Limiting the scope of the concept of ‘denied boarding’ exclusively to cases of overbooking would have the practical effect of substantially reducing the protection afforded to passengers under Regulation No 261/2004 and would therefore be contrary to the aim of that regulation — referred to in recital 1 in the preamble thereto — of ensuring a high level of protection for passengers. Consequently, a broad interpretation of the rights granted to passengers is justified.

The EU legislature expanded the scope of the concept of ‘denied boarding’ beyond merely situations where boarding is denied on account of overbooking referred to previously in Article 1 of Regulation No 295/91 establishing common rules for a denied-boarding compensation system in scheduled air transport, and construed ‘denied boarding’ broadly as covering all circumstances in which an air carrier might refuse to carry a passenger.

The concept of ‘denied boarding’, within the meaning of Articles 2(j) and 4 of Regulation No 261/2004 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 No 295/91, must be interpreted as relating not only to cases where boarding is denied because of overbooking but also to those where boarding is denied on other grounds, such as operational reasons.

Articles 2(j) and 4(3) of Regulation No 261/2004 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 No 295/91, must be interpreted as meaning that the occurrence of extraordinary circumstances resulting in an air carrier rescheduling flights after those circumstances arose cannot give grounds for denying boarding on those later flights or for exempting that carrier from its obligation, under Article 4(3) of that regulation, to compensate a passenger to whom it denies boarding on such a flight.

Unlike Article 5(3) of Regulation No 261/2004, Articles 2(j) and 4 of that regulation do not provide that, in the event of denied boarding owing to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, an air carrier is exempted from its obligation to compensate passengers denied boarding against their will. It follows that the EU legislature did not intend that compensation may be precluded on grounds relating to the occurrence of extraordinary circumstances.

In addition, it is apparent from recital 15 in the preamble to Regulation No 261/2004 that extraordinary circumstances may relate only to ‘a particular aircraft on a particular day’, which cannot apply to a passenger denied boarding because of the rescheduling of flights as a result of extraordinary circumstances affecting an earlier flight. The concept of ‘extraordinary circumstances’ is intended to limit the obligations of an air carrier — or even exempt it from those obligations — when the event in question could not have been avoided even if all reasonable measures had been taken. If such a carrier is obliged to cancel a scheduled flight on the day of a strike by airport staff and then takes the decision to reschedule its later flights, that carrier cannot in any way be considered to be constrained by that strike to deny boarding to a passenger who has duly presented himself for boarding two days after the flight’s cancellation.

(see paras 36, 37, 40, operative part 2)