We will analyze certain aspects related to the application of the Regulations in certain situations and how the case law has interpreted certain points of the Regulations that raise questions. We will focus mainly on the interpretations adopted by the Court of Justice of the European Union (“CJEU”), and will discuss some cases retained by the highest court in France, theCourt of Cassation. This is not an exhaustive analysis, as there are many cases, but we will stick to the most frequently asked questions.
The following are some interpretations of various situations that may give rise to ambiguities regarding either the application of the regulations or the carrier’s liability:
Proof of presence on board
The CJEU, in an order of 24 October 2019 (Case C-756/18), ruled in favour of passengers. The Court determined that:
[…] passengers on a flight delayed by 3 hours or more on arrival and with a confirmed reservation cannot be refused compensation […] on the sole ground that, at the time of their claim for compensation, they have not proved their presence at check-in for that flight.If they have not been transported, it is up to the airline to demonstrate this.
In addition, the national courts of the European Union member states have accepted that passengers who do not have a boarding pass can prove their presence on board with the help of a “bundle of indices”.
Here are a few examples:
- Copies of receipts for purchases at the airport;
- Copying baggage tags;
- Photos taken in the boarding area.
Compensation for delay or cancellation
Flight Distance
Compensation is set by the regulations according to the distance of the flight, as explained in the “Right to compensation” capsule. This distance is calculated between the initial starting point and the end point according to the distance as the crow flies, regardless of the distance actually travelled.
The ambiguity that existed on this point had been resolved by the CJEU in its decision Birgit Bossen v Brussels Airlines SA/NV (C-559/16) of 7 September 2017.
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Matches
THE CJEU of 11 July 2019, CS and Others v. České aerolinie a.s. (Aff. C-502/18 ) confirmed that it is not possible for the carrier which operated the first flight to exonerate itself by claiming that the delay suffered is due to the subsequent flight operated by another air carrier.
In that decision, the Czech (European) airline had operated the first flight and a non-European airline had operated the second flight. The passenger had suffered a delay of more than 3 hours on the second flight, but his claim for compensation was refused by the Czech company, on the pretext that his flight had not been delayed. However, the two flights were the same booking. The Court ruled that the Czech airline had an obligation to compensate the passenger because the two flights were on the same reservation. The passenger had rightly applied to the European airline for compensation, even though the delayed flight was operated by a non-European airline (see also CJEU, 31 May 2018, Claudia WEGENER v. Royal Air Maroc SA ( Aff. C-537/17 ).
Thus, a single booking with several connections is subject to the application of the Regulation, even if several flights are operated by several airlines, whether European or not. As soon as the criteria for the applicability of the Regulation are met, the Regulation applies to all flight segments.
The question of “wet leases ” and the concept of ” operating carrier “
When an airline starts a new route or runs out of aircraft during peak periods, it may decide to lease an aircraft, full crew, maintenance and insurance to another airline. Operational costs and fees will be borne by the leasing airline.
With respect to the liability of the respective carriers, the Court concluded that the Regulations will not apply to the carrier that leases an aircraft and the crew under such a contract, as it does not assume operational responsibility for the flights. The setting of the itinerary and the operation of the flight are decided by the tenant carrier. Therefore, only the latter can be held liable for any compensation.
This is how the CJEU ruled, on 4 July 2018 in W. W., T. M., R. M., G. W. v. Thomson Airways Ltd, (Aff. C-532/17) . It is always the actual carrier operating the flight (has control over the itinerary and schedule) that is responsible for the obligations of the Regulations to passengers.
Double compensation: travel agency and package travel
The travel agency is responsible, towards the customer, for the proper performance of the contract when it sells a package (flight and hotel or car rental). It is therefore responsible for compensating the passenger in the event of a delayed, cancelled or denied boarding.
In the event of an airline’s bankruptcy , the company will never be able to compensate customers. If passengers booked the flight as part of a package, the travel agency will be obligated to refund the tickets and compensate the passengers.
