OPINION OF ADVOCATE GENERAL

BOT

delivered on 19 April 2012 ( 1 )

Case C-22/11

Finnair Oyj

v

Timy Lassooy

(Reference for a preliminary ruling from the Korkein oikeus (Finland))

‛Air transport — Regulation (EC) No 261/2004 — Compensation for passengers in the event of denied boarding — Concept of ‘denied boarding’ — Exclusion from characterisation as denied boarding — Cancellation of a flight caused by a strike in the State of departure — Rescheduling of flights after the cancelled flight — Right to compensation of the passengers on those flights’

1. By this reference for a preliminary ruling, the Court is prompted for the first time to interpret the concept of ‘denied boarding’ within the meaning of Article 2(j) of Regulation (EC) No 261/2004. ( 2 ) That provision defines ‘denied boarding’ as a refusal to carry passengers on a flight, although they have presented themselves for boarding, except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation. Where a passenger is denied boarding against his will, he is entitled, under Article 4(3) of Regulation No 261/2004, to flat-rate compensation.

2. This case arises out of a dispute between the airline Finnair Oyj ( 3 ) and Mr Lassooy. Mr Lassooy had reserved a seat on the 11.40 flight from Barcelona to Helsinki on 30 July 2006. Following a strike at Barcelona (Spain) Airport on 28 July 2006, Finnair decided to reschedule its flights scheduled for 28, 29 and 30 July 2006 and denied Mr Lassooy boarding, giving priority, on the flight which he should have taken, to the passengers who were unable to board the scheduled flight of 29 July 2006 following that strike. Mr Lassooy now invokes Article 4(3) of Regulation No 261/2004 and considers that Finnair should pay him compensation in accordance with that provision.

3. The Korkein oikeus (Supreme Court, Finland) wonders whether the concept of ‘denied boarding’, within the meaning of Article 2(j) of Regulation No 261/2004, covers only denied boarding caused by overbooking or whether it also includes other situations, such as denied boarding owing to rescheduling of flights as a result of extraordinary circumstances.

4. Moreover, the national court raises the question whether characterisation as ‘denied boarding’ may be precluded on grounds other than those relating to passengers, inter alia on grounds relating to extraordinary circumstances.

5. In this opinion, I shall state the reasons why I think that the concept of denied boarding includes not only cases of overbooking but also other grounds, such as operational reasons.

6. I shall then explain why, in my view, Articles 2(j) and 4 of Regulation No 261/2004 are to be interpreted as meaning that denied boarding cannot reasonably be justified by extraordinary circumstances, since only denied boarding of passengers justified on grounds relating to the individual circumstances of those passengers may have the effect of excluding that denial from characterisation as ‘denied boarding’. Similarly, I shall set out the reasons why I take the view that Articles 4(3) and 5(3) of that regulation are to be interpreted as meaning that an operating air carrier cannot rely on extraordinary circumstances having affected a flight in order to be exempt from its obligation to compensate a passenger to whom it has denied boarding on a later flight where it justifies that denial by the rescheduling of that flight as a result of those extraordinary circumstances.

7. Finally, I shall state why, in my view, such an interpretation does not come into conflict with the principle of equal treatment.

I – Legal framework

8. Recital 1 in the preamble to Regulation No 261/2004 states that action by the European Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers.

9. Recital 14 in the preamble to that regulation provides that obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.

10. Under Article 2(j) of the regulation, ‘denied boarding’ means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation.

11. Article 4 of Regulation No 261/2004 is worded as follows: ‘1. When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier. Volunteers shall be assisted in accordance with Article 8, such assistance being additional to the benefits mentioned in this paragraph. 2. If an insufficient number of volunteers comes forward to allow the remaining passengers with reservations to board the flight, the operating air carrier may then deny boarding to passengers against their will. 3. If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 and assist them in accordance with Articles 8 and 9.’

12. Under Article 5(3) of that regulation, the operating air carrier is not obliged to pay the compensation usually due in the event of a flight cancellation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

13. Article 7(1)(b) of that regulation, read in conjunction with Article 4 thereof, provides for compensation of EUR 400 for passengers who are denied boarding for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres.

14. Articles 8 and 9 of Regulation No 261/2004, read in conjunction with Article 4 thereof, provides a right to reimbursement or re-routing and a right to care for passengers who are denied boarding.

