When You Are and Are Not Entitled to Flight Delay Compensation

The holiday season is approaching. People often plan their long-awaited days off outside their usual environment - by travelling. Travelling can take many forms, but undeniably the fastest way to reach a foreign country of one's choice is to take a flight. However, circumstances sometimes arise where a flight cannot operate or is delayed. In most cases these situations relate to the aircraft's technical condition or adverse weather.

We might not have started looking into compensation mechanisms had we not encountered this ourselves. In 2013, well in advance, we booked a flight to Crete, a transfer, and a hotel - which, pursuant to Section 1, Paragraph 5 of the Tourism Law, is considered a combination of tourism services, i.e. a package tour. The surprise came at the airport, when it was announced that departure was being delayed for an indefinite period. This information was later clarified: departure would be delayed by 3 hours. The flight distance was more than 1,500 km. The carrier: SIA "SMARTLYNX AIRLINES".

Legislation

[1] Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights are established by EC Regulation 261/2004 [1].

Article 5 - Cancellation

1. In the event of cancellation of a flight, the passengers concerned shall:

c) have the right to compensation by the operating air carrier in accordance with Article 7 [..]:

Article 6 - Delay

1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

a) for two hours or more in the case of flights of 1,500 kilometres or less; or

b) for three hours or more in the case of all intra-Community flights of more than 1,500 kilometres and of all other flights between 1,500 and 3,500 kilometres; or

              [..] the assistance specified in Article 9 shall be offered [..]

Article 7 - Right to compensation

1. Where reference is made to this article, passengers shall receive compensation amounting to:

a) EUR 400 for all intra-Community flights of more than 1,500 kilometres, and for all other flights between 1,500 and 3,500 kilometres;

3. The compensation referred to in paragraph 1 shall be paid in cash [..]

Article 8 - Right to reimbursement or re-routing

1. Where reference is made to this article, passengers shall be offered the choice between:

a) reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket

2.  [..] also applies to passengers whose flights form part of a package, except where such rights arise under Directive 90/314/EEC [..].

Article 9 - Right to care

[2] In its judgment of 19 November 2009 in joined Cases C-402/07 and C-432/07, the Court of Justice of the European Communities ruled that:

"Articles 5, 6 and 7 of the Regulation must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the Regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. However, such a delay does not give rise to a right to compensation in favour of passengers if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier."

[3] Section 1, Paragraph 5 of the Tourism Law defines that

a package tour is a combination of tourism services prepared in advance or at the customer's request, which relates to:
a) a period longer than 24 hours and includes at least two of the following tourism services - transport, accommodation or another tourism service that is not an ancillary transport or accommodation service and accounts for a proportionally significant part of the combination of tourism services.

Why Was Compensation Not Paid?

Response from SIA "SMARTLYNX AIRLINES":

The flight was delayed by 3 hours and 2 minutes.

The right to monetary compensation (Article 7 of the Regulation) is available to passengers only in the case of flight cancellation (Article 5 of the Regulation), not in the case of flight delay (Article 6 of the Regulation).

The provision of Article 8(1) could not be applied, as the flight was part of a package tour.

In fulfilling the requirements of the Regulation, all passengers were provided with food and refreshments; the carrier also had a passenger service representative at Riga Airport who ensured communication possibilities where needed.

PTAC (Consumer Rights Protection Centre) clarification:

From the carrier's response, PTAC concludes that the aircraft arrived slightly earlier than planned, and in this particular case the flight arrived at its destination with a delay of 2 hours and 49 minutes. The carrier has no obligation to pay you compensation for the flight delay under the provisions of the Regulation.

The carrier also noted that, since the flight was part of a package tour, it was not possible to fulfil the reimbursement of the full ticket price as set out in Article 8(1)(a) of the Regulation.

Conclusions

1. In the event of a flight delay of more than 3 hours, the carrier must provide the care required by the Regulation. In practice this takes the form of a free meal and one small glass of a beverage, served once already on board the aircraft.
2. The Court of Justice of the European Union ruled that compensation is also payable to passengers in the event of a delay (depending on the length of the delay and the distance of the destination). In practice this means that passengers have no way of verifying the actual delay time. PTAC too relies on the information provided by the carrier.
3. If a flight is delayed (except for specified exceptions, e.g. weather conditions) by at least 5 hours, the passenger has the right to claim a ticket refund. A ticket refund may be refused if a package tour is used. In simple terms - if the ticket price is not listed as a separate line item on the invoice. Be careful when purchasing packages, for example, travel + accommodation, travel + insurance, etc.!

References:

[1] EC Regulation 261/2004 - http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0261:LV:HTML
[2] PTAC. Flight Delay - http://www.ptac.gov.lv/page.php?id=244