EC Regulation 261/2004 – Flight Delays, Flight Cancellations & Denied Boarding

The Volcanic Ash Crisis brought into sharp focus the rights attached to problems brought about by flight delays and cancellations. The airlines claimed that the Regulation should be abolished because it was unfair on them, whereas, leaving volcano crises to one side, it was demonstrated that the Regulation worked and that in fact smaller numbers of passengers in ordinary circumstances were relying on the ‘benefits’ from the Regulations.

One area which caused problems for those affected by flight complaints, arose when airlines challenged the legitimacy of the Regulation, claiming that the Montreal Convention was the dominant law when considering flight delay compensation. They argued that no such compensation should be paid. This was resolved in October 2012 when the European Court of Justice held that flight delays of three hours or over would attract compensation!

In another recent decision from the European Court of Justice (ECJ) (November 2012), they held again against the challenge that the limitation date for all 261/2004 cases was two years as stated under the Montreal Convention. The ECJ held that the correct limitation date for all 261/2004 cases would be determined by each Member State and their limitation rules. In the case of England & Wales, Section 5 of the Limitation Act 1980 states that for simple contract cases the limitation period is for six years.

One of the main sticking points for Consumers is how to deal with the Airlines’ defence of ‘Extraordinary Circumstances’! Within the Regulation, ‘Extraordinary Circumstances’ is defined as

“[deeming] to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations”

In another important decision of the ECJ (The Sturgeon Case) they held that ‘technical faults’ cannot be claimed by the Airline in the normal course of the aircraft operations or handling but they could be claimed if they occurred unexpectedly; the court stated that:

“unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control”

This does create sometimes problems for Consumers in that they need to find information on how they can prove that an aircraft is undergoing routine maintenance and not subject to the ‘Circumstances’ claimed by the Airline. We suggest that in order to try and defeat such ‘Circumstances’ you need to research the movements of the aircraft – you should also put the Airline to strict proof that what they are saying is correct! Some of the research sources you can use are:

  1. Professional Pilots Rumour Network;
  2. Flight Global (Partial Aircraft Movements via Forum);
  3. Collection of Aircraft Tracker Links

If you cannot find help through these links, you should message the ‘forums’ to see if someone in there can help you.

It will probably help you if we summarise the rights you have under (follow this link to see the text of the Regulation) EC Regulation 261/2004:

Remember, the Regulation applies throughout the EU and applies to EU Registered Airlines only (if you are travelling with a non-EU Registered Airline, then you will have to examine their terms and conditions to see what rights you have. It is also important to remember that Member States and Airlines cannot change or alter these rights.

    Preamble – This sets out the background of what the Regulations is about and how it will be applied;Article 1 – Defines the subject matter of the Regulation;Article 2 – Provides definitions to the words or expressions used in the Regulation;Article 3 – Sets out where, when and against whom the Regulation will apply;Article 4 – Defines Rights for Denied Boarding;Article 5 – Defines Rights for Flight Cancellation;Article 6 – Defines Rights for Flight Delays;Article 7 – Sets out your Right to Compensation for Flight Cancellation and now Flight Delays of 3 hours or over;Article 8 – Details your Rights to re-routing or reimbursement of your flight ticket;Article 9 – Presents the important Right to Care – all too often avoided!Article 10 – Deals with the Upgrading or Downgrading of your Flight Ticket and how you should be compensated;Article 11 – Provides additional Rights for those passengers with Reduced Mobility or Special Needs;Article 12 – Deals with your Right to pursue further compensation;Article 13 – Allows Airlines to pursue compensation from Third Parties for problems that have given rise to your complaints;Article 14 – Provides an obligation on the Airline to inform you of your Rights!Article 15 – Prevents Airlines from trying to exclude the provisions or Rights in the Regulation within their terms and conditions and provides additional Rights to Consumers if they do!Article 16 – This obligates each Member State to create a body that Consumers can complain to and they can lay down sanctions and punishments against the offending Airline(s).

Always remember, if you have a complaint against an Airline and they are not responding, you should contact the UK Civil Aviation Authority for further assistance. If the ‘offence’ took place outside the UK, they may well refer you to that Country’s Civil Aviation Authority – most are able to deal with English Language correspondence.