Airlines and their associations have no standing with the ECJ. Are you referring the UK court's request to the ECJ to reconsider their ruling in the Sturgen (sp) case?
If so the Advocate General has issued his recommendation that the court not reconsider their previous ruling. The court itself usually acts within a few months of the AG's recommendation but not always.
Even if the court maintains their original ruling this doesn't mean that all delays will be eligible for compensation. The ECJ said, in some cases, a delay could be considered a cancellation (and therefore eligible for compensation). But they declined to say what those circumstances would be. This means that national courts have no guidance and will have to make rulings based on the circumstances of each case. It is doubtful that any court would say that a two hour weather delay is the same as a cancellation. Perhaps a 24 hour delay, but who knows?
The ruling is to be given on October 23rd, if as they usually do, the court follows the opinion of the Advocate General, airlines are going to face thousands of currently 'stayed' claims of delays in excess of three hours.
The 'defence' of exceptional circumstances appears to have become more difficult to use and according to reports in the US, one attorney has issued proceedings against AA for a delay in the US on a flight to Europe on behalf of clients despite the law clearly not even applying to the flight.
We know who will get rich and who the ultimate losers will be, just wait for the cries of 'My £50 flight just went up £10, what is wrong in claiming 250 Euros for a three hour delay? It's the law'
I have a question to which I've been unable to find the answer as the legislation is so loosely drafted.
My son booked a weekend trip to Barcelona on Vueling last month. The outbound was scheduled for Friday night about 2200 and the return for Sunday afternoon. Due to a schedule change he arrived in BCN 14 hours later than scheduled.
8 days before departure they advised him that the outbound departure had changed to 1200 on Friday, which as he is at school, he was unable to make. I therefore wanted to call them and get them to transfer him to the Iberia flight (parent company) on Friday night, but his mother refused to let me deal with this as I am 'too aggressive'. She called them and they refused to book him on the Iberia and she accepted the alternative of a flight on Saturday lunchtime, meaning that his weekend was reduced to barely 24 hours.
I drafted a letter which she sent them requesting in terms of EU 261/2004 compensation of €250, which seems to be the correct amount for a delay of this nature. A 'schedule change' of 10 hours on a short haul flight seems to me to fall under the definition of cancellation.
Now they have refused compensation and I am required to sort it out, perhaps my 'aggressive' attitude from the start would have produced a better result. The standard bullshit reply is below, most of it is irrelevant.
On principle, I intend to follow this up and obtain some compensation for his disappointingly shortened weekend, and given that the rescheduling resulted in his arrival at his destination 14 hours later than scheduled, I believe he is due compensation.
Can anyone help or offer advice? Thank you!
Estimada Sra xxxxxxxx
Gracias por contactar con Vueling.
Nos ponemos en contacto con usted en respuesta a su escrito de fecha 04/09/2012 y en relación a su reserva xxxxxx. Entendemos a través de su escrito la desagradable situación en la que se vieron envueltos y ante todo debemos rogarles que acepten nuestras más sinceras disculpas.
Vueling le informa que no podemos compensarle de la forma que usted nos solicita, ya que su petición no encuentra una acogida favorable en el Reglamento Europeo nº 261/2004 (U.E.). Ponemos en su conocimiento que la incidencia que se produjo en su vuelo, a motivos operacionales aeroportuarios ajenos a las compañías aéreas. Teniendo en cuenta que por dicho motivo la compañía no tiene obligación de prestar asistencia, entendemos que Vueling ha cumplido con sus obligaciones legales.
Se ofrecieron cambios de vuelo gratuito para los vuelos posteriores, desplazamiento terrestre y alojamiento para los que debieran volar al día siguiente. Siendo del todo posible para la compañía, cumplir con el contrato de transporte que supone una reserva.
Le informamos que esta compañía está sujeta no solamente a las condiciones generales de transporte, que usted podrá encontrar en nuestra página Web (www.vueling.com), sino también a las normativas comunitarias en materia de aviación civil que se recogen en el Reglamento Europeo nº 261/2004 (U.E.), donde se especifica que el pasajero puede solicitar el reembolso del billete solamente en caso de no haber volado finalmente con la compañía. Hemos verificado en nuestro sistema que usted acepto, finalmente, el vuelo gratuito que le propuso la compañía para realizar su viaje, y la asistencia facilitada
En el caso de que el vuelo del pasajero fuera modificado, cancelado o sufriera un retraso, Vueling no responderá en ningún caso de los servicios adicionales que el pasajero hubiera contratado con terceros, aunque su reserva se hubiera realizado por el pasajero teniendo en cuenta la llegada a destino final de la aeronave. En ese caso, el pasajero deberá contactar exclusivamente con la empresa a través de la cual reservó los citados servicios adicionales, quedando Vueling exenta de toda responsabilidad.
