Over the past years as air travel has increased so have the rights of consumers in respect of air travel.  This has caused there to be a number of codes of conduct applicable to airlines as well as statutory provisions under EU law.  The trouble and inconvenience caused by a passenger being denied boarding, the cancellation of or the long delay of a flight should be minimised for passengers.

In such case the airlines must comply with the provisions of Regulation no. 261/2004 (EC) of European Parliament and Council in relation to informing passengers about the rules for compensation and assistance which the airline must offer to them.

Each passenger affected by a delay of at least two hours should receive from the airline a written notice specifying the rules for compensation and assistance and give details of the national authority responsible for passenger rights.

From our experience advising passengers and airlines in practice there seems to be a growing trend to exploit the rights recognized at the European level for passengers by Regulation No. 261/2004 (EC) establishing common rules on compensation and assistance to passengers in the event of them being denied boarding, cancellation or a long delay of the flight.

Although airlines are in most cases invited to an amicable settlement of such a dispute they either remain passive or offer delayed / partial compensation to passengers, the damage not being fully covered. In accordance with the Regulation passengers should receive compensation for flight delays of between 250 and 600 euros depending on the length of the flight.

If compensation is not forthcoming in such situations passengers can address the court to compel airlines to pay compensation.

The Regulation no. 261/2004 (EC) regulates only issues concerning long delays (delayed take-off after the established departure time), cancellation, denial of boarding or downgrading.  The law has held that the provisions in respect of a delayed flight passengers have the same effect as a cancelled flight.

The European Court of Justice established in the judgment in Joined Cases C- 432/07 and C-402/07 (Sturgeon / Condor Flugdienst GmbH and Böck and Others / Air France SA) that passengers whose flights are delayed may be treated as passengers whose flights are cancelled for an application of the right to compensation and they can claim compensation when they suffer a delay of at least two hours, in other words when they reach their destination two hours or more after the scheduled arrival time of the carrier.

The carrier is not obliged to pay compensation if they can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures necessary.

What is an extraordinary circumstance?  We set out below one example.  The European Court has held that the article relating to exceptional circumstances, should be interpreted as meaning that a technical problem to an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of this provision.  The exception is the case in which this problem follows an event which by their nature or origin are beyond the control of the air carrier (Wallentin Hermann).  The same conclusion applies in the case of flight delay.

Further according to the list issued by the National Enforcement Bodies (NEB) at their meeting of 12th April 2013, a technical failure it is not provided for as an extraordinary situation. A delayed flight in this situation is in the list in the category of non-extraordinary circumstances.

The decision given in case C-257/2014 Corina van der Lans v Koninkliijke Luchtvaart Maatschappil NV by the Court of Justice of the European Union argues that the premature failure of a component of an aircraft is not a circumstance that cannot be foreseen, and as not being under the control of the carrier because the carrier is obliged to ensure and maintain the aircraft in a fully operational as per the maintenance requirements.

However, some technical issues may in our opinion fall within these exceptional circumstances. For example, if the manufacturer of the aircraft or a competent authority would communicate when parts are already in use that they are affected by a hidden defect affecting flight safety.  The same would hold for damages caused by acts of sabotage or terrorism.

On the other hand, preventing possible damage or repairs including the replacement of a defective components prematurely, does not fall outside of the control of the carrier concerned, since the latter has the burden to maintain and keep the proper functioning of aircraft.

In conclusion in cases where the airline does not cover the damages provided for by the European regulation, the passengers can lodge a claim in court.  They can ask that the provisions of Regulation no. 261/2004 be applied, to them to recover the damages suffered by a flight delay.  Currently despite the provisions of the Regulation in our experience it is still necessary for the passenger to prove certain aspects regarding the delay, and even then, persuade the carrier to pay compensation.

Ana Maria Alexandru

Nicholas S Hammond

office@hammond-minciu.com