Representation in Ireland

Frequently Asked Questions on Air Passenger Rights

Airfares

Is the airline obliged to show the full price of the fare including taxes and charges when I am pricing flights with a view to travelling to an overseas destination?

Regulation 1008/2008/EC on air services in the Community requires that the published price for the service shall include the fare and all applicable taxes, charges, surcharges and fees which are unavoidable and foreseeable at the time of publication. In addition, details must be given of the different components of the price (fares, taxes, airport charges and other costs). In relation to airfares, the Court of Justice of the EU ruled in January 2015 in the case of Air Berlin v Bundesverband der Verbraucherzentralen und Verbraucherverbande, Case C-573/13, that a computerised computer system should, from the outset, indicate the final price to be paid for each flight from an EU airport in respect of which the fare is shown.

The Consumer Rights Directive 2011/83/EU increases transparency for passengers, especially when buying their transport tickets on-line. The Directive explicitly bans pre-ticked boxes, internet cost traps and any additional charges which passengers were not duly informed about in advance. Additionally, it prohibits traders from charging fees for the use of means of payment (e.g. credit cards) that exceed the cost borne by the trader for the use of these means. 

Since 1st February 2017, airlines are also required to provide information to passengers about alternative dispute resolution in the form of an electronic link on their websites to the EU online dispute resolution platform

Example

Jack plans to travel to Paris. Several airlines operate on the route. Based on Regulation 1008/2008/EC, Jack is assured that the price quoted by each airline is the final price and that he will not subsequently find that further charges are added on to the flight he chooses.

Discrimination in access to fares between passengers or between users of the cargo service on the basis of their place of residence or their nationality within the Community is prohibited.

Example

Emma is based in Dublin and plans to fly to London.  She discovers that it is less expensive to purchase her flight throught BA UK rather than BA Ireland.  Based on the Regulation, she cannot be prohibited from booking through BA UK even though she is resident in Ireland.

Can a travel website include flight cancellation insurance as a default setting when selling airline tickets?

No.  Websites or companies selling airline tickets are required to indicate the “final price”, that is to say, the price of the flight in addition to all taxes, fees and surcharges which are essential for the purposes of the flight.  However, optional price supplements relating to additional services which are not compulsory must be communicated clearly at the start of any booking process and accepted by the customer on an “opt-in” basis.  This point was clarified in the judgment of the Court of Justice of the EU in Case C-112/11, ebookers.com Deutschland GmbH.

Example

Maeve was booking a flight on the internet.  When she selected her flight on the online page, the costs were listed on the top right-hand corner of the internet page under the heading “your current travel costs”. In addition to the price of the flight, the list contained amounts in respect of “taxes and fees” and “cancellation insurance” which were calculated automatically.  A notice at the bottom of the page indicated how the customer should proceed if she wished to reject the cancellation insurance which was included as a default setting.  That procedure was by means of an opt out.

The cancellation insurance is neither compulsory or necessary for the purpose of the flight and the customer may opt to either accept or refuse it.  EU law requires that such price supplements should be communicated in a clear, transparent and unambiguous way at the start of the booking process and that their acceptance should be on an “opt-in” basis.

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Protection for Airline Passengers - Regulation 261/2004/EC

Do I have rights if my flight is cancelled or delayed or I am denied boarding because of overbooking?

Under EU law, Regulation 261/2004/EC (“the Regulation”), you have rights where your flight is cancelled or delayed or you are denied boarding. However, the protection afforded by the Regulation is available only under certain defined conditions.

Are there limits on where and when the Regulation provides protection for me as an airline passenger?

The Regulation (Article 3(1)) applies to all passengers departing from an airport in a Member State and to all passengers departing from an airport in a country outside the EU to an airport in the EU where the operating air carrier is a Community air carrier. 

Example

Thomas is travelling to Ireland with an Aer Lingus flight from Newark Airport in the USA. He has just learned that his flight has been cancelled. He has rights under the Regulation. Contrast his situation with that of Tina who is travelling from the same airport to Ireland with an American airline which is not a Community carrier.  She does not have rights under the Regulation.

It is important to be aware that even if a non-EU airline creates and operates a website in an EU country, it cannot be presumed that any contract to purchase airline tickets is concluded under EU law where the flights depart and land outside the EU, even if the airline maintains an office in the EU country where the website is based.  This was confirmed by the Frankfurt Regional Court in December 2014.   While the matter has not been brought before the Court of Justice for an EU wide definitive ruling on the issue, the ruling of the Frankfurt court is both interesting and persuasive.

What is a Community carrier?

A Community carrier is an airline licensed in a Member State of the EU (Article 2)

If a third country airport authority provides assistance on a delay or cancellation, does this preclude me from availing of my rights under the Regulation?

Yes.  Article 3(1)(b) of the Regulation provides that if passengers have already received assistance in the third country, they are not eligible for further assistance from the airline concerned.

Example

Sam planned to travel from Istanbul to Dublin. The flight was cancelled.  He received assistance in the form of vouchers and accommodation in Istanbul from the airport authority there.  Therefore, he does not have a right to claim protection under the Regulation.

Do I, as an airline passenger, have any obligations in order to be able to rely on the Regulation?

Yes.  Under Article 3(2), to be able to rely on the Regulation, passengers must have a confirmed reservation on the flight concerned and, except where a cancellation has been notified in advance, should present themselves for check-in as stipulated and at the time indicated in advance, or if no time is indicated, not later than 45 minutes before the published departure time. 

