Flight delay compensation is a vexed issue and has received a lot of attention in EC airline news recently. EC regulation says that if a flight is delayed for at least two hours or is cancelled, passengers are eligible to receive compensation. The only time these provisions will not apply is when the delay or cancellation is due to an extraordinary circumstance.
Soon, operators saw loopholes and began using them to deny fliers refunds and compensation when their flights were delayed or cancelled. For instance, the definition of ‘extraordinary circumstance’ is ambiguous. Many delays and cancellations are caused by technical problems on the flight. So the airlines started claiming that technical problems were also extraordinary circumstances.
Airlines’ faulty interpretation of ‘extraordinary circumstance’ is responsible for the problem
Extraordinary circumstances include crew strikes, adverse weather, political unrest, terrorism and acts of God. Under these conditions, a flight cannot take off without endangering the life of its passengers. Most technical problems can be avoided with routine maintenance. But if the issue is genuine, the airline is justified in delaying or cancelling the flight. EC regulation 261/2004 clearly mentions that safety and security objectives will override any other factor.
Currently, EC flight news has been busy reporting on the Van der Lans Vs KLM case, at the CJEU. KLM, the Dutch airline is contending that technical problems also fall under extraordinary circumstances.
If KLM airline wins the case, which is highly unlikely, it will not have to pay compensation when its flights are delayed or cancelled due to technical problems, unless the CJEU lays down rules in the same judgement.
The problem is, if KLM wins the case, UK airlines will begin citing the KLM case to pressure the UK Supreme Court to overturn its ruling in the Jet2.Com Limited Vs Huzar case, where the court had ruled that technical problems could not be considered extraordinary circumstances. If that happens, the airlines will escape paying the billions of pounds in refunds and compensation that they have denied fliers all these years.
In the long term, the only way to end the problem is to revise EC regulation 261/2004 and clear the ambiguous interpretations.
More on EC regulation 261/2004
EC regulation 261/2004 also says that fliers should be provided with refreshments (and accommodation) free of charge, corresponding to the delay. Passengers shall also be provided free transport between the airport and the hotel. In addition, fliers shall be allowed to make two free telephone calls or send a fax.
The airline should also display at the check in counter, a message which will say, ‘if the flight is delayed for two hours or is cancelled, fliers can ask the airline personnel at the check-in-counter or boarding gate for a document which will appraise them of their rights’ (the document will also containing information on assistance and compensation).