CJEU: Larnaca District Court refers a preliminary question on denial of boarding by airlines, due to passengers’ inadequate travel documentation

Wednesday, September 19, 2018

On 19 September, the District Court of Larnaca, Cyprus, referred the following questions to the Court of Justice of the European Union for a preliminary ruling:

Should Decision No 565/2014/EU 1 be interpreted as producing direct legal effect in the form, on the one hand, of the right of a third country national without 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?

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?

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, 2 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)?

Does Article 2(j) of Regulation (EC) No 261/2004 3 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?

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 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?

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