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A Short (Legal) Guide to Survive Travel Flights Chaos

Introduction

The past – almost – post-pandemic hot summer has brought a lot of people, European in particular, to spend their holiday time in other countries[1].Considering Europe (European Union’s Member States, especially), the forecast for the top destinations of international tourists are France, Spain, Italy and Greece[2].The tourism sector, from an economic point of view, has seen a recover from the previous year, even though some of the China travel restrictions, as well as the war in Ukraine, have slowed down this recovery[3].One of the favourite means of transport to visit Europe it has been, for years now, air transport[4], an economic sector that, in 2022, it too has seen a good retrieve from the abyss of the CoVID-19 restrictions, that burdened the sector from 2020[5].As mostly have noticed, in the previous weeks it has been reported many times that commercial flights are in a “travel chaos: travellers are facing chaos across the globe. Since May, U.S. airlines have cancelled more than 21,000 flights, or about 2.7 per cent of the scheduled total. […] However, the number of cancellations still pales in comparison to the European total.  Europe had more than double the cancellations of US carriers between April and June, data from flight tracking company RadarBox.com reveals. Between 1 April and 29 June, Europe’s top 10 worst performing airports cancelled a mammoth 64,100 flights[6].

The reasons behind such “chaos” have their roots both in the aftermath of the pandemic, the labour conditions as well as some international situations (such as the aforementioned war in Ukraine). With the worlds of the European Parliamentary Research Service: “The growing willingness to travel after the lifted Covid‑19 restrictions leads to another problem for the catering and transport sector. Due to the closure of transport facilities, hotels and restaurants during lockdowns, a high share of staff were made redundant. For instance, in the aviation sector, 191 000 European aviation workers lost their jobs. The rapidly increasing demand has resulted in labour shortages, as many of these workers cannot be rehired and there is no immediate possibility to hire a new workforce (for example, to carry out ground handling and security tasks, up to 10 weeks training is mandatory). The resulting higher workload for the remaining airport workers, coupled with precarious working conditions, such as ‘zero hour’ or seasonal work contracts, or the lack of wage adaptations compared to rising costs of living, has led to repeated strikes by ground handling workers, joined by pilots and cabin crew. This leads to flight disruption, cancellations and infringements of consumer rights[7].

So, a big flight travel chaos has hit Europe right away; in this guide we are going to see what are the rights of passengers of commercial flights, in Europe, when their flight is cancelled or delayed; when they are entitled to a reimbursement and/or a compensation, and when they aren’t. Lastly, we will try to understand what the “Extraordinary Circumstances” are.

The EU Legal protection of Passengers: Regulation 261/2004

First of all, the European Union has set a good and consolidated legal protection for passengers of commercial flights, embodied into the REGULATION 261/2004, REG. 2027/97 (CE) and REG. 889/2002 (CE)[8]. As stated in article 2 of the Reg. 261/2004, an “air carrier” is an air transport operated by a valid operating licence; for “operating air carrier” it means an air carrier that perform or intends to perform a flight under a contract with a passenger, with no regards if it is a legal or natural person (these are the conditions to establish the so-called “commercial flight”)[9].
Moreover, for the application of EU protection law, under article 10 of the REG. 2011/2005, the flight :
(1) must be operated inside the territory of EU and operated by a “community carrier” (see below, note 9) or a conventional air carrier

(2) arrives inside the territory of EU, departing from an extra-EU country and is operated by a “community carrier”

(3) departs within EU territory with an extra-EU final destination and is operated by a “community carrier” or a conventional air carrier

Or

(4) If the passenger has not already received benefits (such as compensation, alternative flights, assistance) for problem related to the flight in question under the legislation in force in a non-EU country

All these provisions apply both to scheduled and non-scheduled flights[10].
As a side note, due to BREXIT, starting from 1st of January 2021, the EU flight passengers protection law do NOT apply anymore to flight from UK toward EU territory if is operated by a UK air carrier or a “non-community air carrier”; nonetheless, if that peculiar flight is operated by a “community air carrier” the EU provisions still applies, unless the passenger has not already received benefits (see upward, n. (4)) under UK law.

As we can see, to establish if our is a flight which is covered by EU protections, it has to meet a lot of conditions; no worries though, most of the flights booked in EU territory through the most popular air carrier (such as Ryanair, Lufthansa, KLM, Air France, Vueling, ITA airways etc.), are certainly under this legal hat.

