Complete Guide on Flight Compensation under arts 5, 7 of Regulation (EC) No 261/2004: Requirements, Amount, Enforcement

The Flight Compensation Regulation generally grants compensatory payments under art 3(1)(a) only when flight irregularities occurred on flights departing from within the EU. Flights that only arrive in the EU may only be considered suitable for compensation when the operating air carrier is located in an EU member state (art 3(1)(b) of the Flight Compensation Regulation). The associated countries of the European Economic Area in which EU legal acts are partially applicable (Iceland, Liechtenstein and Norway) have the same status as EU states. [7] Furthermore, the Flight Compensation Regulation applies to Switzerland: This is based on decisions nos 1/2006 and 1/2014 dated 9 July 2014 issued by the Community – Switzerland Air Transport Committee. The Community – Switzerland Air Transport Committee confirmed the applicability of the Flight Compensation Regulation once more in decision 1/2017 dated 29 November 2017. [8]

This means that the Flight Compensation Regulation’s passenger rights also apply to flights from Switzerland or Norway to Canada. The same applies to any inbound flight as long as it is operated by a Norwegian air carrier – or any other airline seated in the EU or a country that is a member of the European Economic Area. European passenger rights do, however, not apply to a flight operated by an Egyptian airline from Hurghada to Frankfurt. Still, the Flight Compensation Regulation applies to the reverse route, thus, to a flight departing from Frankfurt even if the air carrier’s seat is outside Europe.

All flights without either departure or destination in the EU, the EEA or in Switzerland are already beyond the scope of the Flight Compensation Regulation so no flight compensation may apply to any such case. The same is valid with regard to flights operated by air carriers from outside the EU that only land in the EU but do not start there.

Unfortunately, there are hardly any regulations outside the EU that offer passengers a level of protection that could be compared to the one provided by the Flight Compensation Regulation. [9] Since early 2020, the Canadian Air Passenger Rights that are discussed in detail under the link above constitute a rare exception applying to flights departing from or arriving in Canada.

Special questions regarding the applicability of the Flight Compensation Regulation typically arise from multi-leg flights where only one leg is subject to the Flight Compensation Regulation. The ECJ ruled that flight compensation may apply if a delayed feeder flight departing from the EU results in a connecting flight to a third country departing outside Europe being missed.[10]

If a passenger misses his connecting flight to Australia in Dubai because his previous flight from Munich is delayed, he may be entitled to compensation under articles 5, 7 of the Flight Compensation Regulation. No compensation would apply in the other direction, however, if the feeding flight from Australia would have been delayed.

Whether or not the Flight Compensation Regulation applies to multi-leg flights was, until 2019, decided solely based on whether the flight segment that was affected by the flight irregularity fell within the scope of application.[11] In its ruling dated 11 July 2019, the European Court of Justice went even further:

The judges also declared the Flight Compensation Regulation to be applicable even if a flight departs from within the EU but the delay occurred on a later leg outside Europe (docket no C-502/18). According to their ruling, air passengers are, in principle, entitled to a compensatory claim if the arrival at the final destination that was delayed by more than three hours resulted from a flight on a later leg of the journey being cancelled or delayed.

This benefits, for example, passengers on scheduled flights from Frankfurt to New York when the subsequent flight to Detroit has to be cancelled due to a technical defect. This is true even where the flight that was affected by the irregularity was operated by a non-European air carrier but the booking of the complete flight was made with an air carrier based in the EU. According to the ECJ, this carrier is the respondent to the claim in such cases.

1st variation: Flight cancellation or rebooking

Article 5(1) of the Flight Compensation Regulation only grants passengers explicit claims to compensation if a flight is cancelled. Beyond the case of denied boarding which is dealt with in Article 4 of the Flight Compensation Regulation, cancellations were initially the only situations in which compensation could be claimed.