Sentimos, sinceramente, no poder proceder con su petición favorablemente.
No dude en contactarnos en caso de tener cualquier otra consulta, sugerencia o petición.
Reciba un cordial saludo. Atentamente,
Departamento de Atención al Cliente VUELING AIRLINES S.A.
What this says in essence is : In response to your letter dated 04.09.2012 ....... We understand the unpleasant situation and ask you to accept our sincere apologies.
We are unable to compensate you as requested, as your request does not conform with EU Regulation No. 261/2004. The incident that affected this flight is due to airport operational reasons beyond our control. The company has no obligation to provide assistance and Vueling has fulfilled its legal obligations.
We offered free flight changes for later flights, land travel and accommodation for passengers who chose to fly the next day. This fulfils the company's obligations in respect of the contract of carriage implied by a reservation.
The company is subject not only to the general conditions of carriage on our website but also to the EU rules on civil aviation EU Regulation No 261/2004 (EU), which specifies that the passenger can request a ticket refund only if he has not flown. Our system shows that you accepted the free flight offered and the assistance provided.
Where a passenger's flight was modified, canceled or delayed, Vueling will not pay for additional services that the passenger has contracted with third parties, even if their reservation was made by the passenger with regard to the final destination of the aircraft. In that case, the passenger must contact exclusively with the company through which these services were booked additional and Vueling is exempt from liability.
We are sorry that we cannot consider your request favourably.
It seems to me that invoking the following clauses of the legislation he is entitled to the €250 which I originally requested.
Passengers concerned shall:
(c) have the right to compensation by the operating air carrier
in accordance with Article 7, unless:
(ii) they are informed of the cancellation between two
weeks and seven days before the scheduled time of
departure and are offered re-routing, allowing them to
depart no more than two hours before the scheduled
time of departure and to reach their final destination
less than four hours after the scheduled time of arrival;
Where reference is made to this Article, passengers shall
receive compensation amounting to:
(a) EUR 250 for all flights of 1 500 kilometres or less
Let me tell you that it is standard policy for airlines to reply negatively. I had it with Lufthansa. I held my ground, provided evidence challenging their futile attempt in pretending that the problem was outside their control, and informed them that I was ready to take the matter up through legal channels (which I was by the way). They soon gave in and paid up.
It has been my experience that all airlines, in fact all organisations, will reply negatively to a first request for compensation, attempting to obfuscate the facts and confuse the consumer. At this point 82.6% of complaints (like most statistics, that was made that up on the spot!) will disappear into thin air.
The second request will be met with a derisory offer, and the third will produce a more or less satisfactory response.
What I'm really looking for here is an expert who can tell me if, in this case, I am correct in expecting compensation. I am concerned that Mrs. TV may have destroyed the case by accepting the alternative offered, even thoguh that resulted in him getting there 14 hours late.
Whilst it does not even begin to surprise me that this piece of legislation is so poorly drafted that 'cancellation' is not defined properly, I don't see how the airline can get away with this.
A 'schedule change' on a short haul flight where the only alternatives are either 10 hours earlier than originally scheduled or 14 hours later has to entitle the passenger to some kind of redress. In order to accept the alternative, most people would have either had to take a full day off work/study, or accept a 14 hour delay.
I suspect that he may have been offered a full refund - his mother dealt with it as I'm 'too aggressive' to deal with such matters until they go tits-up then I have to sort them out.
A full refund was not a good solution as he wanted to go to BCN and the alternative, booking a flight on Shiteberia at the last minute, would have cost significantly more than the Vueling flight. At this point, you may well say 'you get what you pay for' but Vueling used to be a good airline until Iberia dragged it down almost to their level. Both are lousy, but, as the Cloggies say, if you're going to buy shit, you may as well buy the cheapest shit you can get!
Surely the airline's conditions of carriage cannot override EU legislation?
Of course not, and their T&C's say: "None of these Carriage Conditions will annul any available right to which applicable legislation entitles the Passenger."
However as Regulation 261 does not apply to change of schedule s/he has no rights under it. However that does not mean that s/he has no rights. Contract law may have been breached.
I note that Vueling's T&C's do not carry the regular exclusion that the schedules do not form part of the contract (based on the IATA Recommended Practice), so perhaps one could argue that Vueling's failure to state that explicitly the schedule does form part of the contract.
Have you considered contacting the Spanish NEB for their views?