It is the air carrier’s obligation to inform a passenger that a flight has been cancelled, the Court of Justice of the European Union (CJEU) has recently affirmed. Failure to do so within the time limits set by EU law could expose the said carrier to claims of compensation by the passenger.
EU law makes provision for that compensation and assistance which an airline is obliged to provide to passengers travelling from European airports or from a third country into Europe in the eventuality of denied boarding, cancellation of a flight or long delay of a flight.
In the case of flight cancellation, the law makes it clear that the passengers concerned are entitled to a number of rights. In such situations, passengers are not only entitled to reimbursement of the cost of the ticket within seven days or a return flight to the first point of departure or re-routing to their final destination, the necessary care including refreshments, hotel accommodation and the likes, but also monetary compensation. The amount of compensation ranges from €250 for all flights of 1,500 kilometres or less to €400 for all intra-EU flights of more than 1,500 kilometres, and for all other flights between 1,500 and 3,500 kilometres to €600 for all other flights.
The law also makes it clear that passengers are not entitled to such financial compensation if they are informed of the cancellation at least two weeks before the scheduled time of departure.
An individual booked a flight through an online travel agency for a return flight from Amsterdam Schiphol (Netherlands) to Paramaribo (Surinam), operated by the airline SLM. The outbound flight was scheduled to depart on 14 November 2014. On 9 October 2014, SLM informed the travel agency that the flight had been cancelled.
On November 4, 2014, the would-be passenger was informed of the cancellation by the travel agency. Relying on EU law, the individual sought payment from SLM of the flat-rate sum of €600 by way of compensation. SLM refused to pay him compensation on the basis that the travel agency had been informed of the cancellation on October 9, 2014.
The travel agency refused to accept any liability towards its client, claiming that it was only responsible in so far as the conclusion of contracts between passengers and air carriers is concerned and it was not responsible for changes to flight schedules.
According to the travel agency, the responsibility for informing passengers in such situations fell to the air carrier, to whom the passenger’s email address had been sent in the booking file.
The individual filed proceedings in the national court in Netherlands requesting a court order requiring SLM to pay the compensation.
The national court observed that EU law does not specify the conditions in terms of which an air carrier is required to inform passengers in the event of the cancellation of a flight in those cases where the contract for carriage was entered into through a travel agency or a website. The court thus decided to request guidance on the matter from the CJEU.
The CJEU pointed out that, in terms of EU law, the air carrier bears the burden of proving that it had informed passengers of the cancellation of the flight in question as well as the period within which it did so.
It affirmed that if the air carrier is unable to prove that it informed the passenger concerned that his flight had been cancelled and this at least two weeks before the scheduled time of departure, as required by law, the air carrier must pay compensation.
The Court observed that this applies not only when the contract for carriage has been entered into directly by the passenger concerned and the air carrier, but also when that contract has been entered into through a third party such as an online travel agency. It did, however, also note that this is without prejudice to the air carrier’s right to seek compensation, in terms of national law, from any person who caused the air carrier to fail to fulfil its obligations.
EU law therefore does not in any way restrict the air carrier’s right to seek compensation from, for example, a tour operator with whom that air carrier has a contractual relationship.
With summer just round the corner, it is important for holiday makers to be fully aware of what their rights are should the air carrier with whom they booked their flight fails to deliver for some reason or other.
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.
mariosa@vellacardona.com