Additionally, not every cancellation is severe enough under Article 5 of the Flight Compensation Regulation to entitle a passenger to flight compensation. A cancellation must be made at short notice in order to be considered eligible for compensation. Should a passenger have been informed of such a cancellation two weeks prior to departure, the claim to compensation is lost (Article 5(1)(c)(1) of the Flight Compensation Regulation). This is because the regulatory body assumes that the passenger can still reasonably be expected to adjust his travel plans and to fly on a different flight.[12]

Case law treats the rebooking of individual passengers in a very similar way. The significance of such measures also depends on whether they were notified at short notice and to what extent the flight times of the alternative journey deviate from the original travel dates.[13]

In all other respects, the entitlement to compensation shall primarily be determined by the extent to which the alternative routing offered by the air carrier differs from the original flight connection. If the operating air carrier is at least able to organise adequate substitute transportation in case of a short-term cancellation, it is also released from the obligation to pay compensation. Thus, article 5(1)(c) of the Flight Compensation Regulation only grants the right to compensation when an air passenger arrives at the final destination more than two hours later or departs more than one hour earlier than planned.

An airline may rebook passengers more generously when the cancellation is being communicated at least one week before departure. But even in such a case, an air carrier may avoid its obligation to pay compensation under Article 5(1)(c)(2) of the Flight Compensation Regulation only in case the rebooked flight departs at most two hours earlier than planned and arrives at most four hours later than planned.

The claim for compensation in case of cancellation thus requires, in a summary, that passengers were notified less than two weeks prior to departure and that any alternative flight’s dates are significantly differing from the booked flight’s dates.[14]

Thus, one can draw some parallels to the regulations surrounding purchases. These regulations enable the seller to deliver the good that was sold a second time in case of deficiencies surrounding the product. Only when fixing or redelivering the good has failed, the purchaser is allowed to reduce the price or to claim damages.[15]

2nd variation: Flight delay

Since the ECJ’s Sturgeon ruling dated 19 November 2009, case law also considers serious delays as grounds for compensation (C-402/07, C-432/07). By way of further development of the law, the ECJ held in said ruling that significant delays cause passengers similar inconvenience as cancellations without an adequate substitute flight. From a certain length of delay onward, Article 5(1)(c) of the Flight Compensation Regulation shall be applied analogically. According to the ECJ, delays of three hours or more when arriving at the final destination of the journey are significant enough to justify a claim for compensation.[16]

What is deemed relevant is the total delay at the final destination of the journey. The initial delay on one leg of a multi-legged flight may amount to less than three hours as long as the passenger misses his connecting flight due to this delay. Any claim for compensation in such a case requires, however, that the delay at the final destination must have amounted to at least three hours.[17]

Unlike what some older rulings of courts of first instance may suggest, an ECJ ruling dated 11 July 2019 declared it irrelevant whether the feeder flight and the connecting flight that was missed have been operated by the same or by different air carriers (C-502/18). What matters with regard to the claim for compensation and the significance of the delay at the final destination is, according to case law that has been solidified by now, only whether both legs have been booked together. In this case, the passenger may hold the operating air carrier of the delayed feeder flight as long as the delay at the final destination exceeds three hours and the other requirements have been fulfilled.

The calculation of the delay is based on the difference between the scheduled time of arrival and the actual time at the moment of opening the cabin door at the final destination.[18]

For a delay to be deemed equal with a cancellation, another requirement must be taken note of: A flight compensation may only be claimed, should the respective passenger in fact have been on the flight. If the passenger independently organises substitute transportation or decides not to travel, case law denies travel-related inconveniences and thus also a claim for their compensation.[19]

If, exceptionally, the air carrier refers to an exclusion under Article 5(3) of the Flight Compensation Regulation, there is nonetheless no possibility to claim flight compensation. The regulation summarises the corresponding situations that relieve liability under the generic term of “extraordinary circumstances” that cannot be avoided by using reasonable measures. As shown in recitals 14 and 15 of the regulation, such circumstances arise wherever the disruption of a flight is due to factors beyond the respective air carrier’s influence.

It should be note that Article 5(3) of the Flight Compensation Regulation generally provides for a reversal of the burden of proof in this respect. Thus, in order to avert the obligation to pay compensation in case of significant flight irregularities, the air carrier must prove that such an irregularity was caused by exceptional circumstances that could not have been avoided with reasonable effort.[20] In case the cause of the delay cannot be clarified, the passenger is entitled to compensation.

Extraordinary circumstances

What exactly do the exclusionary extraordinary circumstances set forth in Article 5(3) of the Flight Compensation Regulation mean? Said recitals 14 and 15 of the regulation can be deemed first clues.