II – The facts and the main proceedings

15. Following a strike by staff at Barcelona Airport on 28 July 2006, the scheduled 11.40 flight from Barcelona to Helsinki operated by Finnair had to be cancelled. Finnair decided to reschedule its flights in order that the passengers on that flight should not have too long a waiting time.

16. Accordingly, those passengers were taken to Helsinki (Finland) on the 11.40 flight the following day, 29 July 2006, and on a specially arranged flight departing at 21.40. The consequence of that rescheduling was that some of the passengers who had bought their tickets for the 11.40 flight on 29 July 2006 had to wait until 30 July 2006 to go to Helsinki on the scheduled 11.40 flight and on a 21.40 flight which was also specially arranged for the occasion. Similarly, some passengers, like Mr Lassooy, who had bought their tickets for the 11.40 flight on 30 July 2006 and who had duly presented themselves for boarding, went to Helsinki on the special 21.40 flight.

17. Mr Lassooy, taking the view that Finnair had denied him boarding, within the meaning of Article 4 of Regulation No 261/2004, brought an action before the Helsingin käräjäoikeus (Helsinki District Court) for an order against Finnair to pay him the compensation provided for in Article 7(1)(b) of that regulation.

18. By decision of 19 December 2008, the Helsingin käräjäoikeus dismissed the action brought by Mr Lassooy on the ground that that regulation concerned only compensation for passengers denied boarding owing to overbooking for economic reasons. That court held that Article 4 of Regulation No 261/2004 did not apply, because the flights had been rescheduled. It considered that Mr Lassooy’s flight had been cancelled, although that flight had actually taken place.

19. Mr Lassooy brought an appeal before the Helsingin hovioikeus (Helsinki Court of Appeal). By judgment pronounced on 31 August 2009, the court held that Finnair had denied boarding to Mr Lassooy against his will. It considered that the flight had not been cancelled, because the plane left at the time mentioned in Mr Lassooy’s booking confirmation with the same identification information as that used in that confirmation. The Helsingin hovioikeus concluded both from the wording of Regulation No 261/2004 and from the travaux préparatoires that that regulation applied not only to overbooking but also to operational reasons for denied boarding. Finnair is therefore not exempt from liability to pay compensation for reasons connected with a strike and is required to compensate Mr Lassooy in accordance with Article 7 of that regulation. The Helsingin hovioikeus set aside the decision of 19 December 2008 and ordered Finnair to pay EUR 400 plus interest.

20. Finnair brought an appeal before the Korkein oikeus. That court has doubts as to the interpretation to be given to the provisions of Regulation No 261/2004. It therefore decided to stay the proceedings and to refer several questions to the Court of Justice for a preliminary ruling.

III – The questions referred for a preliminary ruling

21. The Korkein oikeus has referred the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Regulation No 261/2004 and in particular Article 4 thereof to be interpreted as meaning that its application is limited only to cases where boarding is denied because of overbooking by [an] air carrier for economic reasons, or is [that] regulation applicable also to situations in which boarding is denied for other reasons, such as operational reasons? (2) Is Article 2(j) of [Regulation No 261/2004] to be interpreted as meaning that the reasonable grounds laid down therein are limited only to factors relating to passengers, or may a denial of boarding be reasonable on other grounds? If [that] regulation is to be interpreted as meaning that a denial of boarding may be reasonable on grounds other than those relating to passengers, is it to be interpreted as meaning that such a denial may also be reasonable on the grounds of the rescheduling of flights as a result of the extraordinary circumstances mentioned in recitals 14 and 15? (3) Is [Regulation No 261/2004] to be interpreted as meaning that an air carrier may be exempted from liability under Article 5(3) [thereof] in extraordinary circumstances not only with respect to a flight which it cancelled, but also with respect to passengers on later flights, on the ground that by its actions it attempts to spread the negative effects of the extraordinary circumstances it encounters in its operations, such as a strike, among a wider class of passengers than the cancelled flight’s passengers by rescheduling its later flights so that no passenger’s journey was unreasonably delayed? In other words, may an air carrier rely on extraordinary circumstances also with respect to a passenger on a later flight whose journey was not directly affected by that factor? Does it make a significant difference whether the passenger’s situation and right to compensation are assessed in accordance with Article 4 of [Regulation No 261/2004], which concerns denied boarding, or with Article 5, which relates to flight cancellation?’

IV – My analysis

A – Preliminary observations

22. In order to give a clear reply to the national court, I think that the questions may be addressed in the following way.

