Given the upcoming holiday season where the majority of people take their long-awaited and well-deserved holidays, we would like to take a practical look at issues related to flight delays and cancellations which cause so many upsets (and internet searches) for thousands of people during these months.
One obvious issue is that the massive displacement of people during these months also generates a need for a more precise management and organisation during these months than during the rest of the year. Likewise, many collectives related to the transport sector take advantage of the situation by making public their claims, resulting in the passengers being the affected parties, albeit indirectly.
This said, and moving on to the practical aspect, the different settings we may encounter are the following:
- Denied boarding against the passenger’s will.
- Flight delays
- Flight cancellations
For these purposes, Regulation EC 261/2004 of the European Parliament and of the Council protects consumers, of general application to passengers that
a) leave from an airport located in the EU, with a few exceptions
b) leave from an airport located in a third country with destination in an airport located in the EU, when the carrier is an EU community carrier.
Firstly, we shall present the compensations that can be claimed as a whole and, subsequently, their application to each case.
I. Possible financial compensation
a) Euro 250 for flights of up to 1,500 km;
b) Euro 400 for all intra-Community flights of more than 1,500 km and for all other flights between 1,500 and 3,500 km;
c) Euro 600 for all flights not falling under (i) or (ii).
The distance shall be determined on the basis of the last destination to which the passenger arrives late in relation to the scheduled time due to denied boarding or cancellation. Distances shall be measured in a straight line on the map.
When passengers are offered the possibility of being taken to their final destination with alternative transport and when the difference in the arrival time in respect of the arrival time of the flight as reserved initially:
i. does not exceed 2h, for all flights of 1,500 km or less; or
ii. does not exceed 3h, for all intra-Community flights of more than 1,500 km and for all other flights between 1,500 and 3,500 km, or
iii. does not exceed 4 hours for all flights not falling under (a) or (b),
the operating air carrier may reduce the previous compensation by 50%.
II. Right to reimbursement or alternative transport
a) Reimbursement within 7 days of the full cost of the journey not made and the part of the journey made, if the journey no longer has its original purpose and, if appropriate, a flight back to the point of departure as quickly as possible;
b) Driving to the final destination as quickly as possible (or date to be agreed), under comparable transport conditions.
III. Right to attention
a) Sufficient food and refreshments, depending on the duration of the wait;
b) Accommodation in a hotel in cases where it is necessary to spend one or more nights;
c) Transport between the airport and the accommodation.
d) Furthermore, passengers shall be offered two telephone calls, telex or fax messages or e-mails, free of charge.
1. Denied boarding against a passenger’s will
Denied boarding usually occurs in cases of overbooking. In these circumstances, the law provides for the possibility of denying boarding on the basis of mutual agreement provided that the airline offers benefits in return. However, if it is against the passenger’s will, the passenger is entitled to compensation and assistance in accordance with sections I, II and III above.
2. Flight delays
If the air carrier foresees the delay of a flight with respect to the time of departure of
a) 2 hours or more for flights of 1,500 km or less
b) 3h or more for intra-Community flights of more than 1,500 km and all other flights between 1,500 and 3,500 km; or
c) 4 hours or more for flights not falling under (a) or (b).
it shall offer passengers the assistance offered in III a) and d). If the scheduled departure time is at least the following day, the assistance provided for in III (b) and (c) shall be offered. Similarly, if the delay is at least 5 hours, passengers shall be offered the possibility provided for in II a).
3. Cancellation of flights
In the event of the cancellation of the flight, the passenger shall be offered the assistance provided for in paragraph II, the assistance provided for in III (a) and (d) and, where appropriate, III (b) and (c).
Likewise, passengers shall be entitled to the compensation referred to in section I above, except when cancellation has been notified at least 2 weeks in advance or, where less prior notice has been given and alternative transport has been offered, the latter within certain delay margins. Likewise, compensation shall not be due, according to the regulation, if the cancellation is due to “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken“.
Once the out-of-court or “amicable” claim has been exhausted, only a claim through the courts may be pursued.
Andreas Terán
Vilá Abogados
For further information, please contact:
31st May 2019