According to these, an air carrier is already relieved from its obligation to pay compensation in case of unsafe weather conditions, ground crews on strike or closed airports due to reasons such as bomb threats. Such cases are also referred to as “force majeure”.[21]

In addition to this, there are some incidents that might look like an air carrier could control them, yet they are beyond their sphere of organisation. This regards all disruptions of airport work processes that are not exclusively tailored to the handling of one particular flight.[22]

This means, among others, air traffic control, security checkpoints and snow ploughs on the runways. These serve all air carriers and passengers equally. Thus, an individual air carrier urging to be prioritised may not be privileged based on such urging even if it had tried hard. This makes flight irregularities that arise from such causes typically uncontrollable by air carriers which leads to a relief in the obligation to pay compensation.[23]

A different situation arises when airport personnel act exclusively as vicarious agents of one particular air carrier. This includes, among others, luggage handlers, catering staff and staff operating the gangways for individual aircraft. The significance of such causes for delays is not to be omitted: Especially at busy airports, ground staff regularly damage particular aircraft by accident when refuelling or restocking them.[24]

This indicates: Air carriers typically are held liable for a list of common causes for disruptions such as technical defects, badly organised flight plans and absent crew members (typically due to sickness). To that extent, very often there is no hindrance to a claim for compensation.

Reasonable countermeasures

In contrast, Article 5(3) of the Flight Compensation Regulation only rules out an air carrier’s duty of compensation once there are not only uncontrollable extraordinary circumstances at hand, but when the air carrier is unable to avert the delays that follow from them. This second requirement also must be fulfilled in order for a claim to flight compensation to be precluded.

Nonetheless, uncontrollable cases of force majeure typically thwart countermeasures in practice. Should bad weather compromise the safety of air travel, this typically affects an individual aircraft, too. The same applies to limitations to flight connections triggered by strikes, air traffic control rules, absent tower staff or a closed airport.

In any case, case law considers only a few measures that may reduce a delay reasonable. A sub charter request may typically only be filed with sufficient lead time. In case of sudden flight cancellations, an air carrier is, on the other hand, only obliged to perform a significantly reduced programme of duties.[25]

Providing a spare aircraft is typically only reasonable in case it is already held ready at the departure airport.[26] And even in such situations, an air carrier may typically exonerate itself by the fact that such extraordinary circumstances typically also do not allow for alternative transportation to be done in time.

Another auxiliary measure that one could typically think of is rebooking individual passengers to other aircraft. At the same time, the German Federal Court of Justice (BGH) held in a judgment dated 12 June 2014 that any such individual measures shall not be considered under Article 5(3) of the Flight Compensation Regulation.[27] Thus, reasonable countermeasures may only preclude flight compensation where the flight irregularity can be avoided not just for individual passengers but for everyone, for example, by providing an alternative aircraft.

Rule of thumb

Basically, with regard to the exclusionary reason of extraordinary circumstances, the following applies: Should staffing issues or technical issues at the aircraft cause a delay, the air carrier typically is liable for such delays. Should, however, environmental circumstances or disruptions in the operation of an airport cause flight irregularities, this typically relieves individual air carriers.[28] This is because such incidents are beyond the air carrier’s sphere of organisation and, thus, regularly lead to the preclusion of flight compensation.

From an empirical point of view, the number of flights and air carriers affected at one airport at one specific point in time indicates whether extraordinary circumstances exist. Area-wide disruptions of air traffic indicate a case of force majeure which regularly preclude claims for flight compensation. Isolated cancellations or significant delays indicate on the other hand that the respective disruption is not caused by external, uncontrollable factors.[29] Of course, there are also exceptions to this rule of thumb such as occasional bird strikes.[30]

Individual examples of ordinary circumstances

Over the years, case law has clearly established which causes of flight irregularities shall be deemed extraordinary and which shall not. Therefore, should it be difficult to classify a case under the principle outlined above, the following list makes it easier to assess whether flight compensation is precluded.

A claim for compensation is affirmed by the courts for the following causes of delayed or cancelled flights:

Technical defect without direct external influence, such as

• Engine damage[31].
• Landing gear damage[32].
• Defect in the kerosene supply[33].
• Fuel leakage[34].
• Failure of the weather radar[35].
• Defective elevator control[36].
• Leaking cockpit window[37].
• Defective emergency slide[38].
• Tyre damage due to heavy wear[39].

