FLIGHT INCONVENIENCES

THE RIGHT TO FINANCIAL COMPENSATION

Regulation 2004/241/EC

Until a few decades ago, air transport was for a select few, Today, whether for leisure or work, Air travel is part of our everyday life. As often happens, the increase in the use of a service leads to an increase in the problems and inefficiencies associated with it. For these reasons the community legislator has introduced some common rules in the field of compensation e you assistance of passengers in cases of denied boarding, flight cancellation o delay through the adoption of Reg. CE 241 of the 2004. These are rules aimed at guaranteeing a high level of protection for passengers in the face of serious inconveniences and annoyances resulting from the loss or delay of a volo booked up.

Application requirements.

The Regulation of 2004 provides protection in cases of flight loss or delay under specific conditions.

The prima be it scheduled flights, charter or low cost – whether departing from an airport:

  1. located in one Community state (to nothing, noting the community nature or otherwise of the airline);
  2. located in a Non-European country with destination to a community airport provided that the airline is a community one.

I am excluded, Therefore, and flights between non-EU countries (even if the carrier is EU) and flights from a third country to an EU country purchased from a non-EU airline.

The second condition is that the passenger has made the reservation of the flight and that the acceptance (check-in) within the time indicated in the flight ticket or, lacking, at least in advance 45 minutes before the departure time.

The compensation hypotheses.

The Regulation of 2004 recognizes passengers a series of rights a condition that they have booked a flight that, for reasons attributable to the airline (contractual carrier o operating carrier), has been cancelled, denied boarding or delayed departure time.

Flight cancellation. The most frustrating hypothesis for passengers is certainly the one failure to perform a scheduled flight. To this hypothesis, the European Court of Justice equalized the return of a flight that took off at the departure airport. Cases of flight cancellation may arise for commercial reasons, technical or by facts not attributable to the carrier (such as the presence of fuel or foreign bodies on the track or technical failures of the car caused by hidden manufacturing defects or acts of sabotage).

The flight delay. It occurs when the actual departure time is postponed than the time indicated on the ticket. It must be a delay prolonged that is, higher than the limits established by the Community Regulation identified on the basis of the air route. In particular, the delay must be at least two hours for routes within i 1500 Km, from three hours for routes within i 3500 Km e di four hours for the higher routes. In these cases, the only one is recognized right to assistance (that is, meals and drinks and, where necessary, hotel accommodation). However, the European Court of Justice has equalized the delay of at least three hours upon cancellation of the flight, recognizing the same prejudices endured by the passenger and extending, consequently the right to pecuniary compensation.

Denied boarding. It is the airline's refusal to transport the passenger who shows up at the gate. The typical hypothesis is that ofoverbooking, that is, the sale of tickets in a greater number than the seats available on the flight.

The right to pecuniary compensation.

In the cases of flight cancellation oh you denied boarding, the passenger has the right to receive monetary compensation from the airline which is called pecuniary compensation. It is aimed at compensating the passenger for the inconvenience and any damage he suffers as a result of the delay or cancellation of the flight. Unlike the provisions of the Civil Code, in which the damage and its exact quantification must be proven, in the foreseen cases of cancellation or denied boarding, il damage is presumed and the compensation is due for the sole fact of having found the flight canceled or denied.

The European Court of Justice ruled on the cancellation of the flight Departure delay of more than three hours, recognizing, interpretively, the right to pecuniary compensation also in this case.

Since it is a presumed damage, the Community Legislator has linked the compensation not to the cost of the ticket, but rather to length of the route existing between the departure airport and the final destination airport, regardless of the existence of any stopovers. Compensation, in particular, is equal to 250 € for routes less than 1500 Km, ai 400 € for the routes between i 1500 Km eat 3500 Km to eat 600 € for the higher routes.

These amounts must be paid by the Airline on the basis of a claim proposed by the passenger who is the victim of the cancellation, of delayed or denied boarding by certified email. Where the Carrier does not provide within 6 weeks, it is the passenger's right to appeal to the judicial authorities (the Justice of the Peace, except for any major damage deemed to have been suffered) within two years from the date of the booked flight.

The Regulation of 2004 excludes the right to financial compensation in case the flight cancellation communicated to the passenger at least 2 weeks before; or, at least 7 days before if an alternative flight was offered with departure no more than two hours before the original one or less than 7 days before if the alternative flight departs no more than one hour before the original one.

Furthermore, is excluding the right to compensation, where the Carrier has demonstrated that the cancellation or denied boarding was caused by circumstances of an exceptional nature not attributable to him, i.e. facts that were neither foreseeable nor avoidable even using all the resources available to the airline.

The right to a refund or re-routing.

In addition to financial compensation, the passenger, in cases where it suffers flight cancellation where he denied boarding, he has the right – at choice – al ticket refund within 7 days o al return flight to the initial departure point. This choice can be considered consistent with the provisions of the Civil Code which, gives to the unsatisfied creditor, in reciprocal performance contracts, the choice between compliance (the return flight) and termination of the contract (ticket refund).

This does not exclude the passenger, despite the inconvenience, can retain the interest a reach the final destination destination e, then, the Regulation of 2004 attributes to the passenger a different choice to reach the arrival airport, that is, boarding the alternative flight as soon as possible where he alternative flight at a later date of the passenger's convenience.

Both solutions retain the right to the class chosen when purchasing the ticket and to financial compensation.

Additional compensation.

The Regulation of 2004 provides the right to compensation as a form of lump sum compensation for presumed damages. This means that the passenger only needs to provide proof of their travel document and attach the breach (flight cancellation or denied boarding) or incorrect performance (flight delay). This compensation does not exclude that the passenger may have suffered greater damages due to the cancellation or denied boarding than those compensable with the amount provided for by the Regulation.

However, the greater damages are subtracted from the presumed nature of those compensated with the amounts established by the Community Legislator and, therefore, must be demonstrated according to rules governing the burden of proof by the injured party.

The regulatory sources that help for the additional damage are: the Montreal Convention That, as it is a convention of international law, applies to all international flights where departure and arrival points are located within the contracting countries (for the case of flight delay) and theart. 949 bis Navigation Code (for the case of cancellation or denied boarding).

Both regulatory sources place the responsibility of the Carrier for damages suffered by the passenger and proven by him, except theburden of proof to demonstrate that all necessary and possible measures have been adopted to avoid the occurrence of the harmful event causing the damage proven.

Il compensation, in compliance with the rules of Italian law, is extended to both patrimonial damages, and to non-pecuniary damages in the form of moral prejudice, who, However, must be classified as non-babagellar damage, that is, in terms of inconvenience or annoyance, but in terms of damages characterized by gravity and seriousness and, in any case, afflictives of the assets subject to constitutional protection (Cass. Sez. III 10 maggio 2015 n. 12088).

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