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Your rights under Reg 261 explained

Aviation » 

Published: 08/11/2014 - Filed under: News » Opinion » Aviation » Opinion »

Alexander Freeman is an aviation lawyer, journalist and travel writer
 

Denied boarding, delays and cancellations are an unavoidable part of air travel and can be caused by a variety of factors both within and outside the airline's control.

At best, they can be a minor inconvenience. At worst, they can have serious consequences for passengers and airlines alike.

In 2004, the European Union, fulfilling its policy of uniformly protecting consumer rights, passed regulation 261/2004 (the "Regulation"). The Regulation sets out the entitlements available to eligible passengers in the event their flight is delayed, cancelled or where they are denied boarding due to overselling.


To whom does the Regulation apply?

The Regulation applies to "passengers departing from an airport located in the territory of a [European] Member State to which the Treaty applies".

It also applies to "passengers departing from an airport located in a third country [ie, a non EU country] to an airport situated in the territory of a [European] Member State to which the Treaty applies unless the passenger received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier".

In other words, you are covered when the flight departs from an airport in an EU country, or a flight into the EU where that flight is operated by an EU based airline.

For example, if you're travelling on British Airways from London to New York return, you would be covered for both the outbound and inbound flight.

However, if you're travelling on American Airlines, you'd only be covered for the outbound flight but not the sector into London because American Airlines is not a "community carrier" as defined in the Regulation vis a vis "an air carrier with a valid operating licence granted by a [EU] Member State".

To get protection under the Regulation you must be holding a confirmed reservation for the flight and have presented at check-in no later than 45 minutes prior to the published departure time (unless a revised departure time is communicated to you by the airline).


What's covered?

Denied Boarding

Where a flight is oversold, the airline must first look for volunteers willing to give up their confirmed seat on that flight in return for what's usually an offer of a free flight, a voucher, frequent flyer miles or any other mutually agreed settlement.

While volunteers are still eligible to apply for compensation under the Regulation, most airlines will seek to exclude this in any settlement agreed to at the time the seat is given up.

Where the airline has no luck finding volunteers, it will then offload passengers from the flight involuntarily. Such passengers are usually those that haven't checked-in online or haven't arrived early at the airport but, importantly, still arrived at check-in before it closes (keeping in mind the 45 minutes before departure condition).

While these passengers, known as "involuntary offloads", won't get on that flight, they should be able to seek compensation for any resulting delays caused by the fact they were unable to travel on the flight on which they were booked and confirmed.

Delay

Where an applicable flight is delayed for more than two hours, under the Regulation the airline is obliged to provide, first up, assistance in the form of meals, refreshments or accommodation that are reasonable in relation to the waiting time.

These usually come in the form of vouchers and are especially important for those travellers without lounge access although passengers with lounge access may still be eligible to receive such vouchers.

The extent to which an airline is obliged to provide assistance and compensation depends on the length of the flight and the amount of delay. The breakdown is as follows [1]:

  • Assistance must be provided for delays of 2 hours or more in the case of flights up to 1500km. 
  • Assistance must be provided for delays of 3 hours or more in the case of all intra-EU flights more than 1500km and all other flights between 1500km and 3000km.
  • Assistance must be provided for delays of 4 hours or more which are not covered above. 

In addition to providing assistance, airlines are obliged to provide the following compensation:

  • For flights 1500km or less that are more than 3 hours delayed at the destination: €250
  • For flights within the EU more than 1500km or for all other flights between 1501-3500km where the delay is greater than 3 hours at the destination: €400
  • For flights over 3500km where the delay is more than ?3 hours at the destination: €600. 

Importantly, compensation and assistance (such as food and refreshments) are provided separately. So where a passenger is given a €15 food voucher during a 3.5 hour delay, ordinarily this shouldn't be taken off the compensation the airline might also be obliged to provide.

Hotel accommodation (including transfers to and from the airport) must be provided where the delay requires an overnight stay, although this depends on the length of the delay. Providing accommodation for a three hour delay to a flight scheduled to depart at 2am may not be deemed reasonably necessary.

The Regulation also ensures affected travellers have the ability to contact those waiting for them by obliging airlines to provide "free of charge, two telephone calls, telex or fax messages, or emails”. [2]

Where the flight is delayed by five hours or more, passengers are normally entitled to abandon their journey and receive a refund for all unused tickets, a refund on tickets used already if the flight no longer serves any purpose to their original travel plan, and, if relevant, a flight back to their original point of departure at the earliest opportunity.

