Delay or cancellation of flights: obligation to compensate the passenger

Most frequent flyers are familiar with the feeling of powerlessness and time lost during long waits in airports when the flight they were due to catch is delayed by several hours. While we are all aware that we have certain rights as passengers, the truth is that on most occasions we merely express our dissatisfaction to the airline personnel and, once we have reached our destination, several hours late, we are left with a rage that is quickly forgotten. Unless our holiday plans have been seriously disrupted, we tend not to claim compensation from the airline company for the lost time, usually because either we don’t know the procedure to follow, we can’t be bothered, or we are convinced that a simple out-of-court complaint will be a pointless exercise. That said, the truth is that the procedure is more straightforward than it seems, with airline companies increasingly willing to assume liability without a prolonged argument and pay compensation as laid down in the applicable legislation, precisely because consumers are better informed and more aware of their rights. This has led to a recent flurry of sentences in favour of the passenger being handed down by Spanish courts of law.
“The time of arrival at your destination will be used to determine the length of the delay”
It is important to be clear about what to do and who to contact in the event your flight is delayed or cancelled. We should firstly define the basic regulations regarding compensation and assistance offered to airline passengers. Regulation 261/2004 of the European Parliament and of the Council, of 11 February 2004, the provisions of which must be adopted and implemented according to the interpretation of same issued by the Court of Justice of the European Union. This regulation put into practice a legal framework for compensation, the main points of which are as follows:

- A delayed flight is considered equivalent to a cancelled flight where the delay is greater than three hours.

- The time your plane arrives at your destination will be used to determine the length of the delay. Arrival time is deemed to be the moment at least one of the plane’s doors is opened, allowing passengers to leave the aircraft.

- The rates of compensation for cancellation or delay are stipulated as follows:

€250 for flights of up to 1500 km

€400 for all intra-Community flights of more than 1500 km, and other flights of between 1500 and 3500 km

€600 for flights of more than 3500 km

- The stipulated compensation rates will be reduced if the airline offers an alternative means of transport.

- There will be no entitlement to compensation when the airline can demonstrate that the delay or cancellation was due to extraordinary circumstances which were unavoidable, despite all reasonable precautions having been taken. Generally speaking, aircraft technical problems are not deemed extraordinary.

This entitlement to compensation is automatic under circumstances as described. The passenger is merely obliged to demonstrate that there was a delay (or cancellation). It is therefore important to gather as much of the documentary evidence at your disposal as possible: boarding card, photographs of the flight boards showing the time and the delay, information on the flight’s arrival time, etc.
In addition to the amounts stipulated, passengers can make a further claim for damages suffered because of the delay, including moral damages. This additional compensation would require the passenger to demonstrate, not only the existence of the delay, but a direct cause-effect relationship between the delay experienced and the actual damage suffered as a result.

Once you are familiar with your rights as a passenger, the circumstances under which you can demand them and the amounts you can expect to receive, you need to know who to contact to make your claim. In the first place, you can make a claim to the airline company itself, either at the airport desk or via their website. Most airlines have an online complaints section on their website. If the first reply you receive refuses your entitlement to any compensation, you must emphasize that compliance with Regulation 261/2004 is obligatory in order to obtain payment of the stipulated amount.

Passengers also have the option to appeal to consumer protection centres and, in the last resort, lodge a formal complaint with the appropriate courts of law. This final option would be most common where a passenger is claiming an additional amount for damages as well as the standard compensation.

Article written by Marina Villalonga Cladera, lawyer at Bufete Buades.