Order;Summary — ECLI:EU:C:2019:902
Date: 2019-10-24
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation C-756/18 — 1 
Case C-756/18 
Request for a preliminary ruling 
Date lodged: 
3 December 2018 
Referring court: 
Tribunal d’instance d’Aulnay-Sous-Bois (France) 
Date of the decision to refer: 
28 November 2018 
Applicants: 
LC 
MD 
Defendant: 
easyJet Airline Co. Ltd 
  
… 
FACTS, PROCEDURE AND CLAIMS 
... 
... LC AND MD made online reservations for a return journey Paris/Venice, 
departing from Charles de Gaulle airport, Paris (France) for Marco Polo airport 
(Venice) on 8 February 2014 and returning [on] 10 February 2014. They are 
challenging the non-payment, by the airline EASY JET AIRLINE COMPANY 
LIMITED, the operating carrier, of the fixed-rate compensation provided for by 
Regulation (EC) No 261/2004 of the European Parliament and of the Council of 
11 February 2004, claiming that the return flight [on] 10 February 2014 had 
arrived more than three hours late.  
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 11. 18 — CASE C-756/18 
 
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Consequently, … LC and MD brought an action before the court … … seeking an 
order requiring the air carrier to pay to each of them EUR 250 in respect of the 
fixed-rate compensation provided for in Article 7 of Regulation No 261/2004 … 
[plus related costs]. 
… 
At that hearing, LC and MD … asked the court primarily to stay the proceedings 
in order to refer to the Court of Justice of the European Union the issue of proving 
that they were present for boarding, [which] is not clarified by Regulation 
No 261/2004. The applicants maintain that possession of a boarding card cannot 
lead to the presumption that the passenger actually presented himself for check-in 
or boarded the aircraft. They state that Article 3 Regulation No 261/2004 does not 
give a definition of the concept of check-in. They state that there are clear rules of 
evidence concerning ʻconfirmed reservationʼ laid down by the regulation, unlike 
the concept of ʻpresentation for check-inʼ in the event of delay of an outbound 
flight. The [applicants] add that the Court of Justice of the European Union has 
intervened to lay down rules on flight delay, because only flight cancellation was 
initially covered by the regulation. The applicants maintain that the regulation 
adopted in 2004 does not take account of digital developments applicable to 
passenger check-in, including paperless ticketing, online check-in, and electronic 
tickets. They therefore claim that, given that Regulation (EC) No 261/2004 does 
not define the concept [of] presentation for check-in, or possible methods of 
proving it, a question should be referred to the Court of Justice of the European 
Union concerning the interpretation of Regulation (EC) No 261/2004. ... 
In reply, the company EASY JET AIRLINE COMPANY LIMITED … claimed 
that ... the document instituting the proceedings is invalid … [and] that the 
boarding cards had not been produced. It therefore opposes referring a question 
for a preliminary ruling, maintaining that the interpretation of the regulation is not 
in any doubt and that the Cour de Cassation (Court of Cassation) has stated that it 
is for passengers to produce boarding cards as proof of check-in. It requests that 
the claims be dismissed [and asks for related costs] … 
… 
GROUNDS FOR THE DECISION 
Invalidity [of the document instituting the proceedings] ... 
… [dismissal of the plea of invalidity] ... 
The legal framework applicable to the dispute in the main proceedings 
Regulation (EC) No 261/2004 of the European Parliament and of the Council of 
11 February 2004, applicable in the European Union, establishes common rules on 
EASYJET AIRLINE 
 
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compensation and assistance to passengers in the event of denied boarding and of 
cancellation or long delay of flights.  
The Court of Justice of the European Union has interpreted Articles 5, 6 and 7 of 
Regulation No 261/2004 (judgments of 19 November 2009, Sturgeon and Others, 
C-402/07 and C-432/07, EU:C:2009:716; and of 23 October 2012, Nelson and 
Others, C-581/10 and C-629/10, EU:C:2012:657), ruling that passengers whose 
flights are delayed are entitled to compensation under that regulation where they 
suffer, on account of such flights, a loss of time equal to or in excess of three 
hours, that is to say, when they reach their final destination three hours or more 
after the arrival time originally scheduled by the air carrier. Articles 5 
(cancellation), 6 (delay) and 7 (right to compensation) of that regulation are 
therefore to be interpreted as meaning that passengers whose flights are delayed 
may be treated as passengers whose flights are cancelled for the purposes of 
applying the right to compensation.  
… 
Under Article 3(2)(a) of the regulation, a passenger is any person who has a 
confirmed reservation and who presents himself (except in the case of cancellation 
as provided in Article 5) for check-in. Article 2(g) defines ʻreservationʼ as the fact 
that a passenger has a ticket, or other proof, which indicates that the reservation 
has been accepted and registered by the air carrier or tour operator. 
In the present case, LC and MD had reservations on a flight which the defendant 
company does not dispute was delayed. ... However, they did not have boarding 
cards and maintain that their flight on 10 February 2014 reached its destination 3 
hours and 7 minutes after the time originally scheduled. Their claim relates to the 
fixed-rate compensation under Article 7 of the regulation; it is disputed by the 
carrier owing to their failure to produce boarding cards.  
The legal question raised  
… 
… [existence of numerous similar cases concerning the methods of proving 
ʻpresentation for check-inʼ]. 
In a judgment of 14 February 2018 …, the Cour de cassation (Court of Cassation) 
upheld a judgment given by the tribunal d’instance d’Aulnay-sous-Bois (District 
Court, Aulnay-sous-Bois), dismissing a claim for fixed-rate compensation brought 
against an operating carrier on the basis of the regulation for a flight delay of more 
than three hours. In that case, the applicants produced only documentary evidence 
of online reservations and confirmation of delay that did not identify individuals.  
In a judgment of 12 September 2018 …, the Cour de cassation (Court of 
Cassation) upheld a judgment of the court of Aulnay-sous-Bois, dismissing a 
claim for fixed-rate compensation brought against an operating carrier on the basis 
REQUEST FOR A PRELIMINARY RULING OF 28. 11. 18 — CASE C-756/18 
 