Damage to the aircraft caused by agents of the airline[40].

• During loading and unloading of luggage[41].
• Caused by a gangway vehicle[42].
• In the course of catering deliveries[43].
• Caused by a aircraft towing vehicle[44].
• Damage on the taxiway due to a collision with another aircraft[45].

Staff-related issues

• Illness or death of a crew member (prior to departure)[46].

Organisational issues

• Reorganisation of the flight plan (e.g. aircraft being used for a different flight)[47].
• Delayed check-in and boarding[48].
• Delays caused by unloading luggage of passengers who did not board the aircraft[49].
• Rebooking caused by the tour operator[50].
• Lack of fuel[51].
• Delayed passenger boarding due to a delay of pushback vehicles on the taxiway[52].

Weather-related issues

• Lack of de-icing agents[53].

What is not included in the list mentioned above is the ban on night flights as a possible cause of a delay exceeding three hours. This is because such a ban may only extend the delay and is, thus, not deemed an ordinary or extraordinary circumstance. Any departure or landing that is subject to a ban on night flights results from prior delays. Only their cause shall be deemed relevant according to relevant case law and legal literature with regard to the question whether an extraordinary circumstance applies, thus precluding flight compensation.[54].

Individual examples of extraordinary circumstances

Courts typically rule that no flight compensation shall apply where extraordinary circumstances have occurred.

Courts typically deny claims for flight compensation in the following cases:

Technical issues with the aircraft

• Damages caused by third party foreign objects lying around on the taxiway[55].
• Damages caused by passengers (e.g. by triggering the emergency slide)[56].
• Sabotage[57].
• Damages caused by inclement weather (e.g. lightning strikes)[61].
• Damages caused by animals such as

• • Bird strikes[58].
  • Insects or bees in the pitot tube[59].
  • Rodents on board of the aircraft[60].

Staff-related issues

Strike[62], this means

• Work stoppation by the aircraft’s crew[63].
• Labour dispute involving airport staff[64].
• Work stoppation by air traffic controllers[65].

Delayed departure due to acts of authorities (e.g. ATC measures)

Illness or death of a passenger[67].

Disruption of flight handling caused by fellow passengers

• Due to fear of flying[68].
• Due to aggressive behaviour[69].

Missing a connecting flight at one’s own fault despite sufficient time to reach the connecting flight[70].

Organisational issues

• Air traffic control issues such as
  • Delayed permission to depart[71].
  • Defective air traffic control radars[72].
  • Delayed permission to land[73].
  • Defective air traffic control computers[74].
• Disruption of the airport’s computer systems such as the ones used for checking in and handling luggage[75].
• Airport closures[76].
• Closing of a runway[77].

Weather-related issues Safety-threatening inclement weather (e.g. Snowstorms, strong winds, thunderstorms, hailstorms)[78]

• At the airports of departure or landing.
• Occurring on the aircraft’s route prior to departure.
• Airspace closures that air traffic is subject to[79].
• Insufficient snow ploughing at the airport[80].

Political unrest

• Civil war or a coup d’etat at the destination of a journey[81].

Still, extraordinary circumstances do not preclude flight compensation when they have already occurred prior to one round trip of the aircraft or on the previous day. Here, courts correctly refute the air carriers’ point of view saying that the flight irregularity would be the consequence of force majeure.[82]

This would, however, be the requirement for the preclusion of flight compensation under Article 5(3) of the Flight Compensation Regulation. Consequentially, flight compensation was confirmed in such situations by, among others, the Erding local court (judgment dated 23 July 2012, docket no 3 C 719/12), the Königs Wusterhausen local court (judgment dated 17 February 2016, docket no 4 C 1942/15), the Korneuburg regional court (judgment dated 22 August 2015, docket no 22 R 34/15b) and the Hanover regional court (judgment dated 30 November 2015, docket no 1 S 33/13).

When the aforementioned requirements are fulfilled, passengers are generally entitled to a claim for flight compensation. This does, however, not yet solve the question whether such a claim is worth anything. This depends on the solvency of the air carrier that was tasked with performing the flight in question.

Should the air carrier lack solvency and does it therefore have to go into insolvency, the passenger still keeps his claim against the air carrier. Correspondingly, passengers are able to have their claims against the air carrier listed in the insolvency table (Section 174(1)(1) of the German Insolvency Act).

