“Divorce Italian Style” is a classic of Italian cinema, from 1961, with Marcello Mastroianni, Daniela Rocca, Stefania Sandrelli or Ugo Torrente in the main roles. And the level of intensity in this film is often reached during the summer season, when flights scheduled to reach a vacation destination are canceled or delayed.
Within our professional law firm, “Costaș, Negru & Asociații”, litigations generated by airline companies are a constant in our activity, completing the vast areas of law in which we operate. Thus, we are on a continuous attempt to satisfy the interests of the passengers, but also to create a unified jurisprudence at the national level, so that the European legal norms that offer passengers compensation rights are fairly applied and interpreted by the courts.
The legal considerations issued at European level can be found in Regulation (EC) no. 261/2004 of the European Parliament and of the Council of February 11th, 2004, establishing common rules for compensation and assistance for passengers in the event of denied boarding and cancellation or prolonged delay of flights and repealing Regulation (EEC) no. 295/91.
A first principle, the recurring foundation of actions brought to trial, is the one established by article 5 of Regulation (EC) no. 261/2004, which dictates that, in the event of a flight cancellation, the passenger is entitled to receive compensation from the air transport operator. Equally, in this situation, the passengers concerned must be assisted by the air carrier, including in the event of rerouting, assuming the anticipated departure time of a new flight is at least one day after the departure scheduled for the canceled flight.
However, the three special cases that are an exception to passenger protection measures must be taken into account. Specifically, compensation for flight cancellation will not be granted:
- if the passenger was informed of this cancellation at least two weeks before the scheduled departure time;
- if the passenger is informed of this cancellation between two weeks and seven days before the scheduled time of departure and is offered a rerouting that allows him to depart no later than two hours before the time of departure scheduled and arrive at the final destination less than four hours after the scheduled time of arrival;
- if the passenger is informed of this cancellation less than seven days before the scheduled departure time and is offered a rerouting that allows them to depart no later than one hour before the scheduled departure time and reach their destination final in less than two hours after the scheduled arrival time.
In all the cases where passengers are informed of their cancellation, they must also be given explanations regarding alternative transport possibilities, and the burden of proving that the passenger was indeed informed of the flight cancellation, indicating the precise time, belongs to the air carrier.
Another notable exception is established by the considerations of the third paragraph of article 5 of Regulation (EC) no. 261/2004, which provides that the air transport operator is not obliged to pay compensation if it can prove that the cancellation was caused by exceptional circumstances that could not be avoided despite the adoption of all possible measures. The considerations of the Court of Justice of the European Union must also be taken into account, which ruled, in case C‑474/22, Azienda regionale sarda trasporti, that in order to benefit from the compensation provided for in the regulation, in the event of a prolonged flight delay (three hours or more after the arrival time originally provided by the air transport operator), an air passenger must have presented himself in good time at check-in or, if he has already checked in online, he must have presented himself in good time at the airport, to a representative of the actual air transport operator.
Basically, the Court imposed the need to compensate for a period of time that the passenger concretely lost, by actually going to the airport and performing the registration and check-in operations. The situation in which he does not carry out this physical movement does not fall, in accordance with the provisions of the Court of Justice of the European Union, among the cases in which the air operator is obliged to pay compensation. The reasoning bears criticism, given that the flight delay causes a disruption to the passenger’s schedule anyway, regardless of whether the passenger was aware of the flight delay before or after going to the airport. In this sense, both the legislative and jurisprudential developments in this context remain in the increased attention we pay to the disputes in which we provide legal assistance.
In a case from the activity of our company, the Cluj-Napoca Court “charged” the airline company’s passivity in proving the exceptional circumstance that required the cancellation of the flight, ruling that “in the case brought to trial, the court finds that none of the parties dispute the cancellation of the flights and at the same time, no such exceptional circumstances were invoked by the defendant that would remove the obligation to grant compensation for the cancellation of the flights. With regard to the defendant, the court notes that it did not propose any evidence to prove the fact that she fulfilled its obligation to compensate the plaintiffs for the cancellation of the flights, nor the existence of exceptional circumstances that would have led to the cancellation of the flights“.
Also relevant is the reasoning of the same court to state that “the defendant made a transaction offer to the plaintiffs, thus recognizing the plaintiffs’ right to benefit from the compensation provided for by Regulation (EC) No. 261/2004 for canceled flights”. Thus, the passenger is not obliged to accept the transaction offered by the air operator just because this method would be faster, at the expense of a full and fair compensation obtained through judicial means. Moreover, the settlement offer signifies a true acknowledgment of fault and damage caused to the passenger by the airline.
In the context of flight delays, it was held that the crucial element that led the Court to assimilate the prolonged delay to the cancellation of a flight is related to the fact that the passengers of a flight affected by a prolonged delay suffer, like the passengers of a canceled flight, a damage that materializes through an irreversible loss of time, equal to or greater than three hours, which can only be remedied by compensation.
In case of flight delay, without it being subsequently cancelled, Article 6 of the Regulation establishes the obligation for passengers to be offered support by the air transport operator, depending on the duration of the delay and the distance to be covered, in any of the cases where an air carrier anticipates a possible delay of a flight beyond the scheduled time of departure as follows: (a) for two hours, in the case of flights of more than 1 500 kilometers or less; (b) for three hours or more, in the case of all intra-Community flights of more than 1 500 kilometers and of any other flights between 1 500 and 3 500 kilometres; (c) for four hours or more, in the case of all flights not falling within (a) or (b).