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of the regulation for a flight delay of more than three hours, where the applicant 
only provided proof of online reservation together with several statements.  
In a judgment of 14 January 2016…, it set aside a judgment [holding] that the 
passenger had to adduce proof that the flight concerned had been cancelled or 
delayed, since the passenger had not produced any document showing the delay or 
cancellation of the flight at issue.  
The tribunal d’instance du 8ème arrondissement de Paris (the District Court of the 
8th arrondissement of Paris) ordered an operating air carrier to provide PNR 
(passenger name record) details in respect of the applicant passenger [in] a dispute 
concerning an alleged delay of more than three hours, by judgment of 30 May 
2018... Some district courts have delivered judgments to that effect, while others 
have taken the view that there is a reversal of the burden of proof. 
The court draws attention to the large volume of the disputes before it, which has 
significantly increased in recent years, [concerning] in particular… the evidence 
and the burden of proof that a passenger was present for check-in. Most operating 
carriers rely on the failure to produce a boarding card in order to refuse the fixed-
rate compensation provided for in Article 7 of the regulation where a flight is 
delayed for more than three hours, on the basis of the two judgments given by… 
the Cour de Cassation (Court of Cassation). The tribunal d’instance d’Aulnay-
sous-Bois (District Court, Aulnay-sous-Bois) was seised of 2 700 flight-related 
cases in 2017, and nearly 5 000 cases in the period between January and October 
2018…  
In the present case, EASY JET AIRLINE COMPANY LIMITED considers that 
the judgments … of the Cour de cassation (Court of Cassation) require passengers 
to hold boarding cards as evidence of check-in, and claim that it is necessary for 
passengers actually to have been present on board the aircraft. 
The applicants consider that the Cour de cassation (Court of Cassation) has 
misinterpreted the letter and spirit of Article 3 of the regulation, claiming that 
Regulation (EC) No 261/2004… defines neither the concept of ʻpresentation for 
check-inʼ nor the [related] method of proof or burden of proof. 
The dispute therefore concerns the interpretation of ʻpresentation for check-inʼ, 
and the method of proving presentation for check-in.  
The applicants maintain that, thanks to online reservations, passengers are now 
able to check in in ways other than physically presenting themselves at the 
company’s check-in desk in order to obtain [a] boarding card. They state that it is 
not possible for them to adduce evidence of check-in a posteriori, since the 
companies delete the data [relating to] boarding cards [issued] online or via their 
application, while the air carriers alone are in possession of passenger data. The 
applicants stress that nowadays passengers are permitted to check-in via the 
internet 30 days before the flight, without being physically present at a check-in 
EASYJET AIRLINE 
 
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desk, and without holding a boarding card. They claim that evidence a posteriori 
of the presence of passengers at the airport is impossible for passengers to adduce.  
The question referred for a preliminary ruling formulated by the applicants has 
been the subject of debate … before the district court. The defendant objects to the 
question, maintaining that no doubt may be raised concerning the interpretation of 
the regulation. It considers that the Cour de cassation (Court of Cassation), by its 
judgments of 14 February 2018 and 12 September 2018, requires passengers to 
produce boarding cards as evidence of their presence for check-in at the airport.  
In the light of the foregoing, in particular of technological and digital 
developments, of the burden of proof in the event of a flight delay of more than 
three hours, and of the fact that the regulation is silent on this point, the Court is 
asked to interpret the notion of ‘presentation for check-in’ contained in Regulation 
(EC) No 261/2004. 
… 
The question [s] referred for a preliminary ruling ... 
[formulation of the two questions set out below] … 
The other claims 
[stays the proceedings] ... 
ON THOSE GROUNDS 
The court … [refers] the following question[s] to the Court of Justice of the 
European Union:  
Is Article 3(2)(a) of 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 (‘Regulation 
No 261/2004’), to be interpreted as meaning that, in order to rely on the provisions 
of the regulation, passengers must prove that they presented themselves for check-
in?  
If so, does Article 3(2)(a) of Regulation No 261/2004 preclude a rule of simple 
presumption that the requirement that a passenger present himself for check-in 
may be regarded as satisfied if the passenger has a reservation that has been 
accepted and registered by the operating air carrier within the meaning of 
Article 2(g)? 
... 
[signatures]