08 May 2020

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Our office participated in the case D. Z. v. Blue Air C-584/18 of the Court of Justice of the European Union. Mr Constantinos Papantoniou who took over the case is analysing the main points of the decision.

1. EU decisions may create rights which individuals / citizens, even the ones from third countries, may invoke against States bound by them. These rights are not to be invoked only by States.

2. In this case, the passenger presented his residence permit to the Blue Air employee at the airport. The employee contacted Romania's ground control and was informed that entry would be denied to a passenger who does not have an entry visa. In the event like that, which the carrier refuses to board a passenger because he/she does not have the necessary documents to enter the State, the carrier may not be considered as acting on behalf of the destination State, even though it has received instructions from it.

3. In this case, however, the passenger could not face the refusal of the Romanian authorities, but only the airline’s. EU law, in particular Article 13 of the Schengen Agreement, means that an airline is not allowed to refuse the boarding of a third-country national, because of the refusal of the authorities of the Member State of destination to allow this national to enter its territory, without the refusal of entry having been the subject of a written and reasoned decision, previously given to the person concerned.

4. Following the above considerations, Regulation 261/2004, and in particular Article 2 (1), means that, in the event that an airline refuses a passenger from boarding, on the grounds that he/she has shown inadequate travel documents, the above refusal does not, in itself, deprive the particular passenger of the protection provided by this Regulation. In the event of a legal challenge by the passenger, it is ultimately up to the competent court to assess the situation, taking into consideration the circumstances of the case and decide whether or not the refusal was justified in the sense of that provision.

5. Any clauses in the contract of carriage that restrict or preclude liability of the airline in the event of refusal to board a passenger due to inadequacy of travel documents are contrary to Regulation 261/2004 and should not be taken into account.

The decision of the Court of Justice of the European Union makes clear that passengers have rights deriving from the Regulation 261/2004 and other EU legislations and they must claim them.

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