Delayed Flight

In case of a delayed[11] commercial flights, or in instances of denied boarding (which means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation), passengers, respectively under article 5 and 6 of the REG. 261/2004, may be entitled to financial compensation of up to €600 per person (article 7 of the quoted REG., as we will see in detail after) and special assistance.
In particular, according to article 6 (delayed flight), the air carrier is responsible if the delay is beyond its scheduled time of[12]:

  • 2 hours or more in case of flights up to 1500 km;
  • 3h or more for flights more than 1500 km and operated within the territory of EU;
  • 3h or more for flights between 1500 km and 3500 km (all kind of commercial flights);
  • 4h or more for every kind of commercial flights, not regarding here the provenance or the destination

In these cases, the air carrier is obliged to give the passengers assistance (article 9, REG. 261/2004), such as meals, refreshments, hotel accommodation (in certain cases), transport between the airport and the place of accommodation and a peculiarity: two, completely free of charges, telephone calls, telex, emails or fax messages![13]
In the case of a delay of 5h or more, the EU applies article 8(1)a of the regulation, which prescribes the right of a reimbursement of “the full cost of the ticket at the price of which it was bought for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant, a return flight to the first point of departure, at the earliest opportunity”[14], within 7 days from the request.

Cancelled Flight

When it comes to cancellation (the non-operation of a flight which was previously planned and on which at least one place was reserved, art. 2, Reg. 261/2004), article 5 recall the assistance of article 8, so the reimbursement we just talked and, in addition, a re-routing to the final destination through comparable transports means (ex. bus or train) at the earliest opportunity or “at a later date the passenger’s convenience”[15], that means within the last useful date for the passenger. Moreover, the passengers must be informed of possible alternative means of transport.
In both the cases seen above – cancellation and delayed – is applicable (with some adjustment) the right embodied in the article 7, of the same REG.: the right to compensation.
Shortly, compensation for cancelled flights amounts of:

  • 250€ for flights up to 1500 km;
  • 400€ for flights over 1500 km operated within the territory of EU; or
  • 400€ for flights between 1500km and 3500km, no regard of the departure or the destination (at least one of these must, of course, be inside the territory of EU or operated by a “community air carrier”);
  • 600€ for all other flights not falling under the previous provisions

Compensation under the provision just expressed are not due (art. 5(1)c, i-ii-iii) whether (i) the passengers are informed of the cancellation at least 2 weeks ahead of the scheduled departure time; or (ii) between 2 weeks and 7 days before the flight and are offered a re-routing that is no more than 2h before of the previously expected departure time and enable them to reach final destination less than 4h after the scheduled arrival time; or, lastly, (iii) they are informed less than 7 days and are offered them a re-routing (max 1h before and 2h after the above mentioned conditions).
Compensation for delayed flights is granted (under some circumstance we will discuss briefly) if the delay is at least 3h over the scheduled arrival time and amounts of the same total indicate just above with a slight difference for the non-internal EU flights over 3500 km, in which, if the delay is between 3h and 4h, the compensation is 300€, otherwise, if it’s more than 4h, compensation is 600€.
Further compensation (article 12) is still possible, even if the passenger has already been compensated under the rules of REG. 261/2004, article 7, unless the interested person have voluntary surrendered their reservations. Flights which have been brought forward by more than one hour is considered cancelled; a diverted flight to another airport, which does not serve the same town, city or region as the airport for which the booking was made, has to be treated as a cancelled flight, unless the airline provides for the transfer of passengers from the airport originally scheduled to the new airport of departure (art. 8(3)), not, in this ultimate case, affecting the possible compensation and/or reimbursement for delayed flight.

The reason for the delay in flight operations must be caused by the airline and the right to financial compensation flight delay must be claimed within 3 years of the delayed date of the flight[16].

