Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 19
EU261 at twenty-one: coming of age or time expired?
Overview
EU Regulation 261/2004 (EU261)[1] has governed
passenger rights in cases of flight delay, cancellation and
denied boarding for more than two decades. During
this period, the Court of Justice of the European Union
(CJEU) has issued extensive jurisprudence refining and
reshaping the regulation, often filling gaps left by its
original text. This article provides a high-level summary
of four 2025 CJEU judgments and considers whether,
at its twenty-first anniversary of coming into force,
EU261 has matured into a stable regulatory regime or is
showing signs of obsolescence.
Introduction
Since entering into force in February 2005, EU261
has become a central pillar of consumer protection
in European air travel. It has also generated a steady
flow of preliminary references[2] from national courts
across the EU, prompting the CJEU to deliver roughly 80
judgments interpreting its provisions. As the regulation
moves into its third decade, it is judicial interpretation
- rather than legislative amendment - that continues to
shape and refine the scope and application of EU261.
The UK, following Brexit, retains the core principles of
EU261 within the domestic regime (UK261).[3] Although
post-Brexit CJEU decisions no longer bind UK courts,
they continue to hold persuasive authority in domestic
adjudication.
Vouchers, miles, and consent under EU261
Airline loyalty programmes have grown significantly in
sophistication since their inception, and many carriers
now promote the use of vouchers or air miles as an
alternative to cash compensation under EU261. The
question of whether passengers implicitly consent to this
by mere enrolment in a loyalty programme has recently
reached the CJEU.
Article 8(1)(a) grants passengers the choice between
reimbursement and re-routing. Where reimbursement
is selected, Article 7(3) sets cash payment as the default,
subject only to the passenger’s signed agreement to
Aviation Anthology 2026 - Volume I
receive compensation in travel vouchers and/or other
services (such as air miles or vouchers).
An earlier 2024 CJEU judgment (Cobult UG v TAP
Air Portugal SA (C-76/23)) interpreted “signed
agreement” as requiring evidence of effective and
informed choice by the passenger, rather than formally
executed consent. In a judgment of 16 January 2025,
Flightright GmbH v Etihad Airways P.J.S.C. (C-642/23),
the CJEU held that whilst “signed agreement” does
not require a handwritten signature, enrolment in a
loyalty programme, without more, cannot constitute
valid consent to non-cash reimbursement. Enrolment
merely indicates a general intention to participate
in the programme, not an express, definitive and
unequivocal acceptance of voucher reimbursement.
Whether informed consent was obtained remains a
matter for national courts to determine, based on the
circumstances of each case.
What counts as a reservation? CJEU confirms
boarding passes meet Article 2(g) EU261
requirement
EU261 applies where passengers hold a confirmed
reservation and present themselves for check-in. While
“reservation” includes “other proof” accepted by the
carrier, the regulation does not define what such proof
might be. In Cymdek (C-20/24), the claimants’ charter
flight was subject to a 22-hour delay. In bringing their
claim, the passengers who travelled as part of a package
holiday, produced their boarding passes because they
did not hold flight tickets. The carrier disputed their
standing to bring a compensation claim.
The CJEU held that a boarding pass may constitute
“other proof” of a confirmed reservation unless the
airline can show otherwise. A boarding pass evidences
the acceptance and registration of the booking and
need not contain all information typically found on a
ticket. This interpretation aligns with the overarching
objective of EU261 to ensure a high level of passenger
protection.
DAC Beachcroft
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