Example

Paula booked an Aer Lingus flight to Dublin from Brussels. The ticket states that she must check in at least two hours before the scheduled departure of her flight. She arrived one hour before the scheduled departure and is denied boarding as the airline has allocated her seat to someone else. She will be precluded from the right to rely on the Regulation as she did not comply with the conditions upon which her ticket was issued.

It is important to note that there is an exception in relation to pre-notified cancellations of flights where the passenger is not required to present at check-in at the prescribed time to be able to avail of the protections set out in the Regulation. This means that if you plan to travel to Paris from Dublin by air and you receive a text from the carrier that the flight is cancelled and recommending that you do not present at the airport at the appointed time for your flight, you will retain your rights under the Regulation even though you do not present at the airport.

Example

Lucy is booked on a flight from Shannon airport to Paris tomorrow.  She hears on the news that all flights are grounded from 7am until 7pm tomorrow. In addition, she receives a text from the airline advising her of the disruption and the consequent cancellation of the flight. The news report recommends that intending passengers with flights during the period stated should not arrive at the airport. The text from the airline echoes this advice.  She can still avail of the protection afforded by the Regulation even though she did not present at the airport.

How can I enforce my rights under the Regulation?

You should first complain to the operating air carrier concerned and refer to your rights under Regulation 261/2004/EC.

When identifying the operating air carrier concerned, you should be aware that an air company, which hires an aircraft, including its crew, under a wet lease from another air company, but retains operational responsibility for the flight, is regarded as the operating air carrier for the purposes of that regulation.   This was confirmed by the Court of Justice of the EU in the case of Wolfgang Wirth and Others v Thomson Airways Ltd, C-532/17.

In this case, Mr. Wirth and other passengers booked flights from Germany to Mexico with the air company, TUIfly.  To operate the flight, TUIfly used the aircraft and crew of another air company, Thomson Airways, under a wet lease.  A wet lease is an arrangement covering the hire of an aircraft including the provision of a flight crew and sometimes fuel.  As the flight was significantly delayed, Mr. Wirth and others claimed compensation from Thomson Airways under Regulation 261/2004/EC.  Thomson Airways refused to pay the compensation on the grounds that it was not the operating air carrier for the purpose of the Regulation.  In this case, the Court of Justice of the EU ruled that Thomson was not the operating air carrier.  Instead, the responsibility for payment of compensation rested with TUIfly.

In any event, Article 16 of the Regulation provides that each Member State shall designate a body responsible for the enforcement of the Regulation. In Ireland, this body is the Commission for Aviation Regulation.

If you believe that your rights under the Regulation have been infringed, you can complain to any national designated body about the alleged infringement at any airport situated on the territory of that Member State or concerning any flight from a third country to an airport situated on that territory.

Example

Ruth is flying from Rennes in France to Dublin. Her flight has been cancelled and she has received no assistance from the airline. She wants to complain. She does not speak French fluently and is nervous of submitting her complaint in French. Under the Regulation, she has two choices. She can complain to the French designated body - Direction Générale de L'aviation Civile (DGAC), Direction du Transport Aérien, Mission du Droit des Passagers, Bureau des Passagers Aériens, 50 Rue Henry Farman, FR-75720 Paris Cedex 15. Tel.: +33 1 58.09.39.79.  Fax: +33 1 58.09.38.45.

For her convenience, she can also submit her complaint to the Irish Commission for Aviation Regulation. However, the Irish Commission for Aviation Regulation will forward the complaint to the French designated body which will investigate the complaint.

Details of all designated bodies can be found on this webpage of the Commission for Aviation Regulation.

Advice and assistance may also be obtained through your local European Consumer Centre.  There is a European Consumer Centre in every Member State as well as in Iceland and Norway.  Contact details can be located on the following website: http://ec.europa.eu/consumers/citizen/my_holidays/index_en.htm

For more information on your rights see http://apr.europa.eu

The EU Top 12 Recommendations for Passengers

What are the time limits within which actions for compensation for flight cancellation may be brought?

The Court of Justice confirmed in Case C-139/11 Joan Cuadrench More v Koninklijke Maatschappij NV that the time limits for bringing actions for compensation for flight cancellation should be determined in accordance with the national rules of each Member State.

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Information to passengers

Does the airline have an obligation to inform passengers of their rights under the Regulation?

Yes.  Article 14 of the Regulation provides that a clearly legible notice should be displayed at check-in advising passengers that if they are denied boarding or if their flights are cancelled or delayed for at least two hours, they should ask at the check-in gate or boarding gate for a text stating their rights particularly with regard to compensation and assistance.

An airline denying boarding or cancelling a flight should provide each passenger with a written notice setting out the rules for compensation and assistance. It should also provide each passenger affected by a delay of at least two hours with an equivalent notice. The contact details of the enforcement authority in the Member State should also be provided to the passenger in written form. 

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Flight delays - air passenger rights

What are my rights if my flight is delayed?

Article 6 of the Regulation sets out the rights of passengers where a flight is delayed. Where the airline reasonably expects a flight to be delayed beyond the scheduled time for departure, passengers are entitled to meals and refreshments in reasonable relation to the waiting time and two free telephone calls or emails or faxes. The point at which these rights are activated depends on the length of the delay and distance of the flight as follows:

-          for two hours or more in the case of flights of 1,500km or less;
-          for three hours or more in the case of intra-Community flights of more than 1,500km  and of all other flights between 1,500 and 3,000km;
-          for four hours or more in the case of flights not within the above categories

Where the reasonably expected time of departure is at least the day after the time of departure previously announced, passengers are entitled to hotel accommodation and transport between the airport and that accommodation where an overnight stay becomes necessary. 