Their claims will, however, only be met to the extent possible under consideration of the assets in the insolvency should there be a regular insolvency proceeding (Section 187(2) of the German Insolvency Act). After all, it is typically the case that the assets of insolvent corporations are insufficient to cover all liabilities. Add to that the fact that in the course of an insolvency proceeding, an air carrier’s assets are primarily used to settle claims that belong to creditors that may be satisfied separately and to those that are entitled to release property from the insolvency under Sections 47 ff of the German Insolvency Act. These creditors are typically banks to which the insolvent corporation had granted collateral – e.g. by way of transferring ownership of aircraft.

In principle, it may very well be assumed that an operating air carrier is solvent and will remain so at least in the medium term. Yet, after several insolvencies affected the aviation industry over the last years, the question of the recoverability of a claim to flight compensation nonetheless deserves attention:

For example, no recoverability applies to claims that arose due to flight irregularities until 2017 on flights operated by Air Berlin or NIKI. The same applies to flights operated by Small Planet Airlines, an air carrier that filed for insolvency in 2018. Just as unfit for any payment of compensation are claims against air carriers that opened bankruptcy proceedings in the meantime such as Thomas Cook Airlines, Condor, Virgin Atlantic, LATAM, Avianca, Smartwings, LEVEL Europe, Thai Airways, South African Airways, Germania, Monarch and Alitalia.[83]

If the aforementioned requirements are met, the Flight Compensation Regulation most likely entitles passengers to flight compensation; as long as the air carrier is solvent, these claims are also recoverable.

Only in some special constellations, the claim is precluded. To deliver a complete overview, these will be supplemented in short.

The enforcement of compensatory claims regarding flights that have happened years ago is not possible due to the statute of limitations under Section 214(1) of the German Civil Code. Claims arising from Article 7(1) of the Flight Compensation Regulation are subject to the three-year standard statute of limitations according to Section 195 of the German Civil Code as was clarified by the Federal Court of Justice in its judgment dated 10 December 2009 (docket no Xa ZR 61/09). Thus, asserting claims for flights that took place in 2015 or earlier is no longer promising in 2019.

In addition, recent case law denies claims for compensation for babies and infants for whom no separate seat was booked. This is because Article 3(3)(1) of the Flight Compensation Regulation states: “This Regulation shall not apply to passengers travelling free of charge or at a reduced fare”. For the purpose of interpretation of the law, the Federal Court of Justice held in its judgment dated 17 March 2015: “The definition set forth (in Article 3(3)(1)) also covers infants who (…) travel on the lap of their parents without a seat claim” (docket no X ZR 35/14).

For air carrier employees in particular, it must be noted that they are precluded from compensatory claims under Article 3(2) of the Flight Compensation Regulation, should they have booked the flight at a reduced fare not available to the public. Thus, while discounts and special fares that are publicly available do not hinder the right to flight compensation, such compensation shall definitely not apply to bookings made with special internal conditions.

In addition, the Flight Compensation Regulation makes it clear that only flights operated by air carriers with motorised aircraft shall be within the scope of the regulation (Article 3(4) of the Flight Compensation Regulation). This excludes flights by blimps, airships, helicopters and balloons, although these will typically be an exception in practice, too. Similarly, no compensation shall be possible where the operating company is not an air carrier within the meaning of Article 2(a) of the Flight Compensation Regulation together with a valid operating licence.

Conversely, though, these restrictions mean that claims for compensation shall apply to most types of air travel – regardless of whether the flight is a scheduled or a charter one and whether it was booked individually or in the course of a package deal.

What must be taken into account, however, is that flight compensation in the course of package deals precludes an additional claim against the tour operator arising from the flight delay according to very recent case law by the Federal Court of Justice (judgment dated 6 August 2019, docket nos X ZR 128/18 and X ZR 165/18). Thus, while package travellers are also entitled to a lump-sum compensation, they may not claim double compensation.

Once it has been established that the requirements for a passenger to hold a claim for flight compensation have been fulfilled, the calculation of the amount is relatively easy. This is because Article 7 of the Flight Compensation Regulation precisely breaks down the amount. The amount of the claim is mainly influenced by the distance covered by the respective flight, i.e. by the linear distance between the airports of departure and destination.