The Extraordinary Circumstances

Everything seems pretty straight forwards, even though a bit complicated. But, unfortunately, there is something we haven’t yet spoke about; something of which REG. 261/2004 refers to multiple time and can drastically change the liability of the air carrier; something that is carved into the fundamental Montreal Convention[17]. We are referring to the so-called Extraordinary circumstances[18]. There is no clear definition (nor in REG. 261, nor the Montreal Conv.) for what can be considered an “extraordinary circumstance”; broadly speaking is a non-ordinary course of events during a transportation of passengers by air. Some classical examples are:

  • Bad weather
  • Terrorist threat
  • Political Instability
  • Natural disasters
  • Emergency landings
  • Management of Air traffic
  • Strikes

Under these cases, the air carrier claims no responsibility for the delay or cancellation of flights; therefore, airlines do not have to pay any compensation nor reimbursement. At first sight, the aforementioned conditions seem respondents to a logic of fairness between the air carrier and the passengers. A terrorist warning or a severe weather condition are not under the control of the airline. But the devil lies in the details, and the European Court of Justice (here-in-after ECJ) is an incredible details’ seeker. Let’s take the case of a bird strike, which is a collision of one or multiple birds with the aircraft. Flocks can damage badly the engine of airplane, resulting in possible emergency landings (see the famous case of the flight US Airways 1549, piloted by the USA national hero Chesley Sullenberg, aka Sully[19]). This is currently seen as an extraordinary condition, but the path to that conclusion is very tortuous: in 2011 a flight from Turkey to Manchester was hit by birds and delayed for more than 5h[20]; after a four-year legal battle, in 2015, a judge at Manchester County Court ruled “that bird strikes aren’t rare enough to be classed as an ‘extraordinary circumstances’. […] the judge said: “For my part I observe that the word used is ‘extraordinary’ rather than ‘unexpected’, ‘unforeseeable’, ‘unusual’ or even ‘rare’. Extraordinary to me denotes something beyond unusual.  “A motorway collision between two cars on a motorway is unusual but not extraordinary, whereas a motorway collision between a car, and say, a horse would be extraordinary[21]. On 28th July 2016 the EU Advocate General issued a statement saying that bird strikes “should not be considered as ‘extraordinary circumstances’”[22]. This definition was ruled out by the ECJ in the case C-315/15 of 4th May 2017, in which a bird flock that hits an aircraft is seen as an “extraordinary circumstances” due to the fact that the damage cause by the collision itself it is not link to the operating system of the aircraft (which is certain under airlines control), with the result that any possible aftermath of the accident is outside the actual control of the air carrier, which, therefore, bears no responsibility for the possible delay or cancellation of the flight.

The current definition is set but many questions (and claims) are still pending[23].

Strikes and Conclusion

Lastly, one of the most controversial and complicated definitions of “extraordinary circumstances”, one that is currently (summer 2022) affecting[24] the air travel world: Strikes.

Since strikes, as “extraordinary cirum.”, are not a clear cut, it will be more effective to start defining when they are not: doesn’t follow under the definition we are discussing, and so the air carrier is responsible, when it’s an internal strike[25]. When the strike took place among airline own staff, perhaps over pay and conditions, it is certain under the usual risk of business and so under the control of the airline. In this case, EU passengers protection law applies and articles 5-7-8-12 (see upward) could be appealed. Before this step forward of the ECJ’s jurisprudence (the sentence is of the 2020 and regarded a SAS pilots’ strike that took place in the April of 2019) the same principle was applied in a different rule[26] made by the same Court, precisely about the so-called “wildcat”[27] strikes. This kind of strike, founded out the Court, was not an “extraordinary circumstances” because making a distinction between different type of strikes on a national law basis would undermine the principle of uniformity of EU law; and so passengers are entitled to compensation (and any other measure that can be apply under EU laws). Even before that, in 2012 (Case C-22/11, Finnair Oyj v Timy Lassooy) the ECJ ruled that airlines should compensate passengers if they’re denied boarding as a knock-on effect of a strike; in particular, ruled that compensation must be paid because the flight of the passengers was rescheduled as a result of an airport ground staff strike two days beforehand.

Fundamentally, a strike is an “extraordinary circumstance” when is outside the possible control of the air carrier, for example when it’s owed to political reasons (even in the case of the same airline’s own staff that join the strike for reasons that have nothing to do with the strict working relationship that they bear with the airline). This is named external strike. In these cases, the air carrier endures no liability versus the passengers and compensation and/or reimbursement are not due.

In conclusion, it has to be kept in mind that the burden of the proof lies within the air carrier. They have to prove, to be exonerated from the possible application of the EU passengers protection law, that:

  • There’s a link between the “extraordinary circumstances” and the flight delay or cancellation,
    and
  • The delay or cancellation could not have been avoided even if all reasonable measures had been taken[28]

The EU laws on the protection of commercial flights’ passengers’ rights are probably one of the most advanced in the entire world; they add quite a lot of burden over the Airlines’ shoulders but at the same time safeguard life, time and pockets of millions of Europeans and non-European passengers that every year choose to jump on an airplane and take part in one of the most secure and innovative venture of mankind.

