Air passengers' compensation

Airline passengers whose flights are delayed by more than three hours are entitled to compensation. The European Court of Justice so held on a reference for a preliminary ruling by a German court in two connected cases, brought before the German courts by travellers hit by adverse events while in transit.

The transatlantic flights with Condor and Air France on which the claimants were booked failed to take off as scheduled, and the claimaints subsequently flew on later lights, reaching their destination more than 20 hours after the schedule arrival time. They brought a claim in the German courts for compensation from the respective airlines under EU Regulation 261/2004.

This regulation binds an operating air carrier to give compensation to passengers whose flights are cancelled, except in those situations where such carrier proves that the cancellation is caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken. The claimants argued that the EU's regulation on compensation for cancelled flights should apply equally to their circumstances, even though their flights were delayed not cancelled.

On the other hand, the defendants refused the requests for compensation on the ground that the flight in each case had been delayed and not cancelled, and the regulation did not provide for compensation in the event of delay. Upholding the claim of the travellers, the ECJ held that passengers affected by delays experience the same loss of time as those affected by cancellation. Therefore, these airline passengers were declared to be entitled to the same compensation as those whose flights are cancelled.

In reaching its decision, the court held that there was no justification for treating passengers whose flight is delayed any differently when they reach their final destination three hours or more after the scheduled arrival time. On the basis of this reasoning, delayed flights will henceforth have to be regarded as cancelled, thus giving rise to compensation, in circumstances where the airlines arranged for passengers to travel on a different flight.

Airlines, however, will escape liability if they can show that the delay was caused by extraordinary circumstances beyond their control and which could not have been avoided even if all reasonable measures had been taken. The European court held that technical problems could not be regarded as falling under the exception of "exceptional circumstances".

In conclusion, the court held that a delayed flight, irrespective of the duration of the delay could not be regarded as cancelled where the flight was operated in accordance with the air carrier's original planning. However, passengers whose flights were delayed could be treated, for the purposes of the application of the right to compensation, as passengers whose flights were cancelled and they could thus rely on the right to compensation laid down in the regulation where they suffered, on account of a flight delay, a loss of time equal to or in excess of three hours.

Mishaps at the airport can strike at any time. Therefore it is to all travellers' peace of mind that they, at least, can now be assured compensation when such mishaps occur for reasons beyond their control.

Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.