This generally results in

• a compensation of €250 for short-haul flights of up to 1,500 km (Article 7(1)(1)(a) of the Flight Compensation Regulation).
• a compensation of € 400 for medium-haul flights of up to 3,500 km (Article 7(1)(1)(b) of the Flight Compensation Regulation).
• a compensation of € 600 for long-haul flights of 3,500 km or more (Article 7(1)(1)(c) of the Flight Compensation Regulation).

Yet, however, the Flight Compensation Regulation sets forth some exceptions to this rule, too:

Firstly, the regulation treats intra-European long-haul flights just like medium-haul flights (Article 7(1)(1)(b) of the Flight Compensation Regulation). Therefore, connections from continental Europe to the Canary Islands may at most result in a claim to a compensatory payment of €400.[85]

Secondly, the Flight Compensation Regulation halves claims for flight compensation in case of long-haul flights that arrived only three and not at least four hours late (Article 7(2) of the Flight Compensation Regulation).[86] Should a flight from Frankfurt to Dubai reach its destination with a delay of three and a half hours, passengers affected by this delay may only be entitled to a compensation amounting to €300 instead of €600.

Rumour has it that being right does not automatically mean that one gets what is right. At least for passenger rights, this is very true. For only very few air carriers pay the compensatory amounts owed that were described above upon receiving the first request. According to our findings, some air carriers like Ryanair or Iberia almost always let it come own to the fact that claims for flight compensation must be asserted in court.

Aside from individually enforcing the claim, passengers affected are also able to either hire a barrister or use one of the various passenger rights companies that are being described and discussed in further detail under the link mentioned above. What characterises the service provided by these platforms in comparison to enforcing claims using a solicitor or barrister is that they do not charge any remuneration independent from them successfully asserting the claim, instead, they only keep a commission when compensation is paid to their clients. Unlike solicitors and barristers, they thus spare their clients the risk of costs. Some providers such as Refund Pilot even pay out their clients’ flight compensation with deductions immediately upon request. In addition, the customer-friendly websites of these passenger platforms make it easier to use their services and largely limit the effort of those affected to handling their case via an online form.

The success of passenger platforms may be explained in part by the fact that it proves worthwhile for most passengers to save themselves the trouble of enforcing their claim in return for a commission. This can be verified with the following exemplary calculation.

Exemplary calculation: How much passenger compensation does one receive in case one enforces the claim for flight compensation oneself?

Let us assume that a passenger suffers a four-hour delay on a medium-haul flight that fulfils all requirements for a compensatory payment. How much passenger compensation may a passenger claim under the Flight Compensation Regulation?

Answer: €400.

The Refund Pilot passenger platform, for example, would pay him between €250 and €274. The traveller’s only effort to be taken would be filling in the platform’s online form which takes five minutes.

Should the passenger want to keep the difference between the amount paid and the nominal value of his claim that would otherwise be paid as a commission, he has to enforce the claim himself. This, of course, takes more than just five minutes. Still, one might assume that is does not take time that is equivalent to passing on a claim for €126 to €150.

For the purpose of approximating this consideration more closely, life time spent to enforce the claim must be multiplied with what this time is worth to a passenger. To balance the effort with a monetary equivalent, it proves useful to orientate oneself on what salary the passenger affected could have earned in the corresponding working time. Let us assume, for example, that the passenger could alternatively have earned a net amount of €15 per hour.

How much time would he need to enforce the claim and what monetary value would be equivalent to this? Of course, this depends on the individual case and especially on whether the respective air carrier is open to settling claims extrajudicially. Thus, in the following we will look at both a favourable and a more resource-consuming procedure:

How much passenger compensation remains for those enforcing claims themselves in the best case?

1st step: Research

The passenger reviews his case manually and checks whether he has a claim at all. Duration: 30 minutes.

2nd step: Writing a letter of formal notice

Next, he writes a letter of formal notice to the air carrier. By doing appropriate research on search engines such as Google, he may even find a template that roughly suits him, requiring only some amendments. In case of claims directed against foreign air carriers, necessary additional effort may arise from having to translate the document because the competent department does not employ German-speaking staff. Duration: At least 30 minutes.

