By Eily Kimmerling LLM, laywer
In this article I discuss the obligations of the air carriers towards their passengers under the European Union’s passenger rights protection legal framework. It particularly focuses on the obligations surrounding flight disruptions and rules on compensation and assistance.
Cancellation of flight for any reason does not discharge the flight operator from their regulatory obligations to inform the passengers of it, assist with re-routing arrangements, and reimburse the booking price under European Union law. The reimbursement is what allows the passenger to arrange the means of re-routing.
Paragraph 12 to the preamble to Regulation 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, which came into force on 17 February 2005, states that the purpose of the regulation is to induce the air carriers to inform the passengers of the cancellation on time and assists with alternative arrangements, so to reduce the trouble and inconvenience caused to passengers where disruptions occur. It does then facilitate enhanced protection of passengers’ rights and aims to secure a high level of protection for consumers as required by the European Union’s general principles of law. Notification of the cancellation is intended to facilitate means of redress and a mechanism for the protection of these rights. That is the purpose of the Regulation.
Where disruption occurred, and unless a notification was given and the reimbursement and assistance for re-routing were provided in due time, the regulation requires compensation to passengers based on the distance of the flight, unless the disruption was due to extraordinary circumstances, (Article 5(3), 261/2004). This is a punitive rule made for deterrence and does not require the passenger to suffer damages. The compensation further cannot be waived or derogated from by a contractual clause between the air carrier and the passenger. Preamble 15 deems extraordinary circumstances to exist where the events affect a particular flight on a particular day, so, where there is knowledge of the cancellation with sufficient time it is not applicable as grounds for not giving advance notice and availing the rights under the regulation to the affected passenger.
Furthermore, it is a requirement of the Court of Justice of the European Union (CJEU) that extraordinary circumstances must be proven by the air carrier, and they are defined restrictively so even where the cause for cancellation is extraordinary, it must be one which the air carrier had done all reasonable efforts to avoid but was nonetheless precluded from notifying the passenger. Furthermore, the event must not be one which may be considered taking place within the inherent operations of the air carrier, and as such a mere technical problem, although extraordinary, may still be considered part of the carrier’s normal operations and therefore within the scope of expected possibilities. More so, the event must be beyond the control of the operator, (Case C-549/07).
It is therefore clear that the reason for cancellation, even if proven to be caused by extraordinary circumstances on their own merit, (which is defined as what the normal term means in everyday speech), does not mean that they are extraordinary circumstances in the sense that they absolve the air carriers from their obligations under the Regulation and which have their essence the protection of the passengers’ rights.
Strictly regarding the timing of notification, it cannot be argued that where a flight was cancelled a week before the scheduled takeoff, that passengers which were not notified and assisted cannot claim compensation because the reason for the cancellation at the time being was an extraordinary event.
The event, occurring a week earlier, and creating the persisting conditions in which flights cannot take place, although extraordinary in its own right, is not sufficient to enable the avoidance of the obligations under the law. The fact that there was knowledge of the cancellation with sufficient time for the purpose of passenger notification, should provide then for the protection of the passengers’ rights by due notification. This is also in line with the preamble paragraph 15 to the Regulation.
The obligation to compensate can only be waived under extraordinary circumstances and where the passenger has been informed of the cancellation and was assisted with re-routing arrangements with sufficient time. However, reimbursement and assistance are still an obligation under the Regulation and so is informing the passengers of all their rights and re-routing possibilities.
It is evident then, that the time at which the knowledge of the cancellation is acquired by the operator is a crucial element in the operation of the passengers’ redress. Thus, the qualification for waiving compensation due to extraordinary circumstances which would restrict the redress for passengers is time dependent. That means, for example, that in the case of armed conflict or extreme weather conditions which disrupt the flight schedule, the use of “extraordinary circumstances” as grounds to avoid compensation under the Regulation is only applicable for flights to which the operator could have not reasonably notified the passenger of the cancellation on time due to the circumstances.
Further obligations exist under the Regulation as the requirement to inform the passengers of the assistance options, their rights, (as well as their rights to compensation) and the provisions of food, drinks, and accommodation in some cases. It is also a requirement under the regulation that the reimbursement is effectuated within 7 days. However, the enforcement of the rights under the Regulation seems to be more theoretical on the ground, and many passengers find it difficult to understand their rights and have them protected. Further, the claims usually consist of low sums of money and therefore create a threshold which inhibits litigation, and of course, many passengers do not care to go through too much trouble for enforcing debts of such sums of money. Especially when the operators make it difficult to reach their client support services and claims departments.
Considering all this, it is evident from our work at helder. corporate and tax, that some operators avoid all their obligations including reimbursement and re-routing assistance where extraordinary events have occurred days and even weeks before the scheduled flight, and so there was knowledge of the cancellation with sufficient time to provide the passengers with the protection sought. It seems that the operators capitalize over the lack of clarity regarding what the term extraordinary circumstances really mean and under what conditions they are exonerated from providing compensation.
In conclusion, both the gap of knowledge the consumer exhibits and the lack of simple redress mechanisms enable the operators to gain unwarranted sums of money over the consumer and there is a need for better propagation of information regarding air passenger’s rights within the European Union’s single market. But the answer to the information problem is primarily in educating the consumer, which in turn demands his or her rights and thus contributes to healthy markets and an improved consumer environment. As a corollary the protection of consumers within the European Union’s single market will benefit traders’ position as well, as a confident consumer will be more inclined to approach traders for purchasing products. Thus, at helder. corporate and tax we seek to establish a consumer awareness culture and make our insights public.
Eily Kimmerling LLM
kimmerling@helderadvocatuur.nl
Parkstraat 99, 2514 JH, The Hague, The Netherlands