Example

Mark plans to travel from Dublin to Heathrow but his flight has been delayed for three hours.  He is entitled to two texts, telephone calls or emails and to meals and drinks reasonable to the length of the delay e.g. coffee and a muffin or sandwich.  Contrast his situation with that of Mary whose flight to New York scheduled to depart at 10pm has been delayed until 7am the following day.  Mary is entitled also to the telephone calls etc. and to the meals and drinks reasonable to the length of her delay.  In her case, she should be granted something more substantial than coffee and a muffin.  In addition, she is entitled to hotel accommodation and transfers between the accommodation and the airport.

Where the delay is five hours or more, passengers are entitled to a choice between reimbursement of the full cost of the flight ticket for the parts of the journey not made and for the parts of the journey made, if the flight no longer serves any purpose in relation to the travel plans of the passenger, together with, when relevant, a return flight to the first point of departure at the earliest opportunity.

Examples

Flight from Cork to Paris

Lisa is travelling from Cork to Paris, return. Her flight is delayed for six hours. She decides not to travel. She should ask the airline to cancel her reservation and will receive a refund within seven days. The airline has no further obligation to Lisa when she cancels the flight.

Flight from Dublin to London and then to Dubai:

Ronan is travelling from Dublin to London and then on to Dubai, return.  If his flight from Dublin is delayed for longer than five hours, and he cancels the onward flights, he is entitled to refund of his tickets within seven days.  If the flight from London is delayed for longer than five hours, he can claim a refund together with a flight back to Dublin.

Is the passenger entitled to any monetary compensation in the event of a delay?

The passenger may be entitled to compensation in the event of a delay which exceeds three hours.  The Court of Justice of the EU ruled on 19th November 2009 in the joined cases of Sturgeon v Condor Flugdienst GmbH and Bock and others v Air France SA C-402 and 423/07 that compensation may be payable as if the flight was cancelled where the resulting delay is longer than three hours.  However, compensation will not be payable if the air carrier can prove that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The Court of Justice of the EU confirmed in the case of Marcela Peskova and Jiri Peska v Travel Service a.s., C-315/15, that a collision between an aircraft and a bird is an extraordinary circumstance which may exempt the air carrier from its obligation to pay compensation in the event that a flight is delayed significantly.

Many airlines were reluctant to comply with the decision of the Court of Justice in the Sturgeon case and refused to pay compensation in the event of a delay.  This matter has now been settled in cases C-581/10 Nelson and Others v Deutsche Lufthansa AD and C-629/10 TUI Travel and Others v Civil Aviation Authority in which judgment was delivered on 23rd October 2012.  In these cases, the Court of Justice of the EU confirmed its interpretation of EU law in the Sturgeon case.  The Court of Justice reiterated that the principle of equal treatment requires that passengers whose flights are delayed and those whose flights are cancelled ‘at the very last moment’ must be regarded as being in comparable situations as regards the application of their right to compensation, because those  passengers suffer similar inconvenience, namely, a loss of time. Since passengers whose flights are cancelled are entitled to compensation where their loss of time is equal to or in excess of three hours, the Court held that passengers whose flights are delayed by three hours or more can rely on the same rights as if their flight was cancelled.

However, the Court ruled that a delay does not entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.

Following this decision of the Court of Justice, in the event of delayed flights, where the flight is delayed for longer than three hours and the delay is within the control of the airline, the airlines should pay the necessary compensation.  The compensation amount is €250-€600 depending on the length of the delay and the distance of the flight.

In the case of Corina van der Lans v Kininkliike Luchtvaart Maatschappii, Case C-257/14 delivered on 17th September 2015 further clarification was provided by the Court of Justice of the EU in cases where delays are caused by so called “technical problems” In this case, the Court of Justice decided that technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves “extraordinary circumstances”.  In cases, where a delay is caused by such technical problems, compensation will be payable by the airlines to passengers where their flights are delayed for longer than two hours.

How is the length of the delay determined for the purpose of payment of compensation?

A flight is deemed to have officially arrived at its destination only when the doors open and passengers are permitted to leave the aircraft.   This was decided by the Court of Justice of the EU in September 2014 in the case of Germanwings GmbH v Ronny Henning, Case C-452/13.  In that case, the plane took off three hours and ten minutes after its scheduled time but landed on the runway at its destination airport, Cologne/Bonn with a delay of two hours and fifty-eight minutes.  However, it took a further five minutes for the plane to taxi to a gage and for the doors to be opened. 

The Court ruled that the time spent between landing and disembarking represents an inconvenience to passengers. “…., passengers are unable to carry on, without interruption, their personal, domestic, social or business activities,” the court said. “It is only when the passengers are permitted to leave the aircraft and the order is given to that effect to open the doors of the aircraft that the passengers cease to be subject to those constraints and may in principle resume their normal activities.”

What if the airline does not provide assistance when the flight is delayed? Is the passenger entitled to claim reimbursement of any drinks and food and telephone calls from the airline?

The Regulation is silent on this. However, it would be contrary to the spirit and purpose of the Regulation for the airline to refuse to reimburse reasonable expenditure for items it should have provided under the Regulation.  It is important to have regard to the word  ”reasonable” here.  Even if the airline does not observe its obligations in offering you the assistance it should under the Regulation, this does not mean that you should expect to be reimbursed for a five-course dinner in the event of a three-hour delay. 

