| European Union regulation: | |
| Regulation (EC) No 261/2004 | |
|---|---|
| Regulation establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights | |
| Made by | European Parliament & Council |
| Made under | Art. 80(2) TEC |
| Journal reference | |
| History | |
| Made | 2004-02-11 |
| Came into force | 2005-02-17 |
| Preparative texts | |
| Reports | |
| Other legislation | |
| Replaces | Regulation (EEC) No 295/91 |
| Amended by | — |
| Status: Current legislation | |
Regulation 261/2004 of the European Parliament and of the European Council of 11 February 2004 established common rules on compensation and assistance to passengers in the event of
It repealed Regulation (EEC) No 295/91, and went into effect on 18 February 2005. It sets out the entitlements of air passengers when a flight that they intend to travel on is delayed or cancelled, or when they are denied boarding to such a flight due to overbooking, or when the airline is unable to accommodate them in the class they had booked.
Contents |
The regulation applies to any passenger:
The protection accorded to passengers departing from OR to an airport located in a Member State should be extended to those leaving an airport located in a third country for one situated in a Member State, when a Community carrier operates the flight and where a community carrier is defined as any carrier licensed to operate within that community.
if that person has:
or
unless
It does not apply to helicopter flights, to any flight not operated by a fixed-wing aircraft.[1]
Before denying passengers boarding involuntarily, the airline is required to first seek volunteers to give up their reservation in return for whatever benefit is negotiated between the airline and the volunteers. Irrespective of such negotiation, such volunteers are also entitled to reimbursement or rerouting as described below.
If insufficient volunteers are obtained, the airline may then proceed to involuntarily deny passengers the right to board their flight. All passengers so denied must be offered all three types of compensation and assistance described below.
If a flight is cancelled, passengers are automatically entitled to their choice of (a.) re-routing to the same destination at the earliest opportunity (under comparable conditions); (b.) later rerouting, at the passenger's convenience, to the same destination under comparable conditions (subject to seat availability); or (c.) a refund of the ticket as well as a return flight to the point of first departure, when relevant. Any ticket refund is the price paid for the flight(s) not used, plus the cost of flights already flown in cases where the cancellation has made those flights of no purpose. Where applicable, passengers are also entitled to refreshments, communication and accommodation as described below. Where re-routing is to another airport serving the same destination, the airline must pay for onward transport to the original airport or to a close-by destination agreed with the passenger. These choices, and the entitlement to refreshments, etc., apply to all cancellations, regardless of whether the circumstances are extraordinary or not.
The airline is also required to pay cash compensation as described below, unless one of the following conditions applies:
The airline must also provide an explanation to passengers of alternative transport.
If an airline expects a flight to be delayed, passengers are entitled to refreshments and communication if the expected delay is more than:
(see notes for flight types).
Additionally, if the flight is expected to depart on the day after the original scheduled departure time, passengers are entitled to accommodation.
If a flight is delayed by five hours, passengers are additionally entitled to abandon their journey and receive a refund for all unused tickets, a refund on tickets used already if the flight no longer serves any purpose in relation to their original travel plan, and, if relevant, a flight back to their original point of departure at the earliest opportunity.
There are three broad categories of compensation and assistance that may be required in the case of cancellations or denied boarding.
Cash compensation is a payment of:
Where rerouting is offered and results in the passenger arriving within two/three/four hours of the scheduled arrival time for a type 1/2/3 flight, the compensation payable is halved.
This payment is strictly a compensation for the customer's inconvenience and does not replace or form a part of either of the following two compensation categories.
Although the wording of the regulation indicates that this payment is not relevant in the case of delays, the judgment of the European Court of Justice in joined cases C‑402/07 and C‑432/07, from 2007, suggests that the regulation must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. This case is under appeal.
The Airline is not obliged to provide Cash compensation in the case of "Extraordinary Circumstances" (Defined earlier in the document), according to Article 5, Paragraph 3.
Rerouting or refunding is, at the passenger's choice, one of the following three compensations:
If a passenger's destination is an airport at a city with multiple airports and rerouting results in the passenger being taken to another of those airports, the airline must also pay for transport for the passenger to the original intended airport or an agreed nearby destination.
When passengers become entitled to these assistances, they must be offered, free of charge,
In the case of a delay, the airline may withdraw or abrogate these entitlements if offering them would delay the flight further.
If a passenger is placed in a higher class than that for which a ticket was purchased, the airline may not request any additional payment.
If a passenger is placed in a lower class than that for which a ticket was purchased, the airline must refund 30/50/75% of the cost of the ticket for type 1/2/3 flights (see notes). For the purpose of this condition, flights to the French overseas departments are not considered to be within the European Union.
Refunds payable under this regulation may be paid in cash, by electronic bank transfer, bank draft, or cheque. With the signed agreement of a passenger, they may also be paid in travel vouchers or other services.
Airlines are obliged to display a notice at their check-in counters stating:
Additionally, when an airline cancels a flight, denies a person boarding, or incurs a delay exceeding two hours to a flight, it is obliged to provide each passenger affected with a written notice setting out their rights under the regulation, and the contact details of the national body tasked with enforcing the regulation.
Flight types are as follows:
with the great circle method being used to determine distance.
In the case Wallentin-Hermann v Alitalia—Linee Aeree Italiane SpA (Case C-549/07) of 22 December 2008,[2], the European Court of Justice in Luxembourg ruled on the interpretation of Article 5 of the regulation relating to cancellations, specifically paragraph 3 which states:
An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
The Court agreed with Wallentin-Hermann that any technical issues during aircraft maintenance don’t constitute "extraordinary circumstances" that would allow airlines to avoid paying passengers compensation for canceled flights. This case therefore closed the loophole which had allowed the airlines to abuse passengers by frivolous interpretation of "technical or extraordinary circumstances"; it further defined the phrase and limited its exploitation. The definition of "technical and/or extraordinary circumstances" by the Court now stands firm and solid: any carrier must prove that the alleged mechanical problem leading to the cancellation was "beyond its actual control", the court affirmed in a statement. In its judgment, the Fourth Chamber of the Court of Justice held:
Extraordinary circumstances” was not defined in the 2004 Regulation, but the phrase was to be interpreted narrowly since article 5(3) constituted a derogation from the principle, indicated in recitals 1 and 2 of the preamble, of protection of consumers, in as much as cancellation of flights caused serious inconvenience to passengers.
Furthermore, in the joined cases of Sturgeon v Condor, and Bock v Air France (C-402/07 and C-432/07),[3] the Fourth Chamber of the European Court of Justice held on 19 November 2009 that despite no express provision in the Regulation to compensate passengers for delay, passengers are now entitled to the compensation as set out in Article 8 for any delay in excess of three hours providing the air carrier cannot raise a defence of "extraordinary circumstances".
"Articles 5, 6 and 7 of Regulation EC 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier."[4]
The fourth Chamber also ruled that under the definition of "extraordinary circumstances", technical faults within an aircraft should not be included and therefore an air carrier cannot rely on a technical fault within an aircraft as a defence from a valid claim under the Regulation.[5] Various passenger rights groups reported the case and encouraged passengers to bring claims against airlines in the event of a delay of over three hours.[6]