Cumulative delays caused by missed connections

What about cumulative delays where one delay leads to a missed connection causing an even longer delay?

In the German case of Folkert [3], the passengers were travelling from Bremen in Germany to Asuncion in Paraguay via Paris and Sao Palo. The first flight was delayed by 2.5 hours.

However, as a result of missed connections caused by the first delay, the claimants arrived in Asuncion 11.5 hours later than scheduled. Air France claimed they weren’t liable, given the initial delay was only 2.5 hours, but the German Federal Court found in favor of the passengers.

The case highlights that delays can be measured both as departure delays and arrival delays, such that a short delay at the beginning of a multi-sector journey can nevertheless result in a much longer delay on arrival at the final destination.

The claimants were therefore able to claim for the whole 11.5 hour delay even though the first flight was only delayed 2.5 hours.

Cancellation

Where an applicable flight is cancelled, airlines are obliged to keep "trouble and inconvenience to passengers" [4] to a minimum.

In practice, this obliges an airline to inform affected passengers of cancellation before the scheduled time of departure, offer a reasonable re-routing at the "earliest opportunity" or a full refund (including a return flight to the point of departure) at the "earliest opportunity" where the cancellation is part of a multi-sector journey.

So, for example, when a passenger is travelling from London to Athens via Frankfurt on two separate flights and the Frankfurt to Athens sector is cancelled, the passenger should be entitled to a full refund of the fare as well as the right to be flown back to London to avoid being stranded in Frankfurt halfway through their journey. 

In relation to flight cancellations or denied boarding the following compensation applies: 

  • For all flights 1 500 km or less: €250
  • For all intra EU flights of more than 1500 km, and all other flights between 1500-3500 km: €400
  • For all flights of 3,500km or more: €600

Where the airline are able to re-route a passenger on an alternative flight to their final destination and where the arrival time does not exceed the scheduled arrival time of the flight originally booked by:

  • Two hours, in respect of all flights of 1500 km or less; or
  • Three hours in respect to intra-EU flights of more than 1500 km and for all other flights between 1500 and 3500 km; or
  • By four hours, in respect of all flights of 3500km or more

then the amount of compensation payable by the airline reduces by 50%.


Extraordinary circumstances?

The airlines' first line of defence is claiming that the delay or cancellation was caused by "extraordinary circumstances". [5]

The point of this provision is to protect airlines from delays or cancellations caused by the unpredictable and uncertain conditions under which airlines operate. These might include: political or civil unrest, security risks, hidden manufacturing defects in the aircraft or extreme weather.

A recent example is the Eyjafjallajökull volcano eruption in Iceland. The resulting ash-cloud shut down much of Europe's airspace for days stranding passengers in airports worldwide.

The European Court of Justice (ECJ) [6] subsequently held that natural disasters with the severity of the Eyjafjallajökull eruption do constitute "extraordinary circumstances", thereby releasing airlines from an obligation to pay compensation.

However, the ECJ pointed out that no such category as "super-extraordinary circumstances" exists that would free airlines from their obligation to provide basic care to their passengers such as refreshments, accommodation and telephone calls referred to above.

What about planes "going tech"?

Where does the law leave airlines when their aircraft become non-operational causing the the delay or cancellation of a flight?

This issue was dealt with recently by the English Court of Appeal [7] which ruled that "ordinary technical problems that cause flight disruption, such as component failure and general wear and tear, should not be considered 'extraordinary circumstances'".

Whilst this is good news for consumers, the decision will have significant financial consequences on the airline industry. The UK's Civil Aviation Authority (CAA) recently reported that a record 84% of scheduled flights in the UK departed ‘on-time’ for Q1 2014, but of the 16% that were delayed, a significant number arose due to technical problems with the aircraft. [11] Without the protection of this defence, airlines will now be forced to consider the financial impact of compensating passengers when deciding whether to cancel a flight in these circumstances.

Strikes

What about strikes, as many passengers recently affected by industrial action in Europe will no doubt be wondering.

Strikes ordinarily fall under the "extraordinary circumstances" exception (see above) although a European court ruled in 2012 [8] that events like strikes may not exempt an airline from paying compensation for denied boarding if a passenger's remaining flights are affected by airline schedule changes due to an industrial dispute.

