23 NOVEMBER 2009

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Article from BTNews 23 NOVEMBER 2009

COMMENT: Passenger delay compensation

Not widely reported by the national media on Friday (20 November), a decision by the European Court of Justice in Luxembourg will have a significant effect on air travel.  Essentially what the European judges have ruled is that airline passengers facing long delays should receive the same cash compensation as those whose flights are cancelled.

The judgement, which is not statutory, stems from cases brought in the German and Austrian Courts regarding Condor and Air France.  In these cases the delays were much worse, 22 and 24 hours respectively.

The Judges definition of a “long delay” was one which delivers travellers to their final destination three hours or more after the scheduled arrival time.  What the Court of Justice said in this case is a guideline but what is clearly contentious is the three-hour break point.  Clearly European Judges do not have much patience. 

At this stage no statistics are readily at hand regarding the number of flights that are delayed longer but waiting this amount of time in an airport lounge is not uncommon.  If every delay of this length were to trigger compensation the cost to airlines would be horrendous.  Should UK passengers who have waited, say four hours, now decide to claim via the British Courts surely the guideline requires to be the result of a serious study by the CAA, or an approved research organisation.  One could argue that is is an excuse to print money for the compensation lawyer industry.

However the judges noted: “Such a delay does not give rise to a right to compensation if the airline can prove that the delay was caused by extraordinary circumstances which are beyond its actual control and which could not have been avoided even if all reasonable measures had been taken.”

They ruled out technical problems unless “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.”  Another point of contention.

Existing Denied Boarding Regulations only cover cancelled departures, although airlines are obliged to offer passengers assistance if delays are expected to go beyond a certain length, with the starting point a two-hour delay on a flight up to 1500 kms (932 miles).  The cancellation compensation currently stands at between €250 and €600 per person per flight.

The European Parliament needs to look at the regulations again.  The current rules were established in 2004.

MALCOLM GINSBERG

Editor in Chief

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