Compensation for flight delays

Mark Grech wrote saying he was recently booked on an Air Malta flight from Malta to Vienna, which was delayed by four hours.

He said refreshments and a voucher for the next Air Malta flight were given as a form of compensation.

He refers to a judgement of the European Court of Justice delivered last November which ruled that airlines in the European Union must compensate victims of long delays for which they are responsible.

He asks whether the ruling applies in his case.

In synthesis, the question here is whether a passenger whose flight is delayed is entitled to compensation by the airline. EU law provides that when airlines reasonably expect delays of two, three or four hours they are obliged to give passengers meals and refreshments as well as accommodation if an overnight stay is required.

When the delay is of five hours or more, passengers are also entitled to a refund of the ticket for the part of the trip that was not made or for the entire trip if their original plans have been ruined, that is, the flight no longer serves any purpose in relation to the passenger's original travelling plans.

This reimbursement must be paid within seven days.

As such, EU law does not specifically provide for compensation in the case of delays. It only provides for compensation in cases where flights are cancelled and where a passenger with a valid ticket is denied boarding in cases where the flight is overbooked.

In the case referred to by the reader, which was decided last November (actually they were two joined cases), the European Court was asked to decide in what circumstances is a delay of a planned flight no longer to be regarded as a delay but as a cancellation, thereby entitling passengers for compensation.

In these cases, passengers were first informed that their flight was cancelled and, subsequently, given alternative flights, resulting in an overall delay in arrival by 22 and 25 hours respectively.

The airlines concerned contended that no compensation was due because these were not flight cancellations but delays. They also argued that, even if the flights had to be considered as cancelled, compensation was still not due because the cancellations were attributed to "extraordinary circumstances" which, under EU law, would exempt them from paying compensation.

In its judgement, the court tackled two distinct issues.

The first was the clarification of the meaning of a "flight delay". The court held that one can speak of a delay in cases where a flight is operated under the original planning (that is, same flight number, same bookings and so on) and its actual departure is later than its original scheduled departure time.

It follows that a flight that is simply delayed - no matter how long the duration of the delay - cannot be considered as cancelled.

But, equally, it also follows that when delayed flights are changed altogether, such as when passengers are put on other flights with another flight number or on other airlines, then one can no longer speak of delays but more likely of cancellation.

The second issue tackled by the court was the extent to which compensation is due in cases of delays.

The court said that, although it is true that the law does not explicitly grant compensation in cases of delays, the law does link compensation to the notion of "long delays" in its preamble (which is the explanatory introduction of the law).

Indeed, it said that passengers whose flight is delayed may suffer similar damage to those whose flight is cancelled and should, therefore, be treated similarly.

On this basis, the court ruled that passengers whose flights are delayed may be entitled to compensation in cases where they reach their final destination with a delay of three hours or more.

The court recalled that airlines are exempt from this obligation to pay compensation if the cancellation or long delay is caused by extraordinary circumstances beyond their control. However, this does not normally include technical problems of aircraft.

Moreover, airlines may also pay half the compensation stipulated by law in certain cases, such as, if the flight reaches its destination no more than two hours behind schedule in the case of flights of up to 1,500 kilometres.

The reader claims that his flight to Vienna (which is of less than 1,500 kilometres) was delayed by four hours.

Taking into account this latest judgement of the European Court which, for the first time, extended compensation to cases of delays, the reader should have been entitled to compensation because he reached his destination with a delay of more than three hours.

The compensation to which he is entitled in this case is €250 and the airline is exempt from paying it only if it proves that the delay was caused by extraordinary circumstances beyond its control.

Dr Busuttil is a Nationalist member of the European Parliament.

www.simonbusuttil.eu