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How I would love European Flight Compensation Regulation to Change

Florian Buechting Just Blogging No Comments

I recently told you about my very different pandemic and post-pandemic (re)booking experience with different airlines. The level of service given to the customer is very different, as you see there. Some airlines (definitely not only the ones I mentioned in the post) thereby break aviation regulations. The strongest and most important for me are the European Flight Compensation Regulation (or sometimes reffered to as European Passenger Rights). I feel that they are a great way to strengthen the rights of flight passengers – but on the other hand, it is too easy to airlines not to apply it. In this posting, I sum up, how I would change them.

Covid-19, Strikes and more – My Flight Rebooking Experience

I have to clearly state that I am not a lawyer. Some of the changes I suggest may not be compliant to European or international law, e.g. that the regulation applies to all flights passing the European Union. 

 

Flight Compensation Regulation in a Nutshell

I just give you the very basic of the Flight Compensation Regulation, which is legally referred to as EC No 261/2004). Others just do it better than me – I refer to the website of the European Union or the corresponding Wikipedia page if you feel for more details.

Roughly, EC 261/2004 works as follows:

  • The regulation applies for any flight starting from the European Union (EU) / European Economic Area (EEA) state and for any flight into the EU/EEA driven by airlines based in one of their member states. Switzerland and Norway applied to the regulation as well.
  • A flight may thereby contain several legs.
  • You need to have a confirmed reservation on a rate available to general public. Award flights are included this, other promotional rates (e.g. travel industry rates) do not count. In addition, the flight ticket must not contain helicopter flights, flights with fixed-wing aircrafts or a flight from Gibraltar Airport (GIB).
  • In case your flight is cancelled, you in general have the right to be re-routed to the next available flight with a comparable service, use the ticket at any later point in time or request a full refund.
  • In that case and depending on the total flight distance, you additionally receive 250/400/600 EUR. However, the airline does not have to pay the compensation if
    • The re-booking happens two weeks before the flight
    • The re-booking happens later, but they re-book you in a way that you have just slightly different arrival times at your destination. In that case, you may still receive a reduced compensation
    • the cancellation was caused by extraordinary circumstances
  • Any compensation has to be paid in cash or bank transfer. The passenger may accept vouchers, but does not have to do so. The compensation is meant to cover all your costs related to the delay. You cannot claim a higher rental car rate due to re-booking on top of that, for example.
  • Airlines have to make you aware at the check-in counter by a display about these rights

There are also numerous other regulations, e.g. the obligation of the airlines to provide communication, accommodation and meals, depending on the circumstances. There are also clear rules in case of operational downgrades (e.g. you booked a business class ticket and have to fly economy).

 

Why I feel that the Regulation doesn’t work

It is not only part of my personal experience, but common sense in the aviation community that airlines pay significantly less compensation than they should do. There are two reasons for that:

  • We, the passengers, are too lazy to go to court. I guess that already quite a lot of passengers, who had the right for a compensation, don’t claim it. However, depending on the airline, you regularly receive a decline from the airline, which is wrong from a legal standpoint. You have to go to court. You will very likely win the trial in that situation. However, people just don’t do it. Thus, it is economically very sensible for airlines to “cheat” their customers – even if a trial was expansive, it just happens too rarely.
  • I already used the wording “cheating”. Airlines also try to make you aware that EC 262/2004 is not applicable for your ticket. That is the typical way the decline of your request for compensation is working out. Typical examples are:
    • The most frequent method is claiming an extraordinary situation. Courts more and more defined (and limited) what is falling under this situation. Finally, there are just events like medical incidents to a passenger, very adverse weather or other really adverse situation. Vice versa, technical issues with the plane or limited availability of airline staff, including events like strike, do not count.
    • They try to state that the ticket is in fact not in line with the regulation. I was surprised when Lufthansa bring that up twice in 2022 with an award ticket, i.e. a ticket paid with miles
    • They try to argue that the delay was shorter than you claimed it. This just happens in very tight situations. However, the most common definition is that you compare your originally scheduled arrival time with the time the airplane door is opening at the gate or parking position. Please note that this may be significantly later than the plane touching the ground, e.g. when a parking position is not available. Vice versa, the Flight Compensation Regulation for example does not allow you to claim a compensation if you wait extraordinarily long at an immigration line or when your luggage is arriving very late / not at all.
  • Last, but not least, airlines tend to simply not to reply or to at least delay the process significantly. There are some regulations that they should react within a week roughly – but some airlines tend to make you wait two to three months, even if you are a frequent flyer with them. Again, you unfortunately have to mention Lufthansa in that context.

