Compensation for flight delays

Delay-hit air passengers experience inconvenience and frustration whether they are business travellers or holidaymakers. The majority of flight delays are due to bad weather, a smaller part to strikes, the rest of the cases can be avoided by airlines.

Delays due to storm or fog will not lead to airlines being liable for compensation
- Josette Grech

Travellers are protected at EU level from flight cancellations. EU regulation adopted in 2004 establishes rules applicable across the EU on compensation and assistance to passengers and sets out the entitlements of air passengers when a flight that they intend to travel on is cancelled or when they are denied boarding due to overbooking.

Subsequent rulings by the Court of Justice of the European Union have widened the interpretation of the regulation by establishing the entitlement to compensation to passengers whose flights are delayed similarly to those whose flights are cancelled. The line of reasoning is based on the principle of equal treatment – in the Court’s view, passengers whose flights are delayed and those whose flights are cancelled are similarly inconvenienced and should accordingly be treated the same.

The consumers’ position has been further crystallised as a result of a recent judgment delivered by the CJEU. The ruling came about after Lufthansa, TUI Travel, British Airways, EasyJet and IATA contested, through separate proceedings in the courts of Germany and the UK, the obligation to compensate passengers whose flights are delayed. Both cases were referred by the national courts to the European Court.

Earlier this year, Advocate General Bot handed down a much anticipated opinion and in no uncertain terms concluded that where passengers suffer, on account of a delayed flight, a loss of time equal to or in excess of three hours, they are entitled to compensation in line with the thresholds set at EU level for flight cancellations. He argued that passengers whose flights are cancelled and passengers affected by a flight delay suffer loss of time in a similar way and they are both entitled to the same level of compensation.

He argued that compensating delayed passengers will not result in an arbitrary and unduly severe financial burden on air carriers, particularly since the frequency of delays of more than three hours, which confer entitlement to compensation, appear to be limited.

Adopting the opinion, the Court ruled that if passengers reach their final destination three or more hours after the scheduled arrival time, they can claim fixed compensation from the airline. In confirming its interpretation of EU law and in line with its previous rulings, the Court reiterated that passengers delayed suffer similar inconvenience to those on cancelled flights and therefore should be similarly recompensed.

Therefore, where an air carrier operates or intends to operate a flight either departing from or landing in an EU member state, and that flight is subject to a delay of three hours or more, each passenger will be entitled to compensation on the following basis: €250 for all flights of 1,500 km or less; €400 for all intra-community flights of more than 1,500 km and for all other flights between 1,500km and 3,500km; and €600 for all other flights.

The Court also established the right of claimants, whose potential claim arose before the European ruling, to benefit from the effects of this ruling unless their claim is already statute barred.

In the event of a flight delay, the airline can rely on the defense of extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken, in order to avoid paying compensation.

Delays due to storm or fog will not lead to airlines being liable for compensation. Unlike bad weather, however, technical problems which give rise to delay will rarely give the carrier a defence. The judgment resolves a grey area in aviation regulation and boosts customer confidence in air travel.

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


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