3rd step: Sending

Now there’s another question that arises: Where to send the letter of formal notice to? This question is often not so easy to answer. Often there is neither an email address nor a contact form (that leads to a response to what has been written) provided on the air carrier’s website. In such cases, the only way to go is through a tedious FAQ system on the air carrier’s website. Alternatively, passengers can of course write a letter to the air carrier’s headquarters. Yet, this does not guarantee an answer either and requires not only additional time – but also shipping costs.

It gets even more complicated when so-called code sharing took place. The air carrier with which the booking has been made is not necessarily the one obliged. Still, not even the flight crew’s uniform may necessarily provide further information: This is because the case of so-called wet lease agreements, the commissioning air carrier remains responsible.[87] The situation is similar when connections consist of several individual flights operated by different air carriers. According to the ECJ, claims must be directed to the company with which one booked – yet, this is only valid when this company operates at least one leg itself.[88] It may require in-depth research to find out who is deemed the operating air carrier and thus the defendant.

Duration up until a compensation request is sent: at least 30 minutes.

 4th step: Reminder

More often than not, air carriers simply do not answer at all or take a very long time unless a reminder is sent. The reason given for this is often that the request for passenger compensation is said not to have been sent to the competent body from the very beginning or that documents are still required for further examination. In that respect, at least one reminder is usually necessary. Duration: 30 minutes.

5th step: Repeated request

Once the air carrier finally responds, two reactions are typical. The air carrier either disputes its obligation to pay using a standard statement. This regularly happens when letters of formal notice are written less carefully. Those who will not have invested at lest one hour in writing a spotless letter of formal notice regarding flight compensation will need exactly this time to respond to the air carrier’s refusal. Duration: at least another thirty minutes.

Up to this point, the passenger typically has spent more than 2.5 hours to enforce his claim independently. In our example, this time corresponds to a value of approximately €40.

6th step: How much passenger compensation does one receive in the end?

Only once this amount of work has been put into the claim, the air carrier’s second reaction becomes likely. In fact, they offer compensation. Just not necessarily in the full amount. Instead, various airline assume that passengers accept settlement payments of approximately 75 percent of the nominal value of their claims to flight compensation. In our case, that would be €300 on a medium-haul flight. This is definitely more than what is paid by any of the compensation providers. Yet, one has to keep in mind that the passenger had to invest an effort equivalent to approximately €40 and even more, if an hourly rate higher than €15 is assumed.

This means that what is gained additionally in terms of flight compensation is very likely to be put into perspective by the value of the time that had to be spent. What is not yet priced in at all is that passenger platforms save both nerves and time, especially so-called direct compensators like EUflight or Refund Pilot.

How much passenger compensation remains for those enforcing claims themselves in the worst case?

Above all, however, one needs to make clear that the procedure mentioned above constitutes a favourable scenario. It might happen just as well that an air carrier does not even come up with a settlement offer and that it waits for passengers to seek remedy in court. Then, all extrajudicial efforts would be in vain. Those who still choose not to receive immediate compensation are left with the option to hire a barrister.

Passengers opting for this way instead of a passenger platform are furthermore forced to pay court fees of €105 and the barrister’s fee at the beginning of the proceedings.

After all, the air carrier has to cover the passenger’s legal expenditures, should the passenger finally prevail. In this case, a passenger would receive his compensation in full. In the example, this would amount to €400. Thus, at least in the event of a case fought in court with full litigation risk, there is a chance of receiving the flight compensation provided for statutorily.

But in order to affirm this, one must exclude the affected person’s personal expenditures and efforts. After all, the individual efforts in case of litigation do not end when he prompted the airline to settle the case extrajudicially. These efforts continue when a barrister is hired. This is because a suitable barrister must at first be sought and then mandated. In addition, one has to explain the case to him so he can file a writ of summons. Further inquiries may happen. In addition, a certain effort of coordination and communication is required in the course of the court proceedings.

For the vast majority of people affected, the time required for this is out of proportion to a commission of up to €150 which is the amount by which the nominal value of the claim for flight compensation may exceed the direct payment offered by passenger platforms such as Refund Pilot.

What commission do the various passenger platforms charge?

