 
denied boarding in writing, but he never received any. Nor was he given any 
written substantiated decision by the Romanian authorities refusing him entry to 
Romania. 
10 As his efforts to an out-of-court settlement of the dispute failed, the applicant 
brought the action under consideration. 
The principal arguments of the parties to the main proceedings 
11 The applicant argues that, even though he had all the necessary travel 
documentation in keeping with Decision No 565/2014/EU and had been advised 
by the Romanian Ministry of Foreign Affairs that he did not require an entry visa 
for that State, he was denied boarding on the defendant’s aircraft without any 
explanation, without due warning, as a result of negligence and ignoring the 
provisions of that decision, unlawfully and/or in breach of contract.  
12 The applicant is seeking compensation before the referring court for the lost cost 
of his return ticket, the cancellation fee for the hotel reservation in Bucharest, the 
entry fees for the examinations which he did not sit because he was unable to 
travel to Bucharest, the sum in wages not paid by his employer because he had 
requested and taken study leave in order to prepare for the examinations he was 
due to sit in Bucharest, and compensation for the non-financial damages which he 
sustained because his preparations for the examinations were wasted and he 
needed to prepare again to sit similar examinations on a different date. 
13 The defendant contends that it was the applicant’s responsibility to obtain any 
entry visa required under laws or regulations, that he knew or should have known 
that he required a visa to enter Romania, that the Romanian authorities had powers 
of discretion to refuse him entry to Romania if he did not have a visa, and that the 
defendant bears no liability for refusal of entry. The travel conditions published on 
the air carrier’s website in connection with travel documentation produced for 
check-in and embarkation expressly state that the airline bears no liability if the 
authorities of the Member State of destination refuse the passenger entry to the 
country, or for the documentation which the passenger is required to have, or for 
the application of the laws, rules or instructions of the State of destination. 
REQUEST FOR A PRELIMINARY RULING – CASE C-584/18 
 
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Brief summary of the basis for the reference 
14 The referring court is of the opinion that, although on the basis of Regulation 
No 539/2001 nationals of third countries, including Kazakhstan, require a visa, 
both Cyprus and Romania, which have applied Decision No 565/2014 since 6 
September 2014 and will continue to do so pending their full implementation of 
all aspects of the Schengen acquis, have undertaken by notification to the 
European Commission to recognise as equivalent to their national visas for transit 
through their territories or for intended stays on their territories which do not 
exceed 90 days in any 180-day period the visas and/or residence permits listed in 
Annex III to Decision No 565/2014, which include the temporary residence permit 
issued to the applicant, a Kazakhstan national, by the Cypriot authorities. 
15 In the above circumstances and given that neither Cyprus nor Romania has 
notified the European Commission of any exemption from Decision No 565/2014 
in respect of the visas and residence permits attached to travel documentation 
issued by Kazakhstan, the referring court finds that the applicant was entitled at 
the material time to rely upon the notification given by those two Member States 
concerning the application of Decision No 565/2014 and on Article 3(2) of the 
Decision, read in combination with Annex III to the Decision, and thus assume 
that the temporary residence permit issued to him in Cyprus would be recognised. 
16 As regards Questions 1 to 3, the issue that concerns the referring court is whether 
Decision No 565/2014 produces direct legal effect which the applicant is entitled 
to rely upon horizontally before the referring court in order to claim an actionable 
right against a private individual (the air carrier) for the losses which he sustained 
due to infringement of the provisions of that decision and, by extension, for 
infringement of the contract of carriage. 
17 It follows from Article 288 TFEU and the relevant case-law of the Court that the 
provisions of a decision addressed to the Member States cannot produce direct 
legal effect horizontally, i.e. they cannot be cited by one private individual against 
another private individual for the purpose of imposing an obligation on the other 
private individual, as its provisions impose obligations on the States to which they 
are addressed, not on private individuals. Therefore, the issue that must be 
considered in each particular case is whether the defendant acted as a ‘private 
individual’ or as a ‘State’ to which the decision was addressed. If, as a private 
individual, the defendant acted in the exercise of powers vested in it by the State 
for the purpose of providing a public mission or public service controlled by the 
State, then its provisions imposing an obligation can be relied upon directly. 
Further, in order for the provisions of a decision to produce direct effect, they 
must be sufficiently clear and unconditional in terms of their content. It is 
necessary to check if the provision allows a number of derogations, the details of 
which need to be stipulated by the Member States, and/or if their wording is 
unclear and subsequent implementing measures therefore need to be taken. 
D. Z. 
 
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18 Decision No 565/2014 does not appear to impose an obligation on the Member 
States, rather an option to derogate from the provisions of a regulation introducing 
a simplified visa regime. However, it is clear that the Member States to which that 
decision is addressed have exercised their discretion and stipulated derogations 
from the stricter framework of Regulation No 539/2001; in other words, they have 
undertaken to be bound by the result sought by the decision by publishing that 
undertaking in the Official Journal of the European Union. 
19 In light of that undertaking, the referring court is of the opinion that, had the 
applicant been allowed to board the flight and land on Romanian territory, he 
would be able to rely directly before a Romanian court upon his right of entry to 
that country pursuant to Decision No 565/2014. However, at no time did the 
applicant have to deal with a decision of the Romanian administrative authorities 
refusing him entry to the country, as he was never allowed to land there for the 
purpose of undergoing controls by the Romanian administrative authorities based 
on the laws of that country. Nor did the defendant or its representatives give or 
notify him of any written substantiated decision by the Romanian authorities 
refusing him entry to Romania. In fact, in this case, the only harmful act which the 
applicant suffered was being denied boarding on the defendant’s aircraft. That is 
why he has taken action in the civil courts in Cyprus in order to prove that, in the 
circumstances, denied boarding infringed the contract of carriage and/or was 
unlawful. 
20 As regards Questions 4 and 5, the issue of concern to the referring court is 
whether, under the circumstances of this particular case, the decision qualifies as 
‘denied boarding’ within the meaning of Regulation No 261/2004, which would 
give rise to an actionable right for payment of compensation to the applicant by 
the air carrier that operated the flight at issue by which he would have travelled to 
Bucharest.