The EU passenger rights law that won’t help you

Are the EU rules enough for passengers? (Elliott/Flickr)
Here’s another episode in the “Our Lawyers Interpret EU 261 Differently” drama that has been playing itself out on this site since the controversial European passenger-rights law passed in 2004.

Lorry Rubensteen’s LOT Polish Airlines from Warsaw to Chicago on Nov. 6 was delayed because of mechanical problems and finally canceled, she says. (You can see the details on FlightStats if you have an account.)

She detailed her problem in an email to LOT:

My flight was to leave at 4:30 p.m. It was then changed to 8 p.m., then to 9:30 p.m. The flight was cancelled at 9:15 p.m.

I was told I would be compensated in money for the cancellation of the flight.

(The promise to which she refers is a brochure handed out to delayed passengers, which informs them of their rights under EU 261.)

Rubensteen also described problems with the hotel room and logistics getting the passengers to and from the airport. Nothing unusual for a mechanical delay, but inconvenient, nonetheless.

“I would like to know how much compensation and when will I be paid for the cancellation of the flight and the way we were all treated that night,” she wrote to the airline.

Here’s LOT’s response:

Please accept our sincere apologies for all inconvenience you experienced due to the delay of the flight LO003 on 6th November, 2011 .

Maintaining our flight schedules is of paramount importance to us and we do not delay or cancel a flight unless it is absolutely necessary to do so.

In such cases we endeavour to offer our passengers adequate assistance and keep them informed. Our records show the passengers from the delayed flight were provided with meals and beverages. Much to our regret, it is not always possible to predict when exactly flight operations can be regained and we apologise if we failed to meet your expectations with respect to regular updates.

A technical fault of the aircraft planned to operate the flight LO006 on 27th September 2011 was unexpected and unavoidable and could have impinged on flight safety, what indicates extraordinary circumstances.

As we realise the situation might have disrupted your arrangements we would like to offer you a 50 percent discount on a economy class return ticket on any route operated by LOT Polish Airlines. Please be informed the discount does not apply to internet fares and taxes. This offer is valid for 1 (one) year from the date of this letter and can be completed only at LOT Polish Airlines office.

We hope that you are able to view this situation as an isolated incident, and your future travels will be satisfactory in every respect.

A few strange things about that reply. First, the European courts have ruled that mechanical delays don’t constitute an “extraordinary” delay, which is the only way out of the EU law that requires cash compensation. Also, the dates are a little weird. What does the 27th of September have to do with this complaint?

That answer doesn’t work for Rubensteen, either. Some of her fellow passengers had received cash for their trouble, and she wants to get the money, too.

I suggested that she write back, explaining that LOT’s interpretation of EU 261 was incorrect. She did. Here’s what it had to say:

Please be advised that pursuant to Article 5, point 3 of Regulation EC No 261/2004 establishing common rules on compensation and claims in the event of flight irregularities, the carrier is not obliged to pay compensation as stipulated in Article 7, if the cancellation of flight is the result of extraordinary circumstances which could not have been foreseen or avoided despite due action taken.

Regulation EC No 261/2004 explicitly points out that extraordinary circumstances are those which can adversely affect the flight safety and which are beyond the carrier’s control.

In the light of the above, we are not in a position to accede to your request for compensation.

That’s disappointing. LOT and its codesharing partner, United Airlines, are playing a dangerous game with this interpretation of EU 261, because it’s only a matter of time before an attorney specializing in aviation law is delayed, sues, and brings a new set of restrictions on the airlines and their flawed reading of this consumer law.

But still. If this were happening in the States, a coupon for a future flight would be exceedingly generous. Heck, I’d be doing backflips if my airline offered me anything above and beyond what it’s required by regulation to do.

It’s all a matter of perspective.

Christopher Elliott

Christopher Elliott is an author, journalist and consumer advocate. You can read more about him on his personal website or contact him at chris@elliott.org. Got a question or comment? You can post it on our help forum.

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  • $22654045

    Lot or United Airlines under European law as you stated owes the passenger compensation. European courts have ruled on this several times, especially in cases of mechanical problems.

