Passengers’ Rights in the event of denied boarding, cancellation and long delay of flights under Regulation (EC) No. 261/2004

By Dr. Nicole Vassallo – Junior Associate

The arrival of the most awaited season for many denotes a rise in disputes between passengers and air carriers. Regulation (EC) No. 261/2004, which repealed its predecessor, Regulation (EEC) No. 295/91, came into effect in February 2005 with the aim of ensuring a high level of protection for passengers and harmonising conditions between carriers in the field of air transport, which it sought to achieve by establishing common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellation or delay.

The Regulation limits its scope to two categories of passengers; those departing from an airport located in a Eurpean Union (EU) Member State and those departing from an airport not located in an EU Member State, if the operaring air carrier of the flight concerned has a valid operating license granted by a Member State in line with the relevant EU legislation on the licensing of air carriers.

1. Denied Boarding

A passenger is deemed to have been denied boarding on a flight against his/her will, when the air carrier refuses to carry him/her despite the presentation of a valid ticket indicating that the reservation has been accepted by the air carrier.

This typically happens when an air carrier sells more tickets than it has seats available. In this situation, the air carrier must first call for volunteers willing to forfeit their reservations and accept a delayed flight, in exchange for benefits. Where there are no (or not enough) volunteers, the remedies available to passengers who are denied boarding will apply, including but not limited to monetary compensation, which is quantified depending on the distance of travel, namely:

A. For flights of 1,500km or less – €250

B. (i) For flights within the EU of more than 1,500km – €400

(ii)For all other flights between 1,500km and 3,500km – €400

C. For all flights not falling under the above – €600

The passenger is also entitled to receive assistance in the form of (a) reimbursement of the full cost of the ticket at purchase price within 7 days, or (b) re-routing under comparable conditions to one’s final destination at the earliest opportunity or at a later date, at the passenger’s convenience.

When a passenger is offered re-routing in terms of point (b) above, the operating air carrier has the discretion to reduce the monetary compensation payable by 50%, where the arrival time does not go beyond the scheduled arrival time of the flight originally booked, by; 2 hours for flights of 1,500km or less, by 3 hours for flights within the EU of more than 1,500km and all other flights between 1,500km and 3,500km and by 4 hours for flights not falling under the above.

Passengers denied boarding are also entitled to meals and refreshments, hotel accommodation where a stay of one or more nights becomes necessary, transport between the airport and place of accommodation and two telephone calls, fax messages or e-mails.

2. Flight Delay

Similarly, in the event of flight delay by the air carrier, the latter is required to compensate the passenger with (a) meals and refreshments and two telephone calls, fax messages or e-mails (b) hotel accommodation and transport, when the reasonably expected time of departure is at least the day after the original time of departure, and (c) reimbursement of the full cost of the ticket at the price of purchase within 7 days as well as, when relevant, a return flight to the first point of departure at the earliest opportunity, when the delay is at least 5 hours long.

When is a flight considered to be delayed beyond its scheduled time of departure?

A. For flights of 1,500km or less – 2 hours or more

B. (i) For flights within the EU of more than 1,500km – 3 hours or more

(ii)For all other flights between 1,500km and 3,500km – 3 hours or more

C. For all flights not falling under the above – 4 hours or more.

3. Cancellation

Finally, in the event of a cancelled flight, passengers are entitled to reimbursement of the full cost of the ticket and, where applicable, a return flight to the first point of departure or re-routing as explained above, together with meals and refreshments, two telephone calls/emails and the remedies connected with overnight stay, if required. In the event of cancellation, passengers are also entitled to monetary compensation in terms of points 1-3 under denied boarding (above), except in cases where:

1. The passenger is informed of the cancellation at least 2 weeks before departure;
2. The passenger is informed of the cancellation between 2 weeks and 7 days before departure and when offered re-routing, the departure of the alternative flight is less than 2 hours earlier and the arrival is delayed by less than 4 hours
3. The passenger is informed of the cancellation less than 7 days before departure, and when offered re-routing, the departure of the alternative flight is no more than 1 hour earlier and the arrival is delayed by less than 2 hours;
4. The operating air carrier proves that the cancellation is imputable to exceptional circumstances, such as security risks, weather conditions and strikes that affect the operation of an operating air carrier.

Finally, it is incumbent upon every operating air carrier to inform passengers of their rights following denied boarding, flight cancellation or delay of at least 2 hours, by means of written notice laying down the rules for compensation and assistance in line with the rules described above. The Regulation also caters for the needs of persons with reduced mobility and unaccompanied children, who in the event of flight cancellation, denied boarding or delay, must be provided with immediate care as soon as possible.