Communication: new case No. 0751 of 2021

IDENTIFIER
62021CN0751
LANGUAGE
English
COURT
Court of Justice of the European Union
AG OPINION
NO
REFERENCES MADE
0
REFERENCED
0
DOCUMENT TYPE
Communication: new case

Judgment



28.2.2022   

EN

Official Journal of the European Union

C 95/17


Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 7 December 2021 — PJ v Eurowings GmbH

(Case C-751/21)

(2022/C 95/21)

Language of the case: German

Referring court

Landesgericht Salzburg

Parties to the main proceedings

Applicant: PJ

Defendant: Eurowings GmbH

Questions referred

1.

Is there a case of ‘denied boarding’ within the meaning of Article 4 and Article 2(j) of Regulation (EC) No 261/2004 (1) (‘Air Passenger Rights Regulation’) even in the case where passengers are denied boarding on the flight in question not at the boarding gate (departure gate) but earlier, at the check-in counter, and for that reason do not even get as far as the boarding gate (departure gate)?

2.

In order to meet the conditions under Article 3(2)(a) of the Air Passenger Rights Regulation, is it sufficient that, in the case of a departure time of 6:20 a.m., a boarding time of 5:50 a.m. and ‘gate closure’ at 6:05 a.m. (according to the boarding pass in each case), the passenger, after arriving at the airport by taxi at 5:14 a.m., presents himself at the defendant’s check-in desk immediately afterwards (that is to say, at approximately 5:16 a.m.) — particularly in view of the fact that, at 3:14 a.m. on the day of departure, the defendant informed the passenger that the flight was heavily booked and that hand luggage had to be checked in at the check-in counter, and also in consideration of the fact that the defendant had informed the passenger that the check-in counter at Hamburg Airport opens 2 hours before departure and closes 40 minutes before departure?

3.

Is there a case of ‘denied boarding’ within the meaning of Article 4 and Article 2(j) of the Air Passenger Rights Regulation in the case where, at 5:16 a.m., the applicant and his family are immediately referred from the defendant’s check-in counter to the very busy luggage check-in machines at Hamburg Airport in order to check in their luggage, which are not functioning properly despite assistance from employees of the defendant or the airport, after which the passengers are sent to further luggage check-in machines, where the passengers are once again unable to check in their luggage, with the result that it is not until 5:40 a.m. that one of the machines is operational and recognises the luggage, but then, at 5:41 a.m., refuses to check it in and refers the applicant back to the defendant’s check-in counter, where he is then informed that he has now missed the flight?

4.

Having regard to the difficulties encountered with the automated luggage check-in, does simply following the instructions of the employees and the machines, thereby overlooking the diminishing amount of time remaining until the check-in process ends and the departure gate closes, constitute contributory negligence on the part of the applicant and his fellow passengers? Can any blame be attributed to the applicant and his fellow passengers for not having considered, in good time, in view of the difficulties that they encountered when checking in their luggage, the possibility of having their luggage forwarded? Would it have been reasonable to expect the group of passengers to separate, leaving one person, for example the applicant, with the luggage, in order to enable the remaining persons to reach the departure gate, in particular in view of the fact that the mobility of the applicant’s daughter and mother-in-law was restricted, due to the need to use crutches following a knee operation in the case of his daughter and due to age and arthrosis in the case of his mother-in-law?

5.

In the event that Questions 1 to 3 are answered in the negative, is Article 2(j) of the Air Passenger Rights Regulation to be interpreted as meaning that a situation in which passengers join the queue at the check-in desk approximately one hour before departure, but, because of organisational shortcomings on the part of the airline (such as not opening enough check-in desks, short staffing and not providing information to passengers over the public announcement system) and/or on account of disruptions affecting the airport (a luggage check-in machine malfunction), do not reach the front of the queue at the check-in desk until a point in time (closing time of the check-in counter) by which, for that reason, passengers are no longer being accepted onto the flight, constitutes a case of ‘denied boarding’ within the meaning of Article 2(j) of the Air Passenger Rights Regulation?


(1)  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).



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