[1] Share of adults planning to go on a summer holiday in Europe from 2010 to 2022, STATISTA, JUL 21, 2022, https://www.statista.com/statistics/867979/summer-holiday-intentions-of-europeans/

[2] ETC, European Tourism: Trends & Prospects. Quarterly report (Q2/2022), Brussels, July 2022, https://etc-corporate.org/reports/european-tourism-2022-trends-prospects-q2-2022/

[3] “Worsening inflation, prolonged war disruption, the resurgence of the pandemic and economic turmoil continues to endanger the tourism outlook. Latest available data indicates that European tourist arrivals are 43% below pre-pandemic levels between January and March this year, whereas prospects for the overall year 2022 suggest that the region would have recovered 70% of pre-pandemic travel demand” from ETC, European Tourism: Trends & Prospects, ibidem, 2022.

[4] “Aviation is one of the most energy-intense forms of consumption, and has in the past been characterized by strong growth, with estimates that emissions have increased by a factor 6.8 between 1960 and 2018” in S. GÖSSLING, A. HUMPE, The global scale, distribution and growth of aviation: Implications for climate change, 1. Introduction, ScienceDirect, 1 November 2020, https://www.sciencedirect.com/science/article/pii/S0959378020307779

[5] “Until recently, recovery in air travel has largely been driven by domestic bookings. However, the di- minishing burden of Covid-19 travel restrictions (in most parts of the world), combined with pent-up demand, has allowed international bookings to close the gap. Indexed to 2019 levels, in May, the international travel recovery was briefly ahead of its domestic counterpart” ETC, European Tourism: Trends & Prospects, ibidem, 2022, p. 14.

[6] Quoted from C. ELTON, Why is the Travel Chaos affecting Europe so much more than the rest of the World?, in EURONEWS.TRAVEL, 05 July 2022, https://www.euronews.com/travel/2022/07/05/why-is-the-travel-chaos-affecting-europe-so-much-more-than-the-rest-of-the-world

[7] M. KISS, What to expect in the tourism sector this summer?”, EPRS, 20 July 2022, https://epthinktank.eu/2022/07/20/what-to-expect-in-the-tourism-sector-this-summer/

[8] The full title of the REG. 261/2004 is “[…] establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91”; here is possible to find the full legal documents, in various languages: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32004R0261.
The above mentioned are some of the most preeminent European law about the protections of the rights of passengers, but there are much more than those, such as the REG. 1008/2008 on common rules for the operation of air services in the Community.

[9] The article also defines “Community carrier” as an air carrier with a valid operating license granted by a Member State in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers

[10] Art 10(2), reg. 2011/2005. The main difference between a scheduled and a non-scheduled flight is the fact that the scheduled flight operates between airports governed by the route dispersal guidelines and a pre-approved time-table

[11] “The actual arrival time of a flight corresponds to the time at which at least one of the doors of the aircraft is opened […] is a decisive factor in determining the length of the delay” as stated in P. MENDES DE LEON, Introduction to Air Law, 10th ed., Wolters Kluwer, 2017, p. 269.

[12] In aviation are used different units of measurements, like foot, nautical miles, terrestrial miles, but the regulation we are describing uses km (kilometre), under the great circle route method; so it can be useful to indicate some sort of online sources that makes the conversion easier, like www.greatcirclemapper.net: https://www.greatcirclemapper.net/. In this site is possible to define the distance between routes specify for different aircraft

[13]Article 7(2), REG. 261/2004, here the link to the full text: https://eur-lex.europa.eu/resource.html?uri=cellar:439cd3a7-fd3c-4da7-8bf4-b0f60600c1d6.0004.02/DOC_1&format=PDF

[14] Article 8(1)a, REG. 261/2004, see note above for full text.

[15] Article 8(1)b-c, REG. 261/2004, ibidem.

[16] This also according to A. MARISCOTTI-WYATT, Airlane on Strike? Not an Extraordinary Cirumstance, Rules ECJ, AIRHELP, 24 March 2021, https://www.airhelp.com/en-int/blog/airline-on-strike-not-an-extraordinary-circumstance-rules-ecj/

[17] Convention for the Unification of Certain Rules for International Carriage by Air, 1999, Montreal.

