Air Malta has decided to delay or postpone your departure, can you be compensated?
Regulation (EC) No. 261/2004 of February 11, 2004 established common rules for compensation and assistance to passengers in the event of denied boarding, cancellation or long delay of a flight, depending on the laws established by the Court of Justice of the European Union, “Sturgeon” case law C-402/07 and C-432/07 of November 19, 2009; and “Nelson” C-581/10 and C-629/10 of October 23, 12).
– Flat-rate compensation of € 250 from 3 hours late on a flight of less than 1,500 km;
– Compensation of 400 € from 3 hours late for a flight of more than 1,500 km within the EU or from 1,500 to 3,500 km outside the EU;
– Flat-rate compensation of € 600 from 4 hours late for a flight of more than 3,500 km.
Important clarification: according to articles 6 and 7 of the aforementioned regulation, compensation is only provided for flights departing from an EU member country (regardless of the airline used and the place of destination), or (b) only for flights to an EU country, provided that you travel on a European company.
How do you know if the delay you have suffered gives rise to compensation or not?
A first question was asked in practice: to calculate the extent of the delay of a flight, what must be the event causing the arrival? The Court of Justice of the European Union has clarified that “it is only when at least one of the doors of the plane opens that the extent of the delay can be determined for the purpose of possible compensation “(Case C-452/13 of 4 September 2014).
In the event of flights with connections or with stops outside the EU?
Medium and long-haul flights from member countries of the European Union to third countries are often the subject of connections or stopovers in non-EU member states. What about the delay noted on the last flight, outside the EU, from a non-EU country (example: Paris-Tokyo with stopover in Dubai, operated by a European company like Air Malta, the delay noted on the flight Dubai-Tokyo)?
The Court of Cassation has just given us an answer to this question in its judgment of 30/11/2016 (n ° 15-21.590): “having suffered a delay of more than three hours on arrival in Kuala-Lumpur, their destination final, Mr and Mrs Y were entitled to compensation, regardless of whether the flight in question, which constituted the correspondence of a flight departing from an airport located in the territory of a Member State subject to the provisions of the Treaty, within the meaning of article 3, § 1, a), of the same regulation and whose delay was at the origin of the missed connection in Dubaï, was from an airport located in a third country, bound for from another third country and operated by a non-Community operating air carrier “.
The Court of Cassation thus ensured increased protection for passengers victims of significant delays, even if the delay would occur during a connection in a non-EU State and whose flight to the final destination would be provided by a non-European company; premium is thus conferred on the departure airport as a trigger for compensation.
What if Air Malta cites exceptional circumstances?
The judgment of the Court of Cassation of November 30, 2016 leaves a gray area: the notion of extraordinary circumstances exempting airlines from any compensation related to a delay is not specified. The High Court simply defined its attributes. The extraordinary circumstance is one that, by its nature or origin, is not inherent in the normal activity of the air carrier.
In its judgment of 30/11/2016 (op.cit), the Court of Cassation informs us that a technical incident is inherent in the normal activity of an air carrier. Compensation is therefore due to the delay contracted on this account. What about a natural risk? In its decision of 31 January 2013 following the eruption of the Icelandic volcano Eyjafjöll (case C-12/11), the Court of Justice of the EU ruled that this was an exceptional circumstance. It could therefore be inferred that natural risks are not inherent to the normal exercise of the air carrier’s activity and that, consequently, the delays contracted for this are not compensable.
Save for extraordinary circumstances which, by their nature or their origin, are not inherent in the normal activity of the air carrier, the latter is required to compensate the passengers in accordance with European rules in the event of delay observed at the opening of the door of the aircraft on arrival, even if the delay would occur during a connection in a non-EU State and whose flight to the final destination would be provided by a non-European company; premium is thus conferred on the departure airport as a trigger for compensation.