The Air Passengers Rights Regulation 2004 (Regulation (EC) No 261/2004) is a regulation in EU law establishing common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellations, or long flight delays. It requires compensation of €250 to €600 depending on the flight distance for delays over of at least three hours, cancellations, or being denied boarding from overbooking. Delays shorter than three hours means no entitlement to any compensation of any kind even if the delay was classified as non-extraordinary. Airlines must provide refreshments and accommodation where appropriate. The Court of Justice of the European Union has interpreted passenger rights strictly, so that there are virtually no exceptions for airlines to evade their obligations for breach of contract.
Passengers may pursue compensation claims directly with airlines or seek assistance from specialised flight compensation claim management companies.
It repealed Regulation (EEC) No 295/91, and went into effect on 17 February 2005.
Applicability
The regulation applies to any passenger:
- departing from an airport located in the territory of a Member State to which the Treaty applies;
- departing from an EU/EEA member state, or
- travelling to an EU/EEA member state on an airline based in an EU/EEA member state
if that person:
- has a confirmed reservation on the flight, and
- arrived in time for check-in as indicated on the ticket or communication from the airline, or, if no time is so indicated, no less than 45 minutes prior to the scheduled departure time of the flight
or
- has been transferred from the flight for which he/she held a reservation to some other flight
unless
- the passenger is travelling on a free or discounted ticket not available to the general public, other than a ticket obtained from a frequent flyer programme.
It does not apply to helicopter flights, to any flight not operated by a fixed-wing aircraft, nor to flights from Gibraltar Airport. While Switzerland, Iceland and Norway are not members of the EU, the regulation does apply to flights to and from these countries as if they were member states under bilateral agreements.
Denied boarding
Before denying passengers boarding involuntarily, the airline is required to first seek volunteers to give up their reservation in return for whatever benefit is negotiated between the airline and the volunteers. Irrespective of such negotiation, such volunteers are also entitled to reimbursement or rerouting.
If insufficient volunteers are obtained, the airline may then proceed to involuntarily deny passengers the right to board their flight. All passengers so denied must be offered all three types of compensation and assistance.
If the passenger is denied boarding for reasons of health, safety and security, or inadequate documentation, the passenger may not be entitled to compensation or assistance.
Cancellation
If a flight is cancelled, passengers are automatically entitled to their choice of
- re-routing to the same destination at the earliest opportunity (under comparable conditions);
- later rerouting, at the passenger's convenience, to the same destination under comparable conditions (subject to seat availability); or
- a refund of the ticket as well as a return flight to the point of first departure, when relevant.
Any ticket refund is the price paid for the flight(s) not used, plus the cost of flights already flown in cases where the cancellation has made those flights of no purpose. Where applicable, passengers are also entitled to refreshments, communication and accommodation as described below. Where re-routing is to another airport serving the same destination, the airline must pay for onward transport to the original airport or to a close by destination agreed with the passenger. These choices, and the entitlement to refreshments, etc., apply to all cancellations, regardless of whether the circumstances are extraordinary or not.
It is unclear whether "the earliest opportunity" requires airlines to endorse a ticket onto another carrier.
The airline is also required to pay cash compensation as described below, unless one of the following conditions applies:
- the airline notifies the passengers at least two weeks prior to departure
- the airline notifies the passengers between one and two weeks prior to departure, and re-routes passengers so that they can:
- depart no more than two hours earlier than scheduled, and
- arrive no more than four hours later than scheduled
- the airline notifies the passengers less than one week prior to departure, and re-routes passengers so that they can:
- depart no more than one hour earlier than scheduled, and
- arrive no more than two hours later than scheduled
- the cancellation was caused by extraordinary circumstances that could not have been avoided by any reasonable measure.
The airline must also provide an explanation to passengers of alternative transport.
Flight types
The requirements for an entitlement to compensation and the specific amount owed depend on the length of a flight, whereas the relevant distance is determined according to the great circle method. The Regulation differentiates between three types of flights:
- Flights of less than 1,500 km (930 mi) in distance;
- Flights within the EU of greater than 1,500 km (930 mi) in distance, or any other flight of greater than 1,500 km (930 mi) but less than 3,500 km (2,200 mi) in distance;
- Flights not within the EU of greater than 3,500 km (2,200 mi) in distance.
Note: In the rest of this article, types 1, 2 and 3 are used to refer to the above thresholds.
Delays
Passengers are entitled to refreshments and communication if the expected delay of the arrival exceeds:
- two hours, in the case of a type 1 flight,
- three hours, in the case of a type 2 flight, or
- four hours, in the case of a type 3 flight.
Furthermore, if the flight is expected to depart on the day after the original scheduled departure time, passengers are entitled to accommodation.
If a flight is delayed by five hours, passengers are additionally entitled to abandon their journey and receive a refund for all unused tickets. They may also ask for a refund on tickets used already if the flight no longer serves any purpose in relation to their original travel plan, and, if relevant, a flight back to their original point of departure at the earliest opportunity.
Flight delay is based on the scheduled arrival time. This is defined as when the doors are opened on the plane and not when it lands.