[18] For further and deeper informations, P. MENDES DE LEON, Introduction to Air Law, ibidem, 2017, pp. 273-278.

[19] Departed from New York, destination Charlotte, the aircraft was hit by a flock of birds shortly after the take-off, losing both the engine. It water landed safely in the water of the river Hudson. A movie, Sully, was made after the accident, directed by C. Eastwood, starred T. Hanks. For more information: US AIRWAYS FLIGHT 1549, Wikipedia, last edit 30 July 2022, https://en.wikipedia.org/wiki/US_Airways_Flight_1549

[20] C. COX, Thomas Cook loses landmark bird-strike court battle over family’s delayed flight into Manchester, MANCHESTER EVENING NEWS, 7 May 2015, https://www.manchestereveningnews.co.uk/news/greater-manchester-news/thomas-cook-loses-landmark-bird-strike-9204092.amp

[21] PMLAW, Bird strikes ruled “not extraordinary circumstance” in compensation case, PmLaw, 2015, https://pm-law.co.uk/2015/05/bird-strikes-ruled-not-extraordinary-circumstances-in-compensation-case/

[22] P. DAVIDSON, Bird Strikes are deemed extraordinary by the Court of European Justice, FLIGHT DELAY PAY, 10th May 2017, https://flightdelaypay.com/bird-strikes-deemed-extraordinary-court-european-justice/

[23]Simon Calder writing in the Independent confirmed from his sources that many passengers had their claims stayed pending the outcome of CJEU rulings with compensation exceeding £1 million. We believe a bird strike should not excuse Airlines from compensating passengers. […] The CJEU should in our view have distinguished between minor bird strike which simply requires a safety check where compensation should be payable and those which cause damage requiring repair and extensive checks where compensation should not be paid.” in P. DAVIDSON, Bird Strikes are deemed extraordinary by the Court of European Justice, 2017, ibidem.

[24] “[…] remaining workers have launched a series of strikes over poor working conditions and pandemic era-pay cuts. BA, Ryanair, easyJet, Schiphol airport, and Lufthansa are among the airlines facing industrial action. Spanish Ryanair air crew last week announced 12 days of strikes in July, while easyJet staff will walk off the job for nine days. Firefighters at Paris’ Charles De Gaulle airport walked out last week, while Italian pilot unions have threatened increased action.” C. ELTON, Why is the Travel Chaos affecting Europe so much more than the rest of the World?, ibidem, 2022.

[25] ECJ case C-28/20, Airhelp v SAS: a strike organized by a trade union of the staff of an air carrier that is intended in particular to secure pay increases does not fall within the concept of an ‘extraordinary circumstance’ capable of releasing the airline from its obligation to pay compensation for cancellation or long delay in respect of the flights concerned. For full text see: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-03/cp210044en.pdf
Fore more info, see M. BLAKE, Are you entitled to compensation if your flight is affected by strikes?, TPG.CO.UK, 27 June 2022, https://thepointsguy.co.uk/news/compensation-airline-airport-strikes/amp/

[26] The sentence by the ECJ is from April 2018 and give response to numerous cases joined, namely: C-195/17, C-197/17 to C 203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 to C-286/17 and C-290/17 to C-292/17

[27] From the Wikipedia page WILDCAT STRIKE ACTION: wildcat strike is a strike action undertaken by unionized workers without union leadership’s authorization, support, or approval; this is sometimes termed an unofficial industrial action. The legality of wildcat strikes varies between countries and over time, although they are not typically criminal offenses. Contents. Online source (latest update 5 August 2022): https://en.wikipedia.org/wiki/Wildcat_strike_action  

[28] See EXTRAORDINARY CIRCUMSATNCE in the info page named Air passengers rights, EUROPA.EU, last checked 17/07/2022, https://europa.eu/youreurope/citizens/travel/passenger-rights/air/index_en.htm#ex-circumstances-cancellation-1

Marco Franzoso

Marco Franzoso, laureato presso la Scuola di Giurisprudenza dell'Università degli studi di Padova con tesi in Diritto Costituzionale Comparato e Diritto Internazionale. Ha perfezionato gli studi giuridici presso le Università di Bergen (Norvegia) e all'ELTE di Budapest (Ungheria). Attualmente frequenta l'Advance LL.M. in International Air & Space Law, presso l'Università di Leiden, Olanda. Collabora nell'area di Diritto Internazionale, con particolare interesse per il settore Air & Space Law.

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