Nevertheless, even where an airline is freed from their obligation to pay compensation due to strike action, they're still invariably bound to provide meals, transport and accommodation as required under Article 9 of the Regulation.


What does this mean for travellers?

Passengers travelling into, within, or from the EU are some of the best protected consumers of air travel.

ICAO, the United Nations agency responsible for international civil aviation is currently examining ways, in conjunction with industry bodies such as IATA, to achieve global uniformity in how consumers are protected when inevitable delays and cancellations occur.

Consumer advocate bodies such as the European Consumer Organisation (BEUC) have also proposed amendments to the existing Regulation which include scrapping the "extraordinary circumstances" defence in the case of bad weather where it can be foreseen and predicted [9].

But any law is useless unless it's upheld. So we ask the question: how well is the Regulation enforced and how many airlines pay up when the inevitable delays and cancellations occur?

Article 14 of the Regulation obliges airlines to inform passengers of their rights where they have been denied boarding, delayed or their flight's been cancelled.

Yet a survey carried out by Germany’s Verbraucherzentrale Brandenburg, the Danish Consumer Council and the UK Civil Aviation Authority [10] showed that while 75 per cent of passengers suffering delays or cancellations were re-routed and therefore able to maintain their travel plans, only 50 per cent were offered meals, refreshments and accommodation to which they were otherwise eligible.

In the Danish survey, only 2 to 4 per cent reportedly received monetary compensation. In the German survey, only 20 per cent of complainants reportedly received a response to their claim from the airline.

Consumers might therefore find it useful to be aware of their rights before, during and subsequent to taking a flight.

Most European airlines provide a copy of the Regulation on their websites. A savvy business traveller might consider having a copy handy. This may assist in reducing confusion as to what the passenger is entitled to therefore resulting in assistance being provided faster and more effectively. It might even help you get on the next available flight a little quicker so you can enjoy that gin and tonic sooner rather than later.


Read our contributor biography of Alexander Freeman

  1. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32004R0261.
  2. Article 9 of the Regulation.
  3. http://eutopialaw.com/2013/03/18/sturgeon-revisited-yet-again-case-c-1111-air-france-v-folkerts/.
  4. Subsection (2) of the Regulation’s preamble.
  5. Article 5 of the Regulation.
  6. http://eutopialaw.com/2013/02/04/case-c-1211-denise-mcdonagh-v-ryanair-volcanic-ash-and-super-extraordinary-circumstances/.
  7. Jet2 vs. Huzar http://www.caa.co.uk/application.aspx?appid=7&mode=detail&nid=2370.
  8. C-22/11, Finnair Oyj v Timy Lassooy, 4 October 2012.
  9. http://www.beuc.org/publications/2013-00505-01-e.pdf.
  10. http://www.parliament.bg/pub/ECD/128092SWD_2013_62_EN_DOCUMENTDETRAVAIL_f.pdf.
  11. http://www.caa.co.uk/application.aspx?catid=14&pagetype=65&appid=7&mode=detail&nid=2377?

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Are you sure this is correct? This article says: For flights up to 1500km, assistance must be provided where the delay is two hours or more and the current applicable compensation is €250.
When I read the rules anywhere else, it always says that compensation only applies after a three-hours delay and that must be a three-hour delay of arrival nit departure.

I hadn't realised the limitation of scope of this legislation on non-community carriers. How can this be a level and fair playing field?

If and when Britain exits the EU, could BA and VS no longer be encumbered by Reg 261?

BugAdvisor

Thank you very much for your comment.

Originally EU Regulation 261/2004 only provided for assistance, but not compensation, to passengers whose flights were delayed for 2 hours or longer but not cancelled.

In 2009 The European Court of Justice held that despite there being no express provision in the Regulation to compensate passengers for delay, those affected were now entitled to the compensation for any delay at the destination in excess of three hours, as you have rightly pointed out, subject to the airline raising a defence of "extraordinary circumstances".

I have amended the article to make the distinction between obligations in respect of 'assistance' and 'compensation' clearer.

What would make the recalcitrant airlines more likely to respect the regulation, and pay promptly, would be a punitive fine, somehow based on the time involved to obtain compensation due to their attempts at refusal to pay. In my case it was more than six months of back-and-forth e-mails before they paid €1200 to me and my traveling companion.

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