Although not set out in the text of the regulation, a series of court cases created a rule that in case of an arrival delay of more than 3 hours, passengers are entitled to cash compensation, unless the delay is caused by extraordinary circumstances. Unlike the entitlements to refreshments, communication, or accommodation, this 3-hour threshold does not scale with the distance of the flight.
In October 2017, an EU Court of Appeal confirmed the UK CAA's interpretation that the final destination must be included in the total delay. This means that, if the passenger misses a connection outside the EU and ends up with a delay longer than the times indicated above, even if the delay on the flight leaving the EU was less than the aforementioned times, the total delay will be used and not only the delay on leaving the EU.
Compensation and assistance
There are three broad categories where airlines may be required to make payments or otherwise assist passengers, in cases of delays, flight changes/cancellations or denied boarding.
Cash compensation
If the requirements for a compensation are met, Article 7 of Regulation (EC) No 261/2004 obligates the operating carrier to offer each passenger a lump-sum payment of:
- €250, in the case of a type 1 flight;
- €400, in the case of a type 2 flight;
- €600, in the case of a type 3 flight.
Where a passenger has been rerouted due to cancellation or denied boarding, the above amounts are payable if the passenger's actual arrival time exceeds the scheduled arrival of their originally booked flights, by two/three/four hours for type 1/2/3 flights respectively. But if rerouting only exceeds the arrival time by less than these thresholds, half of the specified amounts are payable as compensation.
Said cash payments merely serve to compensate a traveller's inconvenience and do not replace or form a part of any potential reimbursements for unused tickets, trips in vain, additional transport costs, meals and accommodation.
Airlines are not obliged to provide cash compensation in the case of extraordinary circumstances which could not have been avoided even if the airline took all reasonable precautions, according to Article 5, Paragraph 3.
Rerouting or refunding
Rerouting or refunding is, at the passenger's choice, one of the following three reimbursements:
- Repayment of the cost of unused flight tickets, and for used tickets where the flight(s) taken no longer serve(s) any purpose in relation to the passenger's original travel plan, and where applicable, a flight back to the original point of departure at the earliest opportunity
- Rerouting under similar conditions to the intended final destination at the earliest opportunity
- Rerouting under similar conditions to the intended final destination at the passenger's leisure, subject to the availability of seats.
If a passenger's destination is an airport at a city with multiple airports and rerouting results in the passenger being taken to another of those airports, the airline must also pay for transport for the passenger to the original intended airport or an agreed nearby destination.
Refreshments, communication and accommodation
When passengers become entitled to assistance, they must be offered, free of charge,
- Meals and refreshments in proportion to the waiting time
- Two telephone calls, fax or telex messages, or emails
- Hotel accommodation and transport between the airport and the hotel, if a stay of one or more nights, or a stay additional to that intended by the passenger becomes necessary
In the case of a delay, the airline may withdraw or abrogate these entitlements if offering them would delay the flight further.
Upgrades and downgrades
If a passenger is placed in a higher class than that for which a ticket was purchased, the airline may not request any additional payment.
If a passenger is placed in a lower class than that for which a ticket was purchased, the airline must refund 30/50/75% of the cost of the ticket for type 1/2/3 flights. For the purpose of this condition, flights to the French overseas departments are not considered to be within the European Union. In the 2016 ECJ case of Mennens v Emirates referred by the Düsseldorf District Court, it was ruled that where a ticket covered multiple flights and did not attribute the cost of each flight separately, the percentage refund was to be based on the distance of the affected flight divided by the total distance the passenger is entitled to travel. Taxes and charges that do not depend on the class of ticket purchased can be excluded from the calculation.
Method of refund
Refunds and compensations payable under this regulation may be paid in cash, by electronic bank transfer, bank draft, or cheque. With the signed agreement of a passenger, they may also be paid in travel vouchers or other services.
Obligation to notify passengers
Airlines are obliged to display a notice at their check-in counters stating:
Additionally, when an airline cancels a flight, denies a person boarding, or incurs a delay exceeding two hours to a flight, it is obliged to provide each passenger affected with a written notice setting out their rights under the regulation, and the contact details of the national body tasked with enforcing the regulation.
Relevant court cases
In the case Wallentin-Hermann v Alitalia—Linee Aeree Italiane SpA (Case C-549/07) of 22 December 2008, the European Court of Justice in Luxembourg ruled on the interpretation of Article 5 of the regulation relating to cancellations, specifically paragraph 3 which states:
An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
The Court agreed with Wallentin-Hermann that any technical issues during aircraft maintenance don't constitute "extraordinary circumstances" that would allow airlines to avoid paying passengers compensation for canceled flights.
This case therefore closed the loophole which had allowed the airlines to abuse passengers by frivolous interpretation of "technical or extraordinary circumstances"; it further defined the phrase and limited its exploitation. The definition of "technical and/or extraordinary circumstances" by the Court now stands firm and solid: any carrier must prove that the alleged mechanical problem leading to the cancellation was "beyond its actual control", the court affirmed in a statement. In its judgment, the Fourth Chamber of the Court of Justice held: