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We have all been there, in the airport departure lounge with a screen telling us that our flight has been delayed and our dreams of being on the beach by lunchtime slip away by the minute. What can air passengers do if they find themselves in this situation – and what are their legal rights?

One of the aims of the European Union is to strengthen consumer protection throughout member countries. European lawmakers have therefore attempted to provide air passengers with legal rights when they are faced with lengthy delays or cancellations. Regulation 261/2004 details passengers’ rights to claim compensation, food vouchers and hotel costs, among other things, in certain circumstances when flights are delayed or cancelled. This is now law in all member states and applies when a flight departs from an EU country.

Cancelled v Delayed

A flight is considered cancelled if it does not operate at all. This is different from one that is delayed: a delayed flight will still operate, even if it is days late. If your flight does not take off at the last minute and is deemed ‘cancelled’, air passengers are entitled to reimbursement or a re-route to destinations at the earliest opportunity. In other words, you should either get a refund of the full cost of your ticket or be put on a different flight to your destination as soon as possible.

Air passengers should also be offered enough meals and refreshments to cover the time that they have to wait and – if an overnight stay becomes necessary – hotel accommodation. Accommodation is not related to ticket class, so if you have booked to fly first class, do not expect to be given five-star accommodation. Furthermore, you should be offered two phone calls, emails, fax messages or telexes free of charge.

Compensation for delays and cancellantions

One of the most substantial elements of EU law is the right to compensation when a flight is cancelled. If your cancelled flight would have covered a distance of less than 1500km, you are automatically entitled to €250. Compensation goes up in increments, so if the cancelled flight was between EU countries and further than 1500km, you are entitled to €400; cancelled flights between an EU and a non-EU country of 1500km-3000km entitle travellers to €400. All other flights allow for €600 compensation. These amounts may be decreased if air passengers do not suffer long waits because of the cancellation.

Even though there is a subtle difference legally between a flight that is delayed and a flight that is cancelled, both can cause much distress to passengers. In fact, a delayed flight can be more frustrating because of the sheer uncertainty of the situation. The regulation itself provides some protection when a flight is delayed. However, it does not automatically allow passengers to claim for compensation in the same way they can if the flight was classed as ‘cancelled’.

Full refunds for air passengers

If your flight is delayed for more than two hours, you can claim for meals and refreshments as detailed above, along with two free calls, emails, fax messages or telexes. If the flight is delayed overnight, hotel accommodation and transport to get to the airport again the next day should be provided. In certain cases where the flight is delayed by more than five hours, you should be given the opportunity to claim a refund of the full cost of the ticket or to be moved onto a different flight to get you to the destination as soon as possible.

The European Court of Justice noted that delayed flights often cause as much turmoil as cancelled ones and believe that the point of the law is to protect air passengers who are experiencing similar problems with airlines, despite the subtle difference in the terminology. The court has therefore tried to amend the law by ruling that delayed flights that cause a passenger to reach their final destination more than three hours late can claim compensation. The amounts that can be claimed are worked out on the basis set out above, so if your flight from London was delayed and you arrived in Paris more than three hours after you should have done, you would be entitled to €250 compensation. This is currently being reviewed and is subject to change, as airlines are unsurprisingly not happy that passengers could be claiming for compensation that is higher than the cost of the ticket.

Hurricanes and ash clouds

It is worth pointing out that for both cancellation and delays, airlines do have a defence in certain circumstances. The law states that if there are extraordinary circumstances beyond the control of the airlines and they can show that they could not have done anything more to make the flight leave on time, they will not be compelled to pay automatic compensation. So in the case of the Icelandic ash cloud closing airspace across Western Europe (which the airlines could not control), they may not be liable to pay passengers compensation.

The extraordinary circumstances defence has not been tested directly in relation to the ash cloud at present. Judges have, however, previously stated that a hurricane was an unforeseen event in Hayes v Airtours [2001] and furthermore that heavy snow was sufficient to be unforeseeable in Charlson v Warner [2000]. Although these cases relate to a different piece of European law, it is still possible that the court will decide that the ash cloud is a similar unforeseeable event, which will mean the airlines do not have to pay out automatic compensation.

Although the EU’s aim was to develop a consumer-friendly law, the area is a complex one and is subject to change; small differences in situations can lead to huge differences in what air passengers can claim for. As with all legal issues, it is worthwhile discussing your particular situation with a legal professional before taking any action if you believe you are entitled to things that you were not, in fact, provided. Happy holidays!

For more information about making a claim contact our Civil Litigation team.