Which are the obligations of air carriers due to Regulation (EC) No 261/2004?
The Regulation (EC) No 261/2004 deals with four categories of unacceptable transportation service:
- Denied boarding (Article 4 of Regulation (EC) No 261/2004)
- Cancellation (Article 5 of Regulation (EC) No 261/2004)
- Delay (Article 6 of Regulation (EC) No 261/2004)
- Upgrading and downgrading (Article 10 of Regulation (EC) No 261/2004).
Depending on the situation, compensation, care and assistance will become necessary. Furthermore, air carriers are obliged to inform passengers of their rights (obligation to inform pursuant to article 14 para 1 and para 2 of Regulation (EC) No 261/2004).
To which kind of flights does the Regulation (EC) No 261/2004 apply?
The Regulation (EC) No 261/2004 applies to all passengers boarding a flight on the territory of the European Union.
Furthermore, the Regulation also applies to passengers boarding a flight from a third country to an airport of the European Union, if the operating air carrier is one of the European Union.
The provisions specified in Regulation (EC) No 216/2004 refer both to scheduled and charter flights including flights that are part of package tours.
In which cases can I not refer to Regulation (EC) No 261/2004 although a cancellation, delay or denied boarding is existing?
The Regulation (EC) No 261/2004 does not apply to the following cases:
- The place of departure is located in a non-EU country (so-called third country) and the operating air carrier is also a non-Community carrier
- The passenger concerned is not in the possession of a confirmed reservation
- The passenger concerned did not check in at the timed agreed upon or, if no time was indicated, did not arrive 45 minutes at the latest prior to the departure time in order to check in
- The passenger concerned travelled free of cost or at a reduced fare that was not available to the public
- There are reasons in connection with health, general or operational safety or insufficient travel documents
What is a cancellation in terms of Regulation (EC) No 261/2004?
A cancellation in terms of Regulation (EC) No 261/2004 is the non-operation of a planned flight for which at least one seat was booked.
A cancellation of the flight by the passenger is no cancellation in terms of Regulation (EC) No 261/2004.
Which rights do I have according to Regulation (EC) No 261/2004, if I am concerned by a cancellation as a passenger?
In case of a cancellation, the passenger has the option to have the ticket costs reimbursed, to claim a different kind of transport and, if necessary, to make a return flight to the first point of departure (right of assistance according to article 8 para 1 of Regulation (EC) No 261/2004). Further care such as meals and refreshments, possibilities of telecommunication, hotel accommodation and transfer between aiport and hotel (care according to article 9 of Regulation (EC) No 261/2004) depend on the individual case. Moreover, due to Regulation (EC) No 261/2004, the air carrier is obliged to pay for damage, which is the so-called compensation in accordance with article 7 of Regulation (EC) No 261/2004, if the passenger has not been informed of the cancellation at least two weeks before the date of departure.
The sum of the compensation depends on the distance of the booked flight amounting to:
- for flights of 1,500 km or less EUR 250
- for all intra-Community flights of more than 1,500 km and all other flights between 1,500 and 3,500 km EUR 400
- for all other flights EUR 600
In case of certain preconditions, the compensation can be reduced by 50 % (article 7 para 2 of Regulation (EC) No 261/2004).
What are extraordinary circumstances?
Extraordinary circumstances are e.g. political instability, strike, weather conditions and unexpected flight safety defects. The existence of such extraordinary circumstances must be checked in the individual case.
Are technical defects extraordinary circumstances releasing the air carrier from the obligation to pay a compensation?
Technical defects occurring from time to time during the operation of an aircraft are principally no extraordinary circumstances in terms of Regulation (EC) No 261/2004 and thus no reason to refuse the compensation on the part of the air carriers (see judgement of the European Court of Justice (ECJ) dated 22 December 2008 - C-549/07 ("Wallentin-Hermann" ./. Alitalia - Linee Aeree Italiane SpA).
Do I have any rights arising under Regulation (EC) No 261/2004, if I cancel my flight?
The cancellation of a flight by a passenger is not laid down by Regulation (EC) No 261/2004.
Potential rights to reimbursement against the air carrier - in particular due to taxes and fees - must be enforced by legal procedure. This is not within the responsibility of the Luftfahrt-Bundesamt.
The limitation period for civil claims resulting from the legal relationship between passenger and air carrier principally follows the Civil Code. If you are not sure, consult a lawyer or make use of the consumer protection services.
The aviation authorities have no influence on the sum of the handling fees.
The reimbursement of taxes and fees or their non-reimbursement is no provision of Regulation (EC) No 261/2004.
What is a delay in terms of Regulation (EC) No 261/2004?
The term "delay" is used within the scope of Regulation (EC) No 261/2004 with reference to two aspects:
A delay in terms of article 6 of Regulation (EC) No 261/2004 is a departure delay by at least two hours. The longer the flight distance, the longer the waiting time passengers must accept:
- for flights of 1,500 km or less at least a waiting time of 2 hours
- for all intra-Community flights of more than 1,500 km and all other flights between 1,500 and 3,500 km at least a waiting time of 3 hours
- for all other flights at least a waiting time of 4 hours
2. The so-called "long arrival delay" in terms of the jurisdiction of the European Court of Justice (ECJ)
Due to the jurisdiction of the ECJ - judgements dated 19 November 2009, joined cases C 402/07 and C-432/07 ("Sturgeon"), dated 23 October 2012, joined cases C-581/10 and C-629/10 ("Nelson") and dated 26 February 2013, case C-11/11 ("Folkerts") - passenger rights were further strengthened in case of a considerable arrival delay. Passengers whose flights are considerably delayed, i.e. having an arrival delay of more than 3 hours at the final destination, will be equated with those passengers whose flights were cancelled regarding the payment of compensation. The final destination is the destination according to the ticket presented at the check-in counter or, in case of connecting flights, the destination of the last flight of a booking.