If the airline does not provide you with the assistance provided for under the Regulation, you should go to the check in area or the boarding desk of the airline and request written notice of your rights in accordance with Article 14 of the Regulation.  If this is refused or there is still no attempt by the airline to offer any assistance, you should ensure that you keep all receipts for food and drinks and calls for presentation to the airline on your return or for forwarding to the national enforcement body or for production in the Small Claims Court if you decide to take legal action to recover your costs.

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Flight cancellations - air passenger rights

What are my rights if my flight is cancelled?

Article 5 of the Regulation sets out the assistance available to passengers where a flight is cancelled. Where a flight is cancelled, passengers are entitled to reimbursement of the full cost of their tickets for the parts of the journey not made and for the parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan together with, where relevant, a return flight to the first point of departure at the earliest opportunity or re-routing to their final destination at the earliest opportunity or re-routing at the convenience of the passenger to the final destination subject to availability of seats.

In addition, passengers are entitled to meals and refreshments reasonable to the waiting time and two telephone calls or texts or emails. If the re-routing is the day after the planned flight, passengers are also entitled to hotel accommodation where a stay of one or more nights becomes necessary or where a stay additional to that intended by the passenger becomes necessary. Transport should be provided between the hotel and the airport. 

Passengers on a cancellation are also entitled to monetary compensation. The amounts vary according to the distance of the flights. Passengers should receive 250 euros where the cancelled flight is for 1,500km or less; 400 euros where the cancelled intra Community flight is for more than 1,500 km or is a non intra-Community flight for 1,500 to 3,500km and 600 euros for all other flights. 

These amounts may be reduced by 50% where passengers are offered re-routing and the arrival time is no more than four hours than the scheduled arrival time of the flight originally booked.

Is there any time limit during which a reimbursement of a flight should be paid?

Article 8(1) provides that re-imbursement of the flight and compensation payments provided for the in the Regulation should be made within seven days by cash, electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.

How can I calculate the flight distances?

The following website should be of assistance in calculating the flight distances:  http://airportcitycodes.com/calcform.aspx.

This compensation shall not be payable where the passenger has been notified of the cancellation more than seven days before the date of departure or where the notification is less than seven days, where the passenger departs no earlier than one hour before the scheduled time and arrives no later than two hours after the scheduled time at the final destination.

Examples

Cancellation more than 14 days before date of departure:

Hugh has received a text from his airline advising him that his flight in 16 days is cancelled.  He does not have a right to compensation under the Regulation but may seek a refund of his flight cost. However, if the air-carrier is unable to prove that Hugh was informed of the cancellation more than two weeks before the scheduled time of departure, Hugh will be entitled to compensation.  This was confirmed in the case of Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaart Maatschappij, NV, C-302/16.

Cancellation between 7 and 14 days before date of departure:

Charles has received a text from his airline advising him that his flight in 10 days is cancelled.  He has a right to compensation as his flight was cancelled between 7 and 14 days before his departure and his flight departs more than two hours before the original scheduled time of departure and arrives more than four hours after the original scheduled arrival time.

Cancellation less than 7 days before departure:

Bill has received a text from his airline advising him that this flight in two days is cancelled. He has a right to compensation as his flight was cancelled less than seven days before his departure and the new flight departs more than one hour before the original time of departure and arrives more than two hours after the original scheduled time. 

Note that in the above examples, extraordinary circumstances do not apply.

How is compensation calculated in the event of a cancellation or long delay of a connecting flight?

The situation regarding connecting flights was clarified in the case of Air France SA v Heinz-Gerke Folkerts and Luz-Tereza Folkerts C-11/11.  Here, the case concerned a delay in arrival at the final destination.  The Court of Justice of the EU decided that a passenger on directly connecting flights must be compensated when he has been delayed at departure for a period below the limits specified in the Regulation but has arrived at his final destination at least three hours later than the scheduled arrival time. Compensation is not conditional upon having been delayed for a minimum period at departure.

Compensation payable to passengers in the event of a cancellation or a long delay of a connecting flight must be calculated according to the radial distance or great-circle distance between the departure and arrival airports.  This reflects the provisions of Article 7(4) of the Regulation.  The great-circle distance is the shortest distance between two points on the surface of a sphere.  Calculation of compensation based on the great-circle distance was confirmed by the Court of Justice of the EU in the case of Birgit Bossen, Anja Bossen and Gudula Grossman v Brussels Airlines, C-559/16.

Arthur planned to fly from Dublin to Frankfurt where he would connect with his onward flight to Warsaw.  He arrived in Frankfurt with a delay of four hours and missed his connecting flight to Warsaw.  For the purpose of compensation payable to Arthur, the airline is obliged to calculate the direct distance between Dublin and Warsaw rather than the distance actually flown.

Compensation may also be payable for long delays of connecting flights to third countries with stopovers outside the EU.  This was confirmed by the Court of Justice of the EU in the case of Claudia Wegener v Royal Air Maroc SA, C-537/17.  In this case, the Court decided that, in the circumstances, flights from Berlin to Casablanca and then from Casablanca to Agadir should be treated as a single connecting flight and therefore within the scope of the Regulation. 

When claiming compensation for delays in respect of connecting flights, an airline which operated only the first leg of a connecting flight in one Member State can be sued before the courts of the final destination in another Member State.  This was confirmed by the Court of Justice of the EU in joined cases Fightright GmbH v Air Nostrum and others, C-274/16, Becker v Hainan Airlines Co Ltd, C-447/16 and Barkan and others v Air Nostrum and others, C448/16.

Is the airline obliged to pay compensation where the cancellation is beyond the control of the airline?