23. The first question relates to the concept of ‘denied boarding’ within the meaning of Article 2(j) of Regulation No 261/204. More specifically, the national court wonders whether, in essence, that provision is to be interpreted as meaning that that concept covers only denied boarding because of overbooking or whether it also includes other situations, such as denied boarding owing to flight rescheduling.

24. The second and third questions are, in my view, connected. By those two questions, the national court is in fact asking the Court of Justice to consider the impact which extraordinary circumstances may have on the compensation and assistance rules established by Article 4 of Regulation No 261/2004.

25. Accordingly, by its second question, the national court wishes to know, in essence, whether Article 2(j) of that regulation is to be interpreted as meaning that characterisation as ‘denied boarding’ can be excluded only for reasons relating to the passenger who has been denied boarding or that other reasons, such as the rescheduling of flights owing to extraordinary circumstances, may be accepted for such exclusion.

26. Then, by the first part of the third question, the national court raises the question of the scope of the effects of a flight cancellation caused by extraordinary circumstances. It wonders, in essence, whether the exemption from the obligation to pay compensation if a flight is cancelled owing to extraordinary circumstances, as provided for in Article 5(3) of that regulation, may be extended to cases of denied boarding on a later flight where the air carrier justifies that denied boarding by the rescheduling of that flight as a result of those extraordinary circumstances.

27. Finally, by the second part of the third question, I understand that the national court wonders whether there is not inequality of treatment between the passengers whose flight has been cancelled and those who are denied boarding, since the former, under Article 5(3) of Regulation No 261/2004, are not compensated in the event of extraordinary circumstances, whereas the latter are entitled to compensation under Article 4 of that regulation.

B – Consideration of the questions referred

28. When considering the content of the concept of ‘denied boarding’, within the meaning of Article 2(j) of Regulation No 261/2004, the Court has the opportunity to rule on the scope of Article 4(3) of that regulation, which provides that a passenger who is denied boarding against his will must be compensated and assisted by the air carrier in accordance with Articles 7 and 9 of that regulation.

29. According to settled case-law, in interpreting a provision of European Union (‘EU’) law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part. ( 4 )

30. The concept of denied boarding is defined in Article 2(j) of Regulation No 204/2007 as ‘a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), [ ( 5 )] except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation’.

31. It is not possible, simply from reading Article 2(j) of Regulation No 261/2004, to determine whether the concept of denied boarding covers only situations of overbooking. It is therefore in the context of that provision and having regard to the objectives pursed by that regulation that it is necessary to examine the intention of the EU legislature.

32. That regulation is designed to replace Council Regulation (EEC) No 295/91. ( 6 ) The European Commission, in its Proposal for a Regulation, ( 7 ) stated that Regulation No 295/91 still did not dissuade air carriers from excessive denial of boarding or cancellation, nor give them incentives to balance the commercial advantages against the cost to passengers. Consequently, too many passengers would have continued to suffer from these practices. ( 8 )

33. With the adoption of Regulation No 261/2004, the stated objective was to fill the gaps in Regulation No 295/91 and to reduce the frequency of the practice of denied boarding by inducing air carriers to find volunteers to give up their reservations in exchange for benefits, instead of denying passengers boarding against their will. ( 9 )

34. They were therefore strict and deterrent rules in respect of air carriers which the European legislature intended to lay down with Regulation No 261/2004.

35. In order to give full effect to those rules, the concept of denied boarding must be interpreted broadly and cannot be limited to overbooking. This is evident from the travaux préparatoires for the adoption of that regulation. According to the EU legislature, the practice of denied boarding has two causes. The first is the transfer to a later flight of passengers unable to take that on which they were booked because of operational problems, such as late arrival or cancellation of connecting flights or replacement of out-of-order aircraft by smaller ones. The passengers transferred thus create unexpected demand for seats, sometimes to the extent that passengers on the later flight are denied boarding. The second cause is the practice called ‘no-show’, which results in the practice of overbooking. ( 10 )

36. The need to interpret the concept of ‘denied boarding’ broadly also stems from the objective which Regulation No 261/2004 seeks to achieve. I would recall that it aims at ensuring a high level of protection for air passengers, since denied boarding causes serious trouble and inconvenience to those passengers. ( 11 ) In that regard, the Court held, in its judgment in Sturgeon and Others, that the provisions conferring rights on air passengers, including those conferring a right to compensation, must be interpreted broadly. ( 12 )

37. To accept that only situations of overbooking are covered by the concept of denied boarding would have the effect of depriving passengers in Mr Lassooy’s situation of all protection.