In the case of package travel, the existence of a right to reimbursement under Directive (EU) 2015/2302 on package travel is sufficient to exclude the possibility for a passenger to obtain a refund of his or her ticket from the carrier. Indeed, the right to reimbursement cannot be combined. It will be the responsibility of the travel agency to ensure that the passenger is compensated. That analysis emerges, in particular, from the CJEU decision of 10 July 2019, HQ v. Aegean Airlines ( Aff. C-163/18 ).
Schedule change
When there is a schedule change, such as a change in the departure time of a flight or a cancellation, the compensation granted may depend on when the passenger became aware of it. However, this obligation is incumbent only on the operating carrier, both for contracts of carriage concluded directly between the passenger and the air carrier and for contracts concluded through an online travel agency.
For example, if the airline has simply informed the travel agency and is unable to prove that a passenger was informed of the cancellation of their flight more than two weeks before the scheduled departure time, it is required to compensate the passenger. This interpretation follows from the CJEU decision, 11 May 2017, Bas Jacob Adriaan Krijgsman v. Surinaamse Luchtvaart Maatschappij NV ( Aff. C-302/16 ).
Upgrade and downgrade
When the airline assigns a passenger a replacement flight due to a disruption, the passenger must offer the passenger a service and class comparable to that of the passenger’s original ticket. However, if it turns out that there is an upgrade or downgrading that is necessary, certain terms and conditions apply.
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Upgrade |
Decommissioning |
| The carrier cannot claim a surcharge. | The air carrier is required to reimburse:
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Extraordinary circumstances
Our exemption page states that it is only possible for the airline to be exonerated from liability if the disruption is due to an extraordinary circumstance that could not have been avoided even if all reasonable measures had been taken.
Here are some examples retained by case law (CJEU or national courts):
Aircraft struck by lightning before departure
The Court of Cassation has issued a decision concerning an aircraft that was struck by lightning when it was still parked. Following an inspection by aeronautical engineers, the aircraft no longer met the minimum safety requirements. The airline made the decision to send a replacement aircraft, but a delay of more than 3 hours was still recorded.
The Court specifies that this situation corresponds to an extraordinary circumstance, since the airline clearly could not have prevented the disruption even if it had taken reasonable measures (Court of Cassation, 1st Civil Chamber, September 12, 2018, No. 17-11.361).
Wildcat strike by staff
It is possible for the airline to exonerate itself from liability if the measures are not inherent to the normal exercise of the air carrier’s activity.
The Court of Justice of the European Union has issued a decision concerning the sick leave of all employees of an airline following a restructuring announcement.
The Court affirms that a “wildcat strike” by cabin crew decided following the surprise announcement of a restructuring does not constitute an extraordinary circumstance allowing the airline to release itself from its obligation to pay compensation. The Court specifies that the risks resulting from the social consequences accompanying such measures must be considered as inherent in the normal exercise of the activity of the air carrier concerned (CJEU, 17 April 2018, Helga Krüsemann and Others v TUIfly GmbH, Joined Cases C-195/17, C-197/17 to C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 to C-286/17, C-290/17 to C-292/17).
Presence of gasoline on the track
Another decision (C-159/18, André Moens V.Ryanair Ltd), dealing with the carrier’s liability, concluded that the presence of petrol on an airport runway that has led to its closure is considered an extraordinary circumstance, and this, when the petrol in question does not come from an aircraft of the carrier which operated that flight.
Indeed, this circumstance could not have been avoided even if all reasonable measures had been taken within the meaning of the Regulation.
Finally, it is possible to conclude that there is a broad possibility of a situation that could adversely affect flight planning. It is then necessary to carry out an analysis exercise with care and rigor for each of them on a case-by-case basis, since each disturbance has unique circumstances. Failure to carry out such an analysis could result in the loss of the right to compensation for the passenger who has been the victim of a disruption.
If your flight is disrupted, we invite you to contact our team to analyse your case and determine the rights to which you are entitled.