The summer season comes, as every year, with a crowding of the airports, as the airlines try to make available to tourists as many routes and travel possibilities during the summer period, in order to satisfy everyone’s needs. However, for various reasons, which may be related to infrastructure, human resources, restrictions imposed by military organizations or simply poor organization, some flights undergo changes or cancellations, as the case may be.
In these cases, those who have purchased a plane ticket are faced with a problem that most of the time they do not know how to manage. Of course, in situations where flight delays or changes are minor, many don’t see it as a real problem and are happy to finally get to their destination. However, those who are no longer able to enjoy the purchased ticket, due to the changes that have occurred, risk losing the benefit of other services purchased, thus being put in an unpleasant situation where probably the entire planned and paid stay turns into an event long awaited in a stress reason.
To prevent such inconveniences, or rather to ensure the repair of damages caused by such inconveniences, Regulation (EC) no. 261/2004 establishes a mandatory mechanism that ensures a high level of protection in the event of denied boarding and cancellation or prolonged delay of flights.
There are three known cases in which passengers risk to no longer benefit from the services purchased from the airlines, these being provided by the Regulation, in order to grant rights in such situations. Thus, it is about denied boarding, flight cancellation and flight delay.
If an air transport operator anticipates a possible denial of boarding, then it must first appeal to volunteers willing to give up their bookings in exchange for allowances granted under conditions to be agreed between the passenger concerned and the air carrier. airline. Volunteers are assisted in accordance with the Regulation, the assistance being provided in addition to the allowances owed by the airline.
If the number of volunteers is insufficient to allow other passengers with reservations to board, the air carrier may refuse boarding to passengers against their will. In the latter situation, the air transport operator immediately compensates the passengers who were denied boarding.
The compensation provided in this situation is 250 euros for flights of 1,500 km or less, 400 euros for all intra-Community flights over 1,500 km and for all flights between 1,500 and 3,500 km and can reach up to 600 euros in certain conditions.
Also, in addition to these compensations, passengers are granted a right to choose between a return flight to the original point of departure as soon as possible or reimbursement, within seven days, of the entire cost of the ticket, and also, the refund of the price of the tickets related to the journeys not carried out, when the flight becomes useless in relation to the original travel plan. Moreover, the Regulation provides for a right regarding rerouting under comparable transport conditions, to the final destination, as soon as possible or rerouting to the final destination, at a later date, at the choice of the passenger, subject to the existence of available seats.
In case C-829/19, WZ v. Austrian Airlines AG, the Court of Justice of the European Union issued a judgment on 22.04.2021, in which it emphasized that a diverted flight landing at an airport other than the one scheduled initially, but serving the same city, urban agglomeration or region, cannot entitle the passenger to compensation for flight cancellation.
However, a passenger on a flight diverted to an alternative airport serving the same city, urban agglomeration or region as the originally intended airport has in principle a right to compensation under this Regulation when he arrives at his final destination three hours or later than the arrival time originally provided by the actual air transport operator.
Articles 5 and 7, as well as Article 8 paragraph (3) of Regulation no. 261/2004 must be interpreted in the sense that, in order to determine the extent of the arrival delay suffered by a passenger of a diverted flight that landed at an airport different from the one originally scheduled, but serving the same city, urban agglomeration or region, it is necessary to take as reference the time at which the passenger actually arrives, following his transfer, at the originally intended airport or, if applicable, at another nearby destination agreed with the actual air transport operator.
In the event of a flight cancellation, passengers are given the right to choose between a refund of the ticket price and a return flight, under conditions identical to those presented above. They must also be provided with meals and refreshments, directly proportional to the waiting time, as well as the right to two free telephone calls and to send messages by telex, fax or e-mail free of charge. In the event of a rerouting, when the anticipated departure time of a new flight is at least one day after the scheduled departure of the canceled flight, the Regulation provides that passengers are offered free hotel accommodation, as well as transport between the airport and the place of accommodation.
Also, in the event of a flight cancellation, passengers are entitled to compensation between 250 and 600 euros, unless they are informed of the cancellation at least two weeks before the scheduled departure time. Compensation is also not granted to passengers when they are informed of this cancellation between two weeks and seven days before the scheduled time of departure and are offered a rerouting that allows them to depart no later than two hours before the scheduled departure time and arrive at the final destination less than four hours after the scheduled arrival time.
The regulation also provides for a situation in which passengers are not recognized as entitled to compensation, namely when they are informed of this cancellation less than seven days before the scheduled departure time and are offered a rerouting that allows them to depart at the latest one hour before the scheduled departure time and arrive at the final destination less than two hours after the scheduled arrival time. In any case, the air transport operator is not obliged to pay the mentioned compensations if it can prove that the cancellation is caused by exceptional circumstances that could not be avoided despite the adoption of all possible measures.