    That the airlines don’t want to pay is understandable; they are playing hard ball, especially due to the fact that she is now in the US.

    Probably now the only way she can collect the money is to sue the airlines in a European court. US courts would probably look at the Contract of Carriage which would NOT apply in a European court.

    By the way 261 would apply to any american airline operating out of the EU, since they have to be licensed to operate here. On the other hand I would not try collecting on an american airline in a US court.

    BTW Chris I feel to see why this law of consumer protection is controversial; on your side of the Atlantic perhaps, not on ours.

    You do every one a disservive by continuing to say so, perhaps understandably so, since consumer protect is controversial and virtually non existent on your side.

  • JT

    I sincerely wonder if the (few) people who voted that they offered her enough compensation even read the article.  It’s clear that LOT is blatantly violating EU 261, which is the law in Europe.  So if they’re clearly shirking their legal responsibilities, how can that be enough compensation?

    *shakes head*

  • cjr001

    Sounds like this airline is trying to work like a US-based airline and avoid their responsibilities.

  • Pdoggs

    Due to my own experiences with a cancelled flight out of the EU I wonder if ANYONE ever gets the compensation they are owed by law.  In my case we were put ON the plane, the doors were closed, then we were off boarded and told the flight was canceled. We were not given the papers about EU 261, in fact the majority of passengers (including most of the European ones) had no idea the laws said we could get compensation.  It was due to me and my reading your columns for years that got the word out.  The Delta staff was far from happy with me and they let me know it.

    Delta of course fought my filing, the reasons the flight was cancelled were “extraordinary circumstances” they said.  Who knows why the flight was really cancelled?  Who determines if it’s cancelled to “extraordinary circumstances” or just plain cancelled?  I think the AIRLINE makes that call.   

    I fought it with Delta and then took it to the French aviation authorities who agreed with me that I was owed compensation.  Delta ignored the French authorities as well, just stopped responding to them.  I then found out that basically there is NO meat behind these laws, there is no way to make the airlines pay outside of a big lawsuit.  The aviations authorities have no authority to make the airlines do anything even if the airlines are completely in the wrong.

  • IGoEverywhere

    You are stuck if you are not ready to pay a lot of $$$ for a class action suit. The important issue would then be was it a ticket issued by United or a ticket issued by LOT. Code share is convenient, but when thinks head south, they get complicated.

  • $22654045

    Unfortunately the french aviation authorities can not order Delta to do anything, for that you need a judicial decision by a french court of law. There is the equivelent in France of the US “Small Claims Court”,it’s called Judiction de Proximite”. You don’t need a lawer to appear before such a court. This court can make rulings upto  a value of 4000€.

    They have already ruled on this type of affaire in favor of the passenger. You should have no trouble.

    There is MEAT behind these laws, airlines such as Ryan have already paid, but you have to go through the proper proceedure, as anyware, which I admit is hard to do if your in the US.

  • Pdoggs

    I went through the proper channels as outlined on the website (http://ec.europa.eu/transport/passengers/air/air_en.htm) which says if you don’t get satisfaction you should contact the aviation authorities in whatever country your flight was from.  How is anyone supposed to file in small claims court in another country?  Why should passengers even have to go to court to get compensation they are owed by law? 

  • Jasper Nijdam

    European Airlines play the “rebate coupon” game with EU261. They flat-out deny all claims until they’re taken to court. Plenty of people won’t go though the trouble, especially those not residing in the EU. Luckily, there are many internet companies that are more than happy to help you file your claim in court (for a part of the proceeds).

    There is a significant problem with enforcing this rule because there is no such thing as EU law enforcement. Hence, you have to rely on the local (in this case Polish) judicial system. Good luck with that.

  • JPainis

    Whether or not this was ‘extraordinary’ is debatable (it wasn’t foreseeable), but it really is good of LOT to cancel the flight if flight safety is at risk. If the EU courts are going to start fining airlines for every sort of mechanical delay, flights are going to go out anyways, even if there are safety issues.

  • Andrew Burmeister

    Some time ago I heard about these folks, who claim to fight on behalf of passengers (in exchange for a portion of the compensation, I presume) under EU 261. I have not used them myself, but I could see value in doing so, especially for passengers based in the US. http://www.euclaim.co.uk/

  • LFH0

     It seems unlikely that she would have to go to Europe to sue, and might be able to recover in a U.S. court.