38. Indeed, it should be remembered that Mr Lassooy, in the main proceedings, duly presented himself for boarding, which was denied him following the decision taken by Finnair to reschedule its flights and to give priority to the air passengers whose flight had been cancelled two days previously owing to a strike. The flight for which Mr Lassooy had a reservation left at the time and on the day scheduled.

39. Therefore, if it were considered that Mr Lassooy was not denied boarding, he could not rely on Article 4 of Regulation No 261/2004 or on the provisions of that regulation relating to cancellation or to those relating to delay. Accordingly, a passenger who finds himself in the same situation as Mr Lassooy, because the air carrier has unilaterally taken the decision to reschedule its flights, does not fall within any of the categories which provide protective measures for air passengers experiencing serious trouble and inconvenience. Not only is the air carrier not required to pay him compensation for the damage caused, but also and above all it is not required to give him assistance, that is to say to provide for the immediate needs, on the spot, of that passenger. He is abandoned to his fate, which is totally contrary to the objective pursued by that regulation which is, we recall, to ensure a high level of protection for air passengers.

40. Moreover, that might also have the effect of tempting certain air carriers to circumvent the provisions of Regulation No 261/2004 and to evade their obligations, disregarding the intention of the EU legislature which rightly considered that it was necessary to strengthen the rights of air passengers. ( 13 ) It would therefore be easy for those carriers to use a rescheduling of their flights or any reasons other than overbooking as an excuse to deny a passenger boarding and avoid paying him compensation or assisting him.

41. Consequently, in the light of all these considerations, I take the view that Article 2(j) of Regulation No 261/2004 is to be interpreted as meaning that the concept of denied boarding includes not only cases of overbooking, but also other grounds such as operational reasons.

42. Although, in my view, the concept of denied boarding does not cover only overbooking, it is now necessary to investigate whether a situation such as that of Mr Lassooy may be excluded from characterisation as ‘denied boarding’, within the meaning of Article 2(j) of Regulation No 261/2004, on grounds relating to the rescheduling of flights as a result of extraordinary circumstances.

43. Finnair takes the view that the reasons which led to the refusal to allow Mr Lassooy to board the flight for which he had a reservation were acceptable grounds for denied boarding, since those reasons are linked to health, safety or security, in accordance with that provision. Finnair also considers that, since Regulation No 261/2004 provides that the liability of the air carrier is to be limited in the event of extraordinary circumstances which it could not avoid, it was reasonable to deny boarding to Mr Lassooy. The national court wonders whether the acceptable reasons for denied boarding are not related only to the passenger to whom boarding is denied.

44. Although it is true that the use of the expression ‘such as’, in Article 2(j) of Regulation No 261/2004, shows that the list of grounds on which the characterisation of ‘denied boarding’ is precluded is not exhaustive, I think, nevertheless, that those grounds should be limited only to grounds related to the individual situation of the passenger.

45. The consequence of denied boarding on reasonable grounds, within the meaning of that provision, is that the passenger concerned is excluded from any possibility of compensation or assistance. Since this is therefore a derogation from the protective rules established by that regulation for the benefit of air passengers, it must be given a strict interpretation, in accordance with the settled case-law of the Court of Justice. ( 14 )

46. The point about denied boarding is that it relates to a passenger and not to the flight itself. Admittedly, it may happen that several passengers are denied boarding on the same flight. However, unlike cases of cancellation and delay, denied boarding does not affect all the passengers equally. It is an individual measure taken by the air carrier arbitrarily against a passenger who has nevertheless satisfied all the conditions for boarding.

47. That individual measure loses its arbitrary character only if the passenger himself commits a fault, for example by presenting invalid identity documents, or if, by his behaviour, he endangers the safety of the flight and/or of the other passengers, for example if he is inebriated or shows signs of violence. In my view, in such cases, it is because the decision not to allow the passenger to board is attributable to him that Article 4 of Regulation No 261/2004 does not apply and that passenger cannot claim any compensation or assistance.

48. On the other hand, it seems to me that, in view of the objective of that regulation, which is to ensure a high level of protection for air passengers, the decision to deny boarding based on reasons which are wholly unrelated to the passenger concerned cannot have the effect of depriving him of all protection. Indeed, as I have already stated in points 37 to 40 of this opinion, if we exclude from characterisation as ‘denied boarding’ a situation such as that of Mr Lassooy, that would have the effect of depriving him of any compensation or assistance.