 

My Thoughts How to Change the Situation

To me, there are four classes of changes, which I feel should be changed, so that the Flight Compensation Regulation is in fact a rule, which is supporting the passenger in a fair, sensible and comfortable way and not leading to a situations where some airlines are doing nothing but aiming for lawsuits, which likely never happen. In addition to the four points below, I would favor that any flight, which is departing, arriving or including a transfer in the EEA is impacted by the regulation. I recently had a significant delay on a Lufthansa flight from Tirana Airport (TIA) to Frankfurt (FRA). While some people missed their connections in Frankfurt to European destinations (and were thus covered by EC 261/2004), a few missed their flight to the US and had to fly the next day. As Albania is no part of the EEA (and USA, of course, not as well), they did not receive compensation and even did not have the chance to at least cancel and refund the flight. I feel this is very unbalanced. But as it is touching international law, I just decided to concentrate on the points below:

 

Airlines have to declare and proof a Force Majeure Incident

I know that reversing the burdon of proof is a very critical legal demand. Without the presumed innocence, we still might have lawsuits like burning of witches in Europe. But on the other hand, once an airline is declaring a force majeure / extraordinary circumstance, the passenger is in a very unfortunate position. One of the key weak points of the regulation is also that there is no list of possible events which is splitting them into operational risks and decisions – and those events which are (in regards of the regulation) are out of control of the airline.

Thus, I feel that the only way to significantly ease the position of the passenger is to expect by default that there the flight delay has not been caused by an extraordinary circumstance. If the airline feels that a delay might be out of their responsibility, they have to declare explicitly and give the reasons for it, including a reference to the (hopefully, future) list of events. Ideally, I would love to have this checked by an authority (e.g. the national aviation authority). This might sound like a hell of work for this unit – but finally I feel that most of this class delays caused can be processed very quickly, e.g. because they are caused by bad weather, medical incididences or similar events.

 

Definition of a Delay Event

I feel that another very weak point of the EC 261/2004 is that it is not really clear what a delay of a certain duration is. I give you some examples of a (bit of messy) flight.

  • The (example) flight from Warsaw (WAW) to Frankfurt was expected to land at 9:30 hrs
  • The plane touched down at 11:00
  • The parking position was blocked. Thus, the flight had to wait and reached parking position at 11:25
  • Due to a lack of staff, the jetbridge came late and the front door has been opened for deboarding at 11:40.
  • Luggage handling was lame. The first bag arrived at the belt on 12:20, the last one at 12:35

You can easily find a (typically, precise enough) time for the touch down point in time on platforms like flightradar24. You may also reconcile when the plane reached its final parking position in a way that you can use it at court. The opening of the jet bridge and luggage handling is typically much harder to proof (there are ways to do it, though, as well). The typical definition of the delay, by the way, is the opening of the first plane door. Thus, in this example, the place had a delay as defined in the regulation. But it is not explicitly given in there.

Especially luggage handling has been a huge issue during the last years and may finally lead to the same effect for passengers like plane delays. Vice versa, you could argue that people traveling with carry-on luggage only have a disadvantage here. In addition you would have to define a target delivery time for luggage and add it to the two / three / four hours  That’s a very difficult discussions. If you think of flights from Europe to the USA, immigration waiting times could also have similar effects. Regardless which definition you favor, I guess that many of you will agree that a clear definition of the end of a flight would be helpful.

 

Information and Communication

During the last three years, I saw a wide span of service attitude in regards of the information of a cancellation or a delay in regards of the reason and the compensation options. Thus, I feel that EC 261/2004 should also set communication standards.

  • Already at the departure airport and in the plane, the airlines shall be obliged to give the reason for the delay and if there is the potential for extraordinary circumstance event.
  • This information shall be given as a written information (e.g. by text message or e-mail) about any flight delayed by at least one hour
  • Similarly, when an airline is refusing to give you a benefit defined by the regulation, they shall give you a written version of the reason why they decline (again, by e-mail or similar), even if you have contacted them personally (e.g. at a ticket counter) or by chat or phone.

The rationale for that is that Is saw that airlines tend to give you wrong legal information. As you see in the posting I stated above, Lufthansa twice explicitly told me that EC 261/2004 is not valid for award tickets. It is very hard to proof reasons given you by the phone. Thus it feels that some airlines want to have you on the phone, as the burden of proof is much more difficult.

 

Automated Processes and Strict Timelines

I discussed a bit above that regulation on the communication of airlines in case of delays feels to be very essentional to me. Unfortunately that does not solve one issue: if you are on the phone with a call center, some airlines obviously train their agents to hang up in certain situations. Thus, I feel that you also need to have better rules how quick airlines have to response and in what is happening in case of very short notice cancellations.

I would also try to urge airlines to have automated systems until a certain point in time. While I need to call British Airways maybe in one out of four cases of a flight delay or cancellation and can deal with all other issues in their excellent online tool. Lufthansa is practically forcing you to call them – which leads to massive queues, even for higher class status flyers. Finally, their system feels to be designed to de-motivate the passenger to pursue his/her rights more and more over time by delaying the process. That is unbearable in my point of view. You also need timelines in regards

 

 

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