Article 5(3) provides that the air carrier shall not be obliged to pay compensation 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 Regulation gives the following examples of events which may constitute extraordinary circumstances: political instability; bad weather; security risks; unexpected flight safety shortcomings; and strikes that affect the operation of an air carrier. It is important to remember though, that the air carrier is only exonerated from the obligation to pay compensation in extraordinary circumstances where the cancellation could not have been avoided even if all reasonable measures had been taken.

It is noteworthy that an air-traffic management decision causing a long delay or cancellation of flights on the aircraft to which the decision relates, will constitute an extraordinary circumstance, even though all reasonable measures have been taken by the air carrier to avoid delays or cancellations.

Could the presence of volcanic ash in the airspace be considered to be an extraordinary circumstance within the meaning of Article 5(3)?

Yes.  The Court ruled in the case of McDonagh v Ryanair, C12/11, that circumstances such as the closure of part of European airspace as a result of a volcanic eruption such as that of the Eyjafjallajökull volcano constitute ‘extraordinary circumstances’.  While compensation may not be payable by the airline in such extraordinary circumstances, air carriers are not released from their obligation to provide care.

The Court of Justice of the EU was also asked to rule on the question whether, in such a situation, the obligation to provide care must be subject to a temporal and/or a monetary limitation.  In other words, did not the obligation to provide care last only for a limited period and was there a ceiling on the amount of expenses which could be claimed during the waiting time.

The Court of Justice responded that the EU Regulation does not provide for any limitation, either temporal or monetary, of the obligation to provide care to passengers whose flight is cancelled due to extraordinary circumstances. This means that the air carrier is responsible for providing care to passengers for the entire period during which the passengers concerned await their re-routing. 

If the air carrier fails to comply with its obligation to provide care to an air passenger, that passenger may only obtain reimbursement of the amounts which proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier.

Examples

Paul planned to travel home to Dublin from Glasgow. He was notified by text that his flight was grounded because of heavy snowfall across the UK and Ireland. He is entitled to reimbursement of his ticket or re-routing at the earliest opportunity or re-routing at his convenience. He is also entitled to meals and drinks reasonable to the length of the delay occasioned by the cancellation. He is entitled to two telephone calls or texts or emails. If the earliest re-routing will not take place until the following day or week, he is entitled to hotel accommodation and transfers to and from that accommodation and the airport until he is successfully re-routed. 

He is entitled to reimbursement of reasonable and appropriate expenses if the airline fails to provide for refreshments, food, accommodation, transport to the accommodation and communication with third parties.

He is not however entitled to the monetary compensation i.e. the €250-€600 payable for an avoidable cancellation, as it can be argued that the cancellation has been caused by extraordinary circumstances which could not have been avoided.

Would a “wildcat strike” by flight staff following the surprise announcement of a restructuring constitute an “extraordinary circumstance” releasing the airline from its obligation to pay compensation in the event of cancellation or delay of a flight?

The Court of Justice ruled in Krusemann and Others v TUIfly GmbH (2018) that in this case, the wildcat strike did not constitute an extraordinary circumstance and that the airline was obliged to pay compensation to passengers affected by cancellations and delays as a consequence.  The Court noted that Regulation 261/2004/EC sets out two cumulative conditions for an event to be classified as an extraordinary circumstance:

  1. The event must not by its nature or origin be inherent in the normal exercise of the activity of the airline; and

  2. The event must be beyond its actual control.

The Court emphasised that the mere fact that a recital in the Regulation mentioned that such circumstances may arise, in particular, in the event of a strike, does not mean that a strike is necessarily and automatically a cause for exemption from the obligation to pay compensation.  On the contrary, it is necessary to assess, on a case-by-case basis, whether the two conditions (above) are fulfilled.

Can an airline always rely on “technical difficulties” to justify a cancellation and refuse to pay compensation?

No. The Court of Justice of the EU first ruled on this issue in December 2008 in the case of Wallentin Herman v Alitalia where it was held that airlines may only refuse to pay compensation when a flight is cancelled due to technical problems if the problem stems from events which, by their nature or origin, are not inherent in the normal exercise of activity of the air carrier concerned and are beyond its actual control.

In this regard, the Court of Justice of the EU ruled in November 2014, in the case of Sandy Stewart and Others v Condor Flugdienst, Case C-394/14, that mobile boarding stairs colliding with an aircraft does not constitute “extraordinary circumstances” relieving the air carrier of its obligation to pay compensation for a flight delay of more than three hours.

What is the difference between a delay and a cancellation?

The Regulation defines cancellation in Article 2 as “the non-operation of a flight which was previously planned and on which at least one place was reserved”. The Regulation does not define "delay", nor does it provide that a delay of a certain length constitutes a cancellation. For guidance, it is suggested that any change in flight number coupled with a delay would constitute a cancellation. 

If I miss the first two days of my holiday because my flight has been cancelled, can I claim the cost of the accommodation from the airline?

Under Article 14 of the Regulation, passengers who have not voluntarily surrendered their seats (volunteers in denial of boarding) may make further claims for compensation. Such claims would be made in the national courts.  In view of the amounts of money involved, in Ireland, most claims could be taken before the Small Claims Court where the civil jurisdiction of the court is for claims less than 2,000 euros.

Passengers should note that under the Montreal Convention, which governs airline liability, an airline is liable for “damage occasioned by delay” up to a limit of 4,150SDRs. (4,986 euros on 12th September 2018). However, the airline will not be liable if it proves that it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take such measures. If the cancellation was due, for example to technical difficulties which were inherent in the normal exercise of activity of the airline, arguably, a claim could successfully be made for costs of accommodation not taken up. By contrast, if the cancellation is due to the presence of volcanic ash in the airspace, the airline would probably not be liable under the Montreal Convention.