It is still unclear which provider charges the lowest commission and grants passengers the largest share of the nominal value of their passenger compensation. This question, however, has been answered in the following article that compares the current conditions of leading European passenger platforms in 2020. Those who (understandably) want to save themselves the trouble of asserting their claims themselves can find out there which platform currently offers the best conditions for direct compensation.

This article was originally written in German on 14 May 2019 by Raoul Sandner, attorney-at-law. It was then updated and translated into English on October 18, 2020. Raoul Sandner heads the Hamburg-based law firm Sandner Rechtsanwälte and is a lawyer specialised in commercial law. He supports the Qamqam comparison platform as a guest author by writing articles just like the one here, covering various legal issues.

[1] See Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 1, Rn. 11 w.f.r.

[2] Cf. Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 7, Rn. 2ff. w.f.r.

[3] See Maruhn, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 7, Rn. 4ff. w.f.r.

[4] See Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 3, Rn. 42ff.

[5] See ECJ, judgement of 19.11.2009, C-402/07 and C-432/07.

[6] See Schmid, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 5, Rn. 21ff. w.f.r.

[7] Cf. the implications of the decision by the joint committee of the EEA No 171/2004 of 3.12.2004 to amend appendix XIII (Traffic) of the EEC treaty, ABl. 2005 L 133, 21; cf. also Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 3, Rn. 109.

[8] Regarding the applicability of EU passengers rights in Switzerland, see also Hausmann, Europäische Fluggastrechte im Fall der Nichtbeförderung und bei Annullierung und großer Verspätung von Flügen, 2012, 101; cf. also Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 3, Rn. 110ff. w.f.r.

[9] Cf. the overview by Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 7, Rn. 2ff. w.f.r.

[10] ECJ, judgement of 31.05.2018, C-537/17.

[11] See Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 7, Rn. 90ff.

[12] Cf. Schmid, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 5, Rn. 14ff.

[13] See the overview covering rebooking constellations by Degott, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 4, Rn. 7ff. w.f.r.

[14] Cf. Schmid, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 5, Rn. 14.

[15] Cf. Höpfner, in: BeckOGK-BGB, as of 05.2020, § 437, Rn. 68ff.

[16] See the instructive commentary on the Sturgeon ruling by Maruhn, in: Staudinger/Keiler (Hrsg.), 1st edition. 2016, Art. 6 FluggastrechteVO, Rn. 8ff. w.f.r.

[17] See ECJ, judgement of 20.2.2013, C-11/11; cf. also Maruhn, in: Staudinger/Keiler (Hrsg.), 1. Aufl. 2016, Art. 6 FluggastrechteVO, Rn. 11ff.

[18] See ECJ, judgement of 4.9.2014, C-452/13.

[19] See ECJ, judgement of 19.11.2009, C-402/07, C-432/07, Rn 61.

[20] See an overview on the guiding criteria by Schmid, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 5, Rn. 176ff. w.f.r.

[21] Cf. ECJ, judgement of 31.01.2013 – C-12/11.

[22] Cf. ECJ, judgement of 22.12.2008 – C-549/07.

[23] See BGH, judgement of 13.11.2013, X ZR 115/12; LG Stuttgart, judgement of 6.12.2018, 5 S 128/18.

[24] Cf. ECJ, judgement of 14.11.2014, C-394/14; OLG Frankfurt a. M., judgement of 15.11.2011, 16 U 39/11.

[25] Cf. Steinrötter, in: BeckOGK-FluggastrechteVO, as of 05.2020, Art. 5, Rn. 98f.

[26] Cf. BGH, decision of 20.02.2018, X ZR 23/17.

[27] See BGH, judgement of 12.6.2014, X ZR 121/13.

[28] Cf. compilation of judgements by Steinrötter, in: BeckOGK-FluggastrechteVO, as of May 2020, Art. 5, Rn. 40.2 w.f.r.

[29] Cf. f.i. BGH, judgement of 18.2.2010, Xa ZR 95/06.

[30] See ECJ, judgement of 04.05.2017, C-315/15.

[31] LG Düsseldorf, judgement of 7.5.2009, 22 S 215/08.

[32] LG Stuttgart, judgement of 20.4.2011, 13 S 227/10.

[33] HG Wien, judgement of 13.3.2010, 60 R 114/06d.

[34] AG Hannover, judgement of 22.1.2014, 526 C 7704/12.

[35] AG Rüsselsheim, judgement of 20