49. The occurrence of extraordinary circumstances causing the air carrier to reschedule its flights, as in the present case, does not, in my view, affect that analysis.

50. First of all, since the concept of extraordinary circumstances is designed to limit, or even to exclude, the liability of the air carrier, where the event in question could not have been avoided even if all reasonable measures had been taken, ( 15 ) it must be applied restrictively.

51. I also note that recital 15 in the preamble to Regulation No 261/2004 states that ‘[e]xtraordinary circumstances ... exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation [ ( 16 )] of one or more flights by that aircraft’. The EU legislature did not expressly provide that the excuse of extraordinary circumstances may be invoked by the air carrier in the event of denied boarding. In that regard, as the Finnish Government rightly observed, even in the case of cancellation or delay owing to extraordinary circumstances, the passenger has the right to re-routing and assistance, under Articles 5 and 6 of that regulation. On the other hand, nothing similar has been provided by the EU legislature regarding a passenger who is denied boarding. As we have seen, the passenger concerned is deprived of all assistance and care where his situation does not fall within the scope of Article 4 of that regulation. That certainly confirms, in my view, that the EU legislature did not envisage that characterisation as ‘denied boarding’ could be excluded on grounds relating to the occurrence of extraordinary circumstances.

52. The same findings apply, in my view, as regards the possibility of extending the exemption from the obligation to pay compensation in the event of a flight cancellation due to extraordinary circumstances, to the case of denied boarding on a later flight where the air carrier justifies that denied boarding by the rescheduling of that flight as a result of those extraordinary circumstances.

53. Moreover, I would add that, according to recital 15 in the preamble to Regulation No 261/2004, extraordinary circumstances exist where an air traffic management decision relates to a particular aircraft on a particular day. ( 17 ) In the present case, the extraordinary circumstances, namely the strike by airport staff, affected only the 11.40 flight on 28 July 2006, since it alone was cancelled. Although those circumstances did indeed render the flight impossible, since Finnair had no control over the events which occurred at Barcelona airport, it was different for the flights on 29 and 30 July 2006, since Finnair was free to give priority or not to the passengers of the flight of 28 July 2006. The strike at Barcelona airport on that day by no means had the effect of constraining Finnair to deny boarding to Mr Lassooy, two days after the cancelled flight.

54. Finnair alone took the decision to reschedule the flights and such a decision cannot have the effect of depriving an air passenger who has duly presented himself for boarding of all protection.

55. It is indeed true that the airport strike cannot be attributed to Finnair. However, as is apparent from the travaux préparatoires for the adoption of Regulation No 261/2004, the system of compensation and assistance for air passengers established by the EU legislature is designed, above all, to protect those passengers. Thus, that legislature adopted a simple solution according to which all the obligations relating to that scheme are the responsibility of the carrier operating the flight. It is a solution which is practical since the operating carrier has personnel and agents in the airports to help passengers. It is a system which is direct and simple, and therefore easily understood by passengers. ( 18 )

56. If the air carrier considers that it does not have to suffer the consequences of the airport strike, it has the right, under Article 13 of Regulation No 261/2004, to seek compensation from any person, including third parties, in accordance with the law applicable.

57. Such an interpretation may be challenged by the fact that the fate of the passenger denied boarding by the carrier, as in the present case, as a result of extraordinary circumstances is more favourable than that of the passenger whose flight has been cancelled or delayed as a result of those circumstances, since the former is compensated but the latter is not. According to the Finnish Government, that may be contrary to the principle of equal treatment.

58. According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 19 ) However, contrary to what the Finnish Government maintains, ( 20 ) I do not think that passengers who are the victims of a flight cancellation or delay are in the same position as passengers to whom the air carrier has denied boarding.

59. Indeed, as I observed, in point 46 of this opinion, denied boarding does not affect all the passengers on a flight, but one or more passengers who have nevertheless duly presented themselves for boarding. Simply on the arbitrary decision of the air carrier, the passenger who has been denied boarding will not be on the flight for which he had a reservation, a flight which will be operated in accordance with scheduling arranged by the air carrier. It is different in the case of flight cancellation or delay, since, in such cases, all the passengers are concerned and affected in the same way.