    In Giannopoulos v. Iberia, No. 11-c-775 (N.D. Ill. 2011), decision available at http://lawyersusaonline.com/wp-files/pdfs-3/giannopoulos-v-iberia-lineas-aereas-de-espana.pdf, on a motion to dismiss, the court held that EU 261 (and its interpretation by European courts) could be enforced against the airline, in the United States, since the regulation was incorporated by reference in the carrier’s own contract of carriage, as a voluntary and self-imposed undertaking. LOT’s contract of carriage, at article 10, also incorporates EU 261.

    In Wallentin-Hermann v. Alitalia, No. C-549/07 (Eur. Ct. of Justice 2008), summary available at http://curia.europa.eu/en/actu/communiques/cp08/aff/cp080100en.pdf, an “extraordinary” circumstance was found to be a narrow exception, one beyond the carrier’s control, and not encompassing technical problems discovered (or should have been discovered) during the course of maintenance do not count as “extraordinary.”

    The case against Iberia was the only one I found after a quick search of U.S. cases for relevant “EU 261” decisions. It was not decided on the merits, and it was decided by a single district court in Illinois without benefit of further proceedings or appellate reviews. Nonetheless, it appears to me to be rather persuasive.

  • I don’t believe EU 261 says anything about offering Monopoly money in lieu of cash being acceptable…  But I could be wrong.

    I flight voucher isn’t cold, hard cash.

  • DavidYoung2

    Americans don’t have the same ‘us vs. them’ mentality that is so common in Europe.  We see companies more as partners and less as enemies, so what we consider ‘reasonable’ the Europeans don’t and demand, “their rights.”

    Perhaps a reasonable common ground is a quid pro quo.  If an airline lets passengers cancel their tickets and get a refund or full value later (ie, Southwest) then the airline can do the same.  If they charge a fee, any long delay or cancellation means they have to pay CASH compensation in the same amount as the fee they charge.

    Make it a level playing field and people won’t feel taken advantage of by the airlines.  They won’t always like it, but they will understand that the rules apply equally both ways.

  • Chris, there are companies in Europe that will go after European airlines for the appropriate EU compensation.  Yes, it’s for a percentage of the comp but in this case it would be worth it.  I would recommend she contact one of those companies because they do have the experience in these issues.

  • You are correct. EU 261 specifically states it must be in cash not vouchers.

  • $16635417

    Article 7 Paragraph 3 states that travel vouchers are acceptable, with a signed agreement from the passenger.

    (So if you are offered them, be careful what you sign!)

    EDIT: Link to EU261.

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:EN:PDF

  • $16635417

    If given an option, and the cash and voucher amount are equal, take the cash. If the voucher is considerably more, I may be swayed to take the voucher.

  • dsliesse

    Ignoring for a moment the merits of the law, the fact is that it is the law.  As far as I understand it, LOT owes the passenger compensation, period.

    Regarding concerns about flights being dispatched that are unsafe: I imagine the fines in those cases would be a LOT bigger than the compensation for canceling.

  • Joe Farrell

    If, in the face of several clear on-point legal decisions to the contrary, as appears here, a company would be in violation of the Illinois Consumer Fraud Act if they continue to intentionally and as a routine practice misrepresent their legal obligations in such a manner as to lead consumers to believe they are not entitled to certain rights.  Such brings treble damages, punitive damages, attorneys fees and injunctive relief. . . .

    Just saying . . .  a brief letter pointing out the potential risks for relying on intentionally misleading legal conclusions may bring immediate relief.  ..

    A landlord cannot claim that they are not bound by the nondiscrimination rules in housing because a court in Mississippi in 1956 said that they do not have to rent to those of a race different from the landlord . . . .its simply not the law and not good grounds for a defense . . .

  • scapel

    Am I to understand that the pasenger did not get a refund on the money she paid for the flight and the airline did not fulfill their obligation to get her to her destination.

  • No, she flew the next day. LOT/United got her to her destination.