In this regard, it emerges from the Court’s relatively recent jurisprudence (Judgment of March 23, 2021, Airhelp, C ‑28/20, point 39) regarding the notion of “exceptional circumstances” within the meaning of Article 5 paragraph (3) of Regulation no. 261/2004 that events whose origin is “internal” must be differentiated from those whose origin is “external” to the actual air transport operator.
It thus falls within the scope of this notion, in the context of the occurrence of such “external” events, those resulting from the activity of the air transport operator and from external circumstances, more or less frequent in practice, but over which the air transport operator has no control because they originate from ‑a natural event or the act of a third party, such as another air transport operator or a public or private entity that intervenes in air or airport activity .
Therefore, when an airport’s fueling system is managed by the latter or by a third party, the generalized fueling deficiency must be considered an event whose origin is external to the air transport operator and therefore beyond under its effective control, according to the Court’s decision of 7.07.2022 in case C-308/21, SATA International – Azores Airlines SA.
But in two other recent cases, C-156/22, TAP Portugal v. Flightright GmbH and C-157/22, TAP Portugal v. Myflyright GmbH, the Court of Justice of the European Union issued a judgment on 11.05.2023, through which it assessed that Article 5 paragraph (3) of Regulation (EC) no. 261/2004 must be interpreted in the sense that the unexpected absence, due to illness or death, of a crew member indispensable for the operation of a flight, occurring shortly before the scheduled departure of this flight, does not fall within the scope of the notion of “exceptional circumstances “, in the sense of that provision.
Thus, the actual absence ‑, due to illness or death, of one or more crew members, be it unexpected, and not the precise medical cause of this absence, is what constitutes an event inherent in the normal exercise of the transport operator’s activity respectively, so that the latter must expect the occurrence of such contingencies in the planning of its crews and the work schedule of its personnel.
Regarding the last situation, namely flight delay, there are several scenarios where passengers benefit from some rights under the Regulation. Thus, when an air transport operator anticipates a possible delay of two hours, in the case of flights of more than 1,500 km or less, of three hours or more, in the case of intra-Community flights of more than 1,500 km and of any other flights between 1,500 and 3,500 km, or four hours or more, in the case of flights that do not fall under the listed assumptions, the air carrier has various obligations towards passengers.
Thus, passengers must be offered free meals and refreshments, directly proportional to the waiting time, as well as the possibility to make two free phone calls and send messages. If the anticipated departure time is at least one day after the originally announced departure time, passengers benefit from free hotel accommodation and transportation between the airport and the place of accommodation. Also, when the delay is at least five hours, passengers have the right to choose between a return flight to the original point of departure as soon as possible or reimbursement, within seven days, of the full cost of the ticket and, also the refund of the price of the tickets related to the trips not taken, when the flight becomes unnecessary in relation to the original travel plan.
An important point to note is that passenger rights are not limited exclusively to the specific provisions of the Regulation, but can be interpreted and extended by national courts depending on the circumstances. So, in certain cases, national courts have decided that passengers can claim additional compensation in case of flight cancellation for the additional expenses incurred by them.
Thus, in case C-354/18, SC Blue Air ‑ Airline Management Solutions SRL, the Court held that Article 7 paragraph (1) letter (b) of Regulation (EC) no. 261/2004 must be interpreted in the sense that the amount provided for by this provision does not aim to compensate for a loss such as an unpaid salary, secondly, this loss may be subject to the additional compensation provided for in Article 12 paragraph (1) of Regulation no. 261/2004 and, thirdly, the referring court has the task of determining and assessing the various constitutive elements of the aforementioned damage, as well as the extent of its compensation, taking into account the relevant legal basis.
Thus, it was concluded that Regulation no. 261/2004, in particular the second sentence of Article 12(1) thereof, must be interpreted as allowing the competent national court to deduct the compensation granted under this regulation from the additional compensation, but not obliging it to do so, the said regulation not imposing on the competent national court conditions on the basis of which it could proceed with this reduction.
These additional expenses differ depending on the purpose of the trip and can be represented by prepaid accommodation costs, alternative transport to the destination, even if the means of transport differs, as well as other financial losses directly caused by the cancellation or change of the flight. Therefore, those who find themselves in these unpleasant situations can obtain reimbursement of additional expenses based on the principle of contractual liability, when the flight operators are directly liable for the damage caused by the failure to fulfill the obligations assumed and by changing or canceling the flights.
Considering the fact that there are situations where passengers are not informed about their rights, there is a risk that they will not benefit from all the rights provided by the Regulation and other laws in the event of changes or cancellation of flights. For this reason, it is recommended to consult with a lawyer in order to identify all the rights that passengers in such an unfortunate situation have.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by av. Diana Badiu and by av. Bogdan Șuta, both from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 17 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro. All rights for materials published on the company’s website and via social media belong to Costaș, Negru & Asociații, reproduction is permitted for information purposes only and with full and correct citation of the source.