There is no claim for compensation, if the long delay is due to extraordinary circumstances.
Which rights do I have in accordance with Regulation (EC) No 261/2004, if I am concerned by a delay?
1. Departure delay
In case of a delay, the operating air carrier must offer meals and refreshment in a reasonable relation to the waiting time as well as two free telephone calls, telex or fax messages or e-mails. Further rights are graded in accordance with the duration of the delay as well as the distance.
2. "(Long) arrival delay"
Due to the jurisdiction of the European Court of Justice (ECJ) mentioned under question 9, there is a claim for compensation (depending on the distance) amounting to EUR 250 / EUR 400 / EUR 600 provided that the provisions are fulfilled; the compensation can be reduced by 50 % under certain conditions.
There is no claim for compensation, if the long delay is due to extraordinary circumstances
What is denied boarding in terms of Regulation (EC) No 261/2004?
In terms of Regulation (EC) No 261/2004, denied boarding is the refusal of the air carrier to transport a passenger although he arrived at the gate in time and no acceptable reasons for denied boarding are given.
When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier.
Acceptable reasons for denied boarding are e.g. infectious diseases, insufficient travel documents as well as general and / or operational safety.
In terms of Regulation (EC) No 261/2004, denied boarding does not exist, if the passenger arrives delayed at the check-in counter.
Which rights do I have in accordance with Regulation (EC) No 261/2004, if I am concerned by denied boarding?
In case of denied boarding, Regulation (EC) No 261/2004 provides care and assistance (refreshments, meals, telecommunication services and other options of transport) as well as a flat payment for damage, the so-called compensation. The sum of the compensation results from the flight distance.
Passengers voluntarily surrendering their reservations can in exchange demand a benefit from the air carrier, which is to be agreed under conditions between the passenger and the air carrier.
What is an upgrading in terms of Regulation (EC) No 261/2004 and which are the rights of the passenger in case of an upgrading?
Upgrading means the placing of a passenger in a class higher than that for which the ticket was purchased. Due to this fact, the air carrier may not request a supplementary payment
What is a downgrading in terms of Regulation (EC) No 261/2004 and which are the rights of the passenger in case of a downgrading?
Downgrading means the placing of a passenger in a class lower than that for which the ticket was purchased. In this case the air carrier is obliged, within a period of seven days, to reimburse part of the ticket price (30 % / 50 % / 75 %) depending on the flight distance.
If, in connection with an alternative transport due to a flight incidence, the passenger is placed in a class lower than that for which the ticket was purchased, this is no downgrading in terms of Regulation (EC) No 261/2004.
Which are the tasks of the Luftfahrt-Bundesamt in connection with Regulation (EC) No 261/2004
The Luftfahrt-Bundesamt is the National Enforcement Body for Regulations (EC) No 261/2004 and No 1107/2006, among others, monitoring as such, in terms of a supervision based on trade law, that the provisions of the a.m. regulations are complied with by the air carriers.
In this function, the Luftfahrt-Bundesamt is not responsible for enforcing the claims under civil law of passengers towards the air carriers. The passenger himself must enforce his claims under civil law, if applicable, supported by a conciliation body (see the following questions 17, 18, 19).
Which rights do I have in case my luggage was damaged or has been lost?
On the basis of the Montreal Convention, damages can be claimed towards the air carrier, if luggage is damaged during a flight or has been lost.
As to the Montreal Convention, the passenger has to observe reporting delays. The air carrier must be informed in writing about damages on checked baggage within 7 days upon receipt. If the luggage arrives delayed, a report on damages must be completed within 21 days upon its receipt.
Damage and loss of luggage are not laid down by Regulation (EC) No 261/2004.
As the Luftfahrt-Bundesamt is at present not responsible for damages to luggage, it is thus not acting in this field.
However, at the initiative of the passenger, the conciliation bodies will also become active in case of damages to, losses or delays of luggage.
Which rights do I have in order to enforce my civil claims against the operating air carrier?
First of all the passenger concerned must enforce his claims against the operating air carrier.
Should the air carrier not or not sufficiently compensate the passenger's claims, he/she has the possibility of enforcing them within the framework of complaint proceedings or summary proceedings for debt. The Luftfahrt-Bundesamt is not involved in this procedure.
Concerning flights as of 1 November 2013, the passenger may chose to address to a conciliation body in air traffic, as an alternative to the complaint proceedings or summary proceedings for debt. It is free of costs for the passenger concerned to contact a conciliation body.
The Luftfahrt-Bundesamt is the National Enforcement Body for Regulations (EC) No 261/2004 and No 1107/2006 monitoring as such, in terms of a supervision based on trade law, that the provisions of the a.m. regulations are complied with. The Luftfahrt-Bundesamt, however, is not responsible for the enforcement of civil claims of passengers towards the air carriers.
Which conciliation bodies do exist?
The provisions of the LuftVG (Air Navigation Act) provide a conciliation organized under private law for the members participating in it and the official conciliation process for those air carriers that are not organized under any private conciliation body.
The conciliation organized under private law is at present (exclusively) carried out by the söp Schlichtungsstelle für den öffentlichen Personenverkehr e.V. (The German Conciliation Body for Public Transport) www.soep-online.de. Please find the companies belonging to the supporting association of the söp on the relevant website.
As far as an air carrier does not participate in a conciliation organized under private law, the Official Conciliation Body with the Federal Office of Justice is responsible.
How does the conciliation process in air traffic take place?
Provided that the passenger has already directly addressed to the air carrier without success, he/she can make use of the conciliation. The söp is at present charged with the conciliation the process of which is carried out according to the procedural rules determined for the conciliation body. For further information please see a general scheduling of a conciliation.