After the stranded passenger

http://www.trust7.com/en/foren/faq_and_important_links/compensation_or_no_compensation

the ECJ (European Court of Justice) clarified another important issue at the heart of the daily struggle of many airline passengers (Case C-402/07, C-432/07, Sturgeon v Condor/ and Böck v Air France, ECJ 19 November 2009).

What if your flight gets delayed for three hours or more? Could you claim monetary compensation as specified in Article 7 of Regulation (EC) No 261/2004 from your airline?

Here again the European Union’s Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights was unclear about it.

On the one hand, compensation was granted if the flight had been cancelled ( Article 5 I (c) with explicit reference to Article 7 of Regulation (EC) No 261/2004). On the other hand, however, the Regulation, did not explicitly envision compensation in the case of delay. Not surprisingly a huge argument ensued as to when there is a cancellation and when a "delay" could be regarded as being effectively a „cancellation". Some national courts and scholars argued that a "big delay" would be legally a „cancellation" thus allowing for compensation. Also, some courts and scholars additionally looked at the particular circumstances of the flight as to whether the delay could be regarded as a cancellation: Had the checked-in luggage be returned? Had the composition of the passengers changed in comparison to the initially scheduled flight? Have new boarding cards been issued?

The ECJ, in its judgment, rejected a distinction on those terms. A cancellation, according to the ECJ, is only given where the planning for the original flight is abandoned and the passengers from that flight join passengers on a flight which was also planned – but independently of the flight for which the passengers so transferred had made their bookings.

But the Court did not stop here and leave the passengers in the cold. Rather, it embarked on an interpretation of the whole Regulation, especially its objective to strengthen the rights of the passengers.

It pointed out that passengers whose flights have been cancelled and passengers affected by a flight delay suffer similar damage, consisting in a loss of time, and thus find themselves in comparable situations for the purposes of the application of the right to compensation laid down in Article 7 of Regulation No 261/2004.

Those passengers thus acquire a right to compensation when they suffer a loss of time equal to or in excess of three hours in relation to the duration originally planned by the air carrier.

The Court ultimately came to the conclusion that the relevant Articles (Articles 5, 6 and 7 of Regulation No 261/2004) must be interpreted in a way that that passengers whose flights are delayed may rely on the right to compensation where they suffer a loss of time equal to or in excess of three hours. Put differently, the passengers of delayed flights are entitled to compensation where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.

The Court also addressed the issue of whether the Airline was exempt from the obligation to pay compensation. The Airline argued as a defense that the technical problems that caused the delay were ‘extraordinary circumstances’ within the meaning of Article 5 of Regulation No 261/2004 relieving it from the burden to pay compensation. The Court affirmed that according to Article 5 of Regulation No 261/2004 a delay does not entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier. The Court, however, also made clear that a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

As a side note, the Airline is allowed to reduce the compensation when the passengers are offered a re-routing to their final destination on an alternative flight. This is however only possible if the overall delay is kept within certain limits (Article 7 (2) of Regulation No 261/2004).

Quick Summary:

Passengers whose flights are delayed are entitled to compensation where they suffer a loss of time equal to or in excess of three hours.


The text of the Regulation (EC) No 261/2004:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0261:EN:HTML


contact(at)kanzlei-jain.de

Hello Vakalat,

Thanks a lot for this excellent piece of info as I was not really informed that you could get a compensation for delays in excess of 3H.

In fact, I did face such a situation in mid last year (2009) while flying with Emirates from DE to IN, where owing to a delay in departure and subsequent missed connection at Dubai, I could reach my final destination nearly 7H late.

Now my question is, do I still qualify for a compensation (now that it's over 6M old)? If so, could you please suggest what's the procedure to place such a claim?

Thanks again.

Cheers.

Hi Vakalat,

Thanks for the info.

Doubts from my end,

1. will this stand for the flights arriving to germany aswell?

Coz, have come across flight delay or even cancellation while arriving to Germany.

2. Is this rule valid to all carriers...US airlines? Emirates... ? OR only German carriers

Article 3 of Regulation No 261/2004 outlines the scope of the Regulation. The Regulation applies if the flight takes off in a Member State of the EU. It does not apply to flights by a non-EU air carrier into the EU. The Regulation applies to operating air carriers licensed in a Member State (so called Community Carrier) flying from outside the EU into the EU. However, passengers of such flights are not entitled to the provisions of the Regulation where benefits or compensation and assistance are given on the basis of local regulations in non-EU countries. The legislation of the third country therefore needs to be respected. If such local legislation is absent in a third (non-EU) country, the Regulation will apply.

Regarding the statute of limitation local national law applies. Here we have the usual three year time bar. Contrary to that view a district court in Germany (Landgericht Darmstadt) held that a two year time bar is applicable referring to International law, namely, Article 35 of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999).


contact(at)kanzlei-jain.de