Example

Pat and his wife, Maureen, planned to fly from Dublin to London to celebrate their wedding anniversary.  They had booked a luxury hotel for the two nights they planned to spend in London.  On the eve of their departure, the flight was cancelled.  The hotel charged them full price for the first night as the notice was too short to obtain a refund.  The airline has refused to honour the cost of the hotel despite the fact that Pat and Maureen returned home to their house in Dublin while awaiting news whether the flight would take off or not and did not cost the airline the overnight accommodation to which they would have been entitled.  They tried to claim the cost from their insurance but soon discovered that this was not covered.  They now propose to take the airline to court to reclaim the cost of the hotel accommodation which amounted to 500 euros. 

This is an action which Pat and Maureen can bring themselves, without the intervention of a solicitor before the Small Claims Court in Ireland as the value of the claim is less than 2,000 euros.  Further details on the Small Claims Court can be obtained from the following website: http://www.courts.ie/Courts.ie/Library3.nsf/pagecurrent/C9A6DFDC008962218025721B00553F3B?opendocument&l=en

However, before commencing this procedure, Pat and Maureen should consider their chances of success. Unfair as the financial loss to them may appear, the airline will not be liable if it proves that it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take such measures.

What is the status of cancellation fees charged by airline companies?

If a cancellation fee is imposed by an airline where a passenger cancels a flight booking or does not take a flight, such a fee may be subject to review under national law transposing the Unfair Contract Terms Directive 93/13/EC to assess if it is unfair.

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Flight cancellations and package holidays

What if I have travelled on a package holiday and my flight is cancelled, what are my rights?

If your cancelled flight has been purchased as part of a package holiday, you have more extended rights under the Package Travel Directive 2015/2032/EU.  This Directive entered into force from 1st July 2018.  This Directive provides for an increased level of consumer protection in relation to contracts for travel packages and linked travel arrangements, taking into account the increasing use of internet booking.  Further information on your rights under this Directive are available on the following website:  https://ec.europa.eu/info/sites/info/files/factsheet_package_holidays_2018.06_en_web.pdf

Travel insurance

To what extent is my travel insurance company liable for travel losses I incur as a result of a flight cancellation or delay, e.g. delayed take-up of hotel accommodation or car-hire?

This is a matter of contract between the insurance company and yourself. You will have to read the terms of your insurance policy.  

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Denial of boarding

What does denial of boarding mean?

Denial of boarding is defined in Article 2 as a refusal to carry passengers on a flight although they have presented themselves for boarding under the conditions laid down except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation.

Denial of Boarding is dealt with under Article 4 of the Regulation. When an airline reasonably expects to deny boarding on a flight, it should first call for volunteers to surrender their reservations in exchange for benefits to be agreed between the passenger concerned and the airline. If an insufficient number of volunteers come forward to allow the remaining passengers to board the flight, the airline may deny boarding to passengers against their will.

Example.

Rachel arrives to check in for her flight from Sligo to Dublin. She is on time. A call is made for volunteers to surrender their seats on the flight and travel on the later flight as the flight has been overbooked. Only two passengers go forward. Rachel is then selected by the crew to wait for the next flight. She has rights under the Regulation. Contrast this with the situation where Rachel arrives at the airport without any photographic identification and is denied boarding. In the latter situation, she does not have any entitlement to assistance under the Regulation

What is the assistance offered to passengers who are denied boarding against their will?

Passengers who are denied boarding against their will have the same entitlements as those whose flights have been cancelled. Passengers are entitled to reimbursement of the full cost of their tickets for the parts of the journey not made and for the parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan together with, where relevant, a return flight to the first point of departure at the earliest opportunity or re-routing to their final destination at the earliest opportunity or re-routing at the convenience of the passenger to the final destination subject to availability of seats.

In addition, passengers are entitled to meals and refreshments reasonable to the waiting time and two telephone calls or texts or emails. If the re-routing is the day after the planned flight, passengers are also entitled to hotel accommodation where a stay of one or more nights becomes necessary or where a stay additional to that intended by the passenger becomes necessary. Transport should be provided between the hotel and the airport. 

Passengers are also entitled to monetary compensation. The amounts vary according to the distance of the flights. Passengers should receive 250 euros where the flight is for 1,500km or less; 400 euros where the intra Community flight is for more than 1,500 km or is a non-intra Community flight for 1,500 to 3,500km and 600 euros for all other flights. 

These amounts may be reduced by 50% where passengers are offered re-routing and the arrival time is no more than four hours than the scheduled arrival time of the flight originally booked.

What if I have been denied boarding because my flight has been re-scheduled as a result of a strike at the airport some days before?

The concept of “denied boarding” relates not only to cases of overbooking but also to those concerning other grounds such as operational reasons.    The Court of Justice of the EU confirmed this point in Case C-22/11 Finnair Oyj v Timy Lassooy.  Regulation 261/2004/EC provides for cases where there are grounds for a carrier to deny boarding.  With the exception of these cases, passengers are entitled to be compensated and immediately be reimbursed their tickets or be re-routed to their final destination and cared for while awaiting a later flight.