  • It probably would have been helpful if Ms. Rubensteen could have had the citation to (or better yet, an English language copy of) the European court ruling which you mention, so she could have referenced that when she contacted LOT for a second time.  At least that might have forced the airline to come up with a way to distinguish the facts of the situation involved in that ruling from those related to Ms. Rubensteen’s cancelled flight, or throw in the towel and properly compensate her.

    As far as the initial response to her from LOT and the reference to a September 27th flight is concerned, perhaps the airline simply cut and pasted part of response to a similar passenger complaint related to that flight into its rejoinder to Ms. Rubensteen without bothering to proofread it for accuracy before it was mailed.

  • LFH0

     I don’t see why a class action would be warranted. An ordinary individual action, perhaps pursued in small claims, would seem to be sufficient.

  • LFH0

     The term “extraordinary” has been interpreted as meaning “beyond the carrier’s control,” not “unforeseeable.” I believe that the intent of the directive was to encompass mechanical delay, and assume that to be the case, the courts are obligated to enforce that intent, even if it might be better, from a public policy perspective” to use a different rule. The decision on what rules should be used is to be determined by legislatures, not judiciaries.

  • TonyA_says

    Note: this is just my opinion.

    The single biggest mistake people do is they DO NOT ASK THE COMPENSATION IN MONEY OUTRIGHT !

    Look at her first letter:

    “I would like to know how much compensation and when will I be paid for
    the cancellation of the flight and the way we were all treated that
    night,” she wrote to the airline.

    Don’t ask questions. You ASK for compensation immediately!
    Of course, this means you have:
    (1) researched the regulations and make sure it applies to your case
    (2) computed the compensation due you and state WHY
    (3) crafted a clear and concise claim for compensation under EC261/2004.

    If the airlines sense it can push you around, it will.

  • TonyA_says

    Chris, all she needs to do is  send another request/claim for EUR600 and state that the airline is incorrect in using the “extraordinary circumstances”  clause. Otherwise, demand that LOT prove it.

    The European Court of Justice has already ruled that airlines MUST PROVE that the cancellation was really beyond its control. They cannot merely say or claim it wholesale to escape paying compensation.

    http://ec.europa.eu/dgs/legal_service/arrets/07c549_en.pdf

    The Court stated that “extraordinary circumstances” may be regarded as covering only circumstances which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond the actual control of that carrier on account of its nature or origin. The Court pointed out that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. The resolution of a technical problem which comes to light during aircraft maintenance or is caused by failure to maintain an
    aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity and cannot therefore constitute as such an “extraordinary circumstance” within the meaning of Article 5(3) of the Regulation.
    The Court added that the Community legislature intended to confer exemption from the obligation to pay compensation to passengers in the event of flight cancellations not in respect of all extraordinary circumstances, but only in respect of those which could not have been avoided even if all reasonable measures had been taken. It follows that the onus is on the party seeking to rely on them to establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices – to prevent the extraordinary circumstances with which it was confronted from leading to the
    cancellation of the flight. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken all reasonable measures to relieve that carrier of its obligation to pay compensation.

    It must be noted that LOT had problems with the same flight a few days earlier so they cannot claim the problem was not “foreseeable”.

    Lot – Polskie Linie Lotnicze (LO) #3 Flight Tracker
    Warsaw Frederic Chopin (EPWA / WAW) TO Chicago O’Hare Intl (KORD)
    Scheduled Departure 04:30PM CET – Arrival 07:36PM CST

    Date Aircraft Departed Arrival Duration
    09-Nov-2011 B763/Q 07:12AM CET 10:10AM CST 9:57
    07-Nov-2011 B763 10:15AM CET 01:17PM CST 10:01 <—- this one
    02-Nov-2011 B763 04:40PM CET 08:05PM CDT Cancelled
    01-Nov-2011 B763 04:40PM CET 07:48PM CDT Cancelled
    30-Oct-2011 B763 05:36PM CET 09:23PM CDT 9:47

    Source: http://flightaware.com/live/flight/LOT3/history

  • EU is still fair , perhaps the habits and laws of different
    countries and between countries to have this result

    http://www.sino1store.com