60. Where the flight cancellation or delay is due to extraordinary circumstances, the air carrier is not required to pay the compensation provided for in Article 7 of Regulation No 261/2004 since that carrier had no control over events. ( 21 ) Since the trouble and inconvenience suffered by the passengers is not the responsibility of that carrier, compensation, which fulfils a dissuasive role, ( 22 ) does not apply.

61. On the other hand, that is not the case where the passenger has been denied boarding, as in the present case, after a rescheduling of flights has been decided by the air carrier owing to extraordinary circumstances. Simply by making that decision, the air carrier makes one or more passengers selected completely arbitrarily suffer trouble and inconvenience. For that reason, because the harm suffered is attributable to the air carrier, compensation is payable in order to dissuade the carrier from resorting to such a practice and to give more importance to calling for volunteers to surrender their reservations, in accordance with Article 4(1) of Regulation No 261/2004.

62. Therefore, in the light of all these factors, I think that Articles 2(j) and 4 of that regulation are to be interpreted as meaning that denied boarding cannot reasonably be justified by extraordinary circumstances, since only the denied boarding of passengers justified on grounds relating to the individual situation of those passengers may have the effect of excluding that denial from characterisation as denied boarding.

63. Moreover, Articles 4(3) and 5(3) of that regulation are to be interpreted as meaning that an operating air carrier cannot rely on extraordinary circumstances having affected a flight in order to be exempt from its obligation to compensate a passenger to whom it denies boarding on a later flight where it justifies that denial by the rescheduling of that flight as a result of those extraordinary circumstances.

64. Such an interpretation does not come into conflict with the principle of equal treatment.

V – Conclusion

65. In the light of the foregoing considerations, I propose that the Court should reply to the Korkein oikeus as follows: (1) Article 2(j) 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, is to be interpreted as meaning that the concept of denied boarding includes not only the case of overbooking but also other grounds, such as operational reasons. (2) Articles 2(j) and 4 of Regulation No 261/2004 must be interpreted as meaning that denied boarding cannot reasonably be justified by extraordinary circumstances, since only the denied boarding of passengers justified on grounds relating to the individual situation of those passengers may have the effect of excluding that denial from characterisation as denied boarding. Articles 4(3) and 5(3) of that regulation are to be interpreted as meaning that an operating air carrier cannot rely on extraordinary circumstances having affected a flight in order to be exempt from its obligation to compensate a passenger to whom it denies boarding on a later flight where it justifies that denial by the rescheduling of that flight as a result of those extraordinary circumstances. Such an interpretation does not come into conflict with the principle of equal treatment.

( 1 ) Original language: French.

( 2 ) Regulation 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).

( 3 ) Hereinafter ‘Finnair’.

( 4 ) See Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923, paragraph 41 and the case-law cited.

( 5 ) Those conditions are, inter alia, the following. Passengers must have a confirmed reservation on the flight concerned and present themselves for check-in, either as stipulated and at the time indicated in advance and in writing 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.

( 6 ) Council Regulation of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport (OJ 1992 L 36, p. 5).

( 7 ) Proposal for a regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights, presented by the Commission on 21 December 2001 (COM(2001) 784 final).

( 8 ) Paragraph 5 of the Explanatory Memorandum.

( 9 ) See Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights (SEC/2003/361 final, p. 2).

( 10 ) See paragraphs 7 to 9 of the Explanatory Memorandum of the Proposal for a Regulation referred to in footnote 7.

( 11 ) See recitals 1 and 2 in the preamble to that regulation.

( 12 ) See paragraph 45 of that judgment and the case-law cited.

( 13 ) See recital 4 in the preamble to that regulation.

( 14 ) See Case C-481/99 Heininger [2001] ECR I-9945, paragraph 31. See also Case C-549/07 Wallentin-Hermann [2008] ECR I-11061, paragraph 17 and the case-law cited.

( 15 ) See recital 14 in the preamble to Regulation No 261/2004.

( 16 ) Emphasis added.

( 17 ) Idem.

( 18 ) See the Commission Communication to the European Parliament of 25 March 2003, cited in footnote 9, p. 3.

( 19 ) See Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 95.

( 20 ) See Paragraph 24 of the observations.

( 21 ) See the aforementioned judgments in Wallentin-Hermann, paragraph 23, and Sturgeon and Others, paragraph 67.

( 22 ) See the Commission Communication to the European Parliament of 25 March 2003, cited in footnote 9, p. 3.