Charles had booked a flight at 11.40 on 30th July 2018.  Following a strke at the departing airport, the airline cancelled the 11.40 flight on 29th July 2018.  In order that passengers on that flight should not have too long a waiting time, the airline rescheduled subsequent flights.  Accordingly many of those passengers from the flight in question were carried on the 11.40 flight the following day.  The consequence of that rescheduling was that some passengers, including Charles who were scheduled to travel on the 11.40 flight on 30th July were rescheduled for a special flight later that day at 2100.  The airline refused to grant any compensation to him for the delay.

Based on the Lassooy case above, Charles is entitled to compensation. The situation in which Charles found himself is comparable to a denial of boarding due to initial overbooking by the carrier for economic reasons.

What is the situation where I am denied boarding on a connecting flight by reason of a delay in the first flight caused by the airline?

The Court of Justice confirmed in Case C-321/11 German Rodriguez Cachafeiro, Maria de los Reyes Martinez-Reboredo Varela-Villamor v Iberia Lineas Aereas de Espana SA that passengers on connected flights must be compensated when denied boarding as a result of a delay to the first flight caused by the airline.

Example

Hugh bought airline tickets from an airline comprising two connecting flights.  At the check-in counter, his luggage was checked direct to the final destination and he was given two boarding cards for the two successive flights.   The first flight was delayed by one and a half hours.  Despite the delay, Hugh managed to present himself at the departure gate in the final boarding call to passengers.  He was denied boarding on the basis that he had not presented in time and that his seat had been allocated to another passenger.

Hugh was entitled to be compensated immediately. He was also entitled to reimbursement of his ticket or re-routing to his final destination  and care while awaiting a later flight.

Can the airline include a term in its terms and conditions which excludes the operation of the Regulation?

No. This is clearly set out in Article 15 of the Regulation.

Review of Regulation 261/2004/EC

Are there any proposals to update or amend this legislation?

In March 2013, the European Commission announced a package of measures to ensure that air passengers have new and better rights to information, care and re-routing when they are stranded at the airport. It is proposed that  there will be improved complaint procedures and enforcement measures so passengers can successfully enforce the rights to which they are entitled.   For further information, go to - http://europa.eu/rapid/press-release_MEMO-13-203_en.htm#PR_metaPressRelease_bottom

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Air travel for those with reduced mobility or special needs

Are there any special concessions under the Regulation for those with reduced mobility or special needs?

Yes.  Article 11 of the Regulation provides that operating carriers should give priority to carrying persons with reduced mobility and persons or credited service dogs accompanying them and to unaccompanied children.

Where such persons are subject to delays or cancellation or denial of boarding, they should have a right to assistance under the Regulation as soon as possible.

In addition, Regulation 1107/2006/EC provides for the rights of disabled persons and persons with reduced mobility when travelling by air. The objective of the Regulation is to ensure that such passengers have opportunities for travel which are comparable to those of other persons.

What are those rights?

The rights include: 

  • The right to non-discrimination during flight reservation and on ticket purchase
  • The right to travel on an equal footing to any other passenger
  • The right to information about safety rules applied by air carriers
  • The right to free assistance at the airport and on-board aircraft
  • The right to transport two pieces of mobility equipment free of charge

In order to benefit from these rights disabled passengers and passengers with reduced mobility should be aware of the following:

Notification of your needs for assistance to the airline, travel agent or to the tour operator must be made at least 48 hours before the flight departure is crucial. Managing bodies of airports will be informed accordingly and shall be responsible for providing assistance up to the aircraft gate and to your seat; then the assistance is the responsibility of the airlines. The assistance is free of charge.

Although, pre-notification is not obligatory, it is highly recommended, to ensure that service providers (airport managers and air carriers) can organise the most appropriate assistance according to your needs and the circumstances of your trip.

Requests to transport an electric wheelchair or carriage of other potentially dangerous items must be notified to the air carrier 48 hours in advance.

You can obtain further information on your rights under Regulation 1107/2006/EC on the following website: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/12/422&format=HTML&aged=0&language=EN&guiLanguage=en

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Luggage

If my luggage is lost or delayed, what are my rights?

The Montreal Convention deals with lost or delayed luggage. Under this Convention which was incorporated into EU law under Regulation 889/2002/EC, the maximum liability of the airline in the event of lost or delayed luggage is limited to 1,000 Special Drawing Rights (SDRs) per passenger. The value of a SDR will vary each day and is linked to exchange rates. To give an idea of its value, 1,000 SDRs equalled 1,201.67 euros on 12th September 2018.

This limit of 1,000 SDRs on damaged, delayed, lost or destroyed luggage was confirmed in a decision of the Court of Justice of the EU on 6th May, Walz v Clickair SA, in which the Court declared that this limit of 1,000SDRs must be interpreted as including both material and non-material damage.

If the baggage is damaged, delayed, lost or destroyed, the passenger must write and complain to the air carrier as soon as possible. In the case of damage to checked baggage, the passenger must write and complain within seven days, and in the case of delay within 21 days, in both cases from the date on which the baggage was placed at the passenger's disposal.

In case of baggage delay, the air carrier is liable for damage unless it took all reasonable measures to avoid the damage or it was impossible to take such measures. The liability for baggage delay is limited to 1000 SDRs (approximate amount in local currency).

Some airlines offer immediate one-off cash payments at a set amount to cover emergency purchases until the delayed bag is delivered. Others will pay a set amount per day, up to a maximum number of days.

Other airlines do not make immediate cash payments, but prefer to reimburse a passenger’s expenditure on essential purchases and will often therefore insist on seeing receipts.

If your bag has still not been returned to you more than 21 days after your flight, the airline should treat it as lost and settle your claim on that basis.