The Romanian courts treat cases of delay seriously, given the fact that the lost time of the passenger constitutes a damage caused to his interests. In another case within our activity, the Cluj-Napoca Court considered as relevant in the resolution of the case the jurisprudence of the C.J.U.E. in related cases C-402/07 and C-432/07, Christopher Sturgeon, Gabriel Sturgeon and Alana Sturgeon vs. Condor Flugdienst GmbH and Stefan Böck and Cornelia Lepuschitz vs. Air France SA, this establishing that “Articles 5, 6 and 7 of Regulation no. 261/2004 must be interpreted in the sense that passengers of delayed flights can be assimilated to passengers of canceled flights in order to apply the right to compensation and can thus invoke the right to compensation provided for in Article 7 of this regulation when they suffer, as a result of a flight delay, a loss of time equal to or greater than three hours, in other words when they arrive at their final destination three hours or more after the arrival time originally provided by the air transport operator. However, such a delay does not give rise to a right to compensation in favor of passengers if the air carrier can prove that the prolonged delay is caused by exceptional circumstances which could not have been avoided despite the adoption of all possible measures, in other words circumstances which escapes the effective control of the air transport operator. Article 5 paragraph (3) of Regulation no. 261/2004 must be interpreted in the sense that a technical problem occurring to an aircraft, which causes the cancellation or delay of a flight, does not fall within the scope of the notion of “exceptional circumstances” within the meaning of this provision unless this problem is the result of events which, by their nature or origin, they are not inherent in the normal exercise of the activity of the air transport operator in question and escape from its effective control.”. As a result, they have the right to the compensation provided by art. 7 of Regulation (EC) no. 261/2004 both passengers of canceled flights and passengers of delayed flights.
The Court also notes that, in the event of a flight cancellation, the air passengers’ right to compensation provided for in Article 5 paragraph (1) letter (c) of Regulation no. 261/2004 and the correlative obligation of the actual air transport operator to pay the compensation provided for in Article 7 paragraph (1) of this regulation derive directly from the latter. Therefore, it cannot be considered that the passenger’s right and the airline’s obligation to compensate have their basis in a contract that might have been concluded between the two parties in question, nor, a fortiori, in the culpable non-performance of such a contract by the latter. The airline will not be able to refuse compensation on the grounds that it would have fulfilled its assumed contractual obligations, given the fact that the passenger’s right results from the very obligation to apply Regulation no. 261/2004.
With regard to court costs, the Court held that, as for the parties in the main litigation, the procedure has the character of an incident that occurred at the referring court, it is within its competence to rule on court costs. In the cases of our company’s activity, the courts have ruled positively regarding the granting of these court costs, given the fact that they were generated by the passenger’s need to claim his own compensation rights in court.
Furthermore, specifying specifically the amount of compensation granted, when they are requested pursuant to Article 7 of Regulation (EC) no. 261/2004, passengers receive compensation in the amount of:
- 250 euros for all flights of 1,500 kilometers or less;
- (b) 400 euros for all intra-Community flights over 1,500 kilometers and for all flights between 1,500 and 3,500 kilometers; • (c) 600 euros for all flights not covered by letter (a) or (b).
With regard to the way in which the passenger can recover the damage he suffered, he owns the option to file a lawsuit, contradicting the airline with which he originally contracted. In the case he makes use of this option, the jurisdiction of the court, according to article 113 of 1 of the Romanian Civil Procedure Code, in addition to the courts provided for in articles 107-112, the following are also competent: (…) point 6. the court of the place of departure or arrival, for claims arising from a transport contract.
As for the courts, a unified practice has already been outlined with regard to similar disputes, by reference to the jurisprudence of the Court of Justice of the European Union in this matter – the judgment of July 9, 2009 pronounced in the case C-204/08, Peter Rehder vs. Air Baltic Corporation, and at the same time, to the provisions of article 148 para. (2) and (4) of the Romanian Constitution. The same reasoning was also adopted by the Luxembourg court which decided that art. 5 point 1 lit. (b) the second indent of Regulation (EC) no. 44/2001 must be interpreted in the sense that, in the case of an air transport of persons from a member state with a destination in another member state, carried out under a contract concluded with a single airline, which is the actual transport operator, the court competent to judge a claim for compensation based on this transport contract and Regulation (EC) no. 261/2004 of the European Parliament and of the Council is, at the choice of the claimant, the court in whose jurisdiction the place of departure or the place of arrival of the plane is located, as these places are agreed in the respective contract.
Another possibility that the passenger benefits from in order to repair his damage is the possibility to turn to the debt recovery companies, by representing the passengers damaged by the airlines. In this sense, in case C-11/23, Eventmedia Soluciones, the Court of Justice of the European Union concluded that in order to ensure a high level of protection of air passengers and to allow them to effectively exercise their rights, it is necessary to guarantee the passenger affected by a flight cancellation the freedom to choose the most effective way to defend his right, allowing him in particular to decide to go directly to the actual air transport operator, to refer the competent courts or, where this is provided for by the relevant domestic law, to assign its claim to a third party in order to relieve itself of the difficulties and costs that may deter it from taking personal steps against this transport operator in exchange for a limited financial stake.
In conclusion, we recommend the judicial way as the optimal way to recover the compensations granted for the damages caused to the passengers by the cancellation or delay of the flights. The legal action consists in the correct inclusion in the provisions of Regulation (EC) no. 261/2004, and the chances of success are maximized by the pertinent drafting of the introductory action. Thus, the possible compromises resulting from the passenger’s acceptance of the transaction proposed by the airline operator are avoided, just because this method could be the fastest, with the consequence of partial recovery of the damage suffered by the passenger. Equally, the judicial procedure offers full transparency on the expenses submitted by the passenger and actually recovered, along with the compensation provided by the applicable European rules.
This article was prepared for the Blog of Costaș, Negru & Asociații, by Ms. Iulia Domnici, an attorney with the Arad Bar Association.
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team composed of 20 lawyers and consultants. Details regarding legal services and team composition can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for informational purposes and with correct and complete citation of the source.