Example

Ann flew from Dublin to La Rochelle with the girls for a five day break. Unfortunately, her luggage did not appear on the carousel in the baggage hall and she was advised by the airline that they would try to trace it and would return it to her at the earliest opportunity. Ann spent the five days waiting for her luggage to be returned but did not receive it while in France. It was eventually returned to her home seven days after it had first disappeared. She submitted a claim in the sum of 500 euros which she considered to be reasonable to cover necessary expenditure while in France. The airline offered 30 euros to settle the claim on the basis that the luggage had simply been delayed and was not missing.

It is important for Ann to be aware that the Montreal Convention provides that the maximum claim she can make is for 1,000SDRs. There is no guarantee that she will be successful if she takes a claim against the airline before the Small Claims Court for the difference between her claim and the payment offered by the airline, as there are no clear rules on liability for delayed baggage.

What if the luggage is lost?

The air carrier is liable for destruction, loss or damage to baggage up to 1000 SDRs (approximate amount in local currency). In the case of checked baggage, it is liable even if not at fault, unless the baggage was defective. In the case of unchecked baggage, the carrier is liable only if at fault.

The Montreal Convention requires airlines to treat a bag as lost after twenty-one days. In assessing your claim, an airline may request an inventory of the items that were in the missing bag, and may also ask for original receipts. The maximum liability of the airline will be 1,000SDRs.

Can a passenger claim compensation from the air carrier for the loss of his belongings if they were checked in the name of another passenger on the same flight?

The Court of Justice of the EU confirmed in Case C410/11 in Pedro Espada Sanchez and Others v Iberia Lineas Aereas de Espana SA confirmed that a passenger can claim compensation from the air carrier for the loss of his belongings even if they were checked in the name of another passenger on the same flight.

Niall and his wife Shona boarded a flight with their two children.  The luggage for the family of four had been packed in two suitcases which were lost during the flight and were not recovered.  Accordingly, Niall, Shona and the children each sought damages from the carrier in the amount of 4,000SDRs (1,000SDR per person).

If Niall, Shona and the children can prove that they each had luggage packed in the suitcases which were lost, they are each entitled to claim compensation for the lost luggage.  The claim is not restricted to those whose names appeared on the luggage identification tag.

Is it possible to make a claim on my home or travel insurance?

You may find you can get a better settlement from your travel or home contents insurance even after allowing for any excess on the policy.

Your insurer will want evidence of the loss or damage. This may mean making a report to the local police, which should be done within 24 hours, if possible. If you have to replace any essential items that are lost, for example toiletries or clothing, make sure you ask for receipts, as you will probably need to provide your insurer with copies. Ask for receipts for any essential services that you need to pay for as well.

Are there any time limits to make a claim?

If the baggage is damaged, delayed, lost or destroyed, the passenger must write and complain to the air carrier as soon as possible. In the case of damage to checked baggage, the passenger must write and complain within seven days, and in the case of delay within 21 days, in both cases from the date on which the baggage was placed at the passenger's disposal.

What if the luggage is damaged or items go missing from my luggage?

Where luggage is damaged, an air carrier will often ask for a written estimate for the cost of repairing the luggage.

In the event of any items going missing from luggage, it can be very difficult to get any compensation, often because it is almost impossible to prove that the items were there in the first place.

What if I have a general complaint whether about luggage or not in relation to my air travel?

If you have a problem and need to complain:

-       Try to speak to someone on the spot. They might be able to sort out your problem straight away.

-       If you are still not happy, try to find out who is responsible for what went wrong. (It may not be the airline).

-       Make a note of staff names, times and any other relevant information. It might be useful, too, to ask for the names and addresses of other passengers who saw what went wrong.

-       Put your complaint in a letter. Briefly explain what went wrong. Say what you expect to be done about your complaint. If you want compensation, say so, and say how much you expect.

-       Be reasonable and stick to the facts. Address your letter to the customer relations department of the organisation whose services you are complaining about.

-       If you are not satisfied with the response from the customer relations department, take your complaint to a higher authority.  You may wish to discuss your situation with the European Consumer Centre and do not rule out bringing a claim before the Small Claims Court.

-       Keep copies of all correspondence. Send copies of tickets or receipts with your first letter of complaint.  Keep the originals until you have a promise of a refund in writing (unless you can go to the travel agent or airline office yourself, and get the refund immediately).

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Liquids on Flights

What are the current rules regarding liquids on flights?

Under the current rules, you can carry as hand luggage, liquids in individual containers with a capacity not greater than 100 ml and contained in one transparent re-sealable plastic bag of a capacity not exceeding one litre. Liquids include gels, aerosols, pastes, lotions, liquid/solid mixtures and other items of similar consistency, such as drinks, toothpaste, soups, syrups, perfumes, shaving foam, etc.

Essential medicines, as well as baby-food and milk are permitted in quantities larger than 100 ml, but only for use during the trip and you may be requested to prove its authenticity.

From January 2014, new security rules apply allowing duty free liquids to be carried as hand luggage provided the item and the receipt remains sealed inside the security bag provided at the time of purchase.

Example

Dot is a diabetic.  She plans to travel from Knock to Lanzarote.  She wants to know how to pack her insulin as she may require this on board during the four-hour flight. 

Dot should pack two transparent re-sealable bags of no more than one litre capacity.  One should contain any lotions or gels or cosmetics in containers of 100mls or less which she proposes to carry in her hand luggage.  The other bag should contain her insulin and be presented to the security personnel during screening.

For further information on the restrictions on liquids on flights, you may wish to browse the following website: https://ec.europa.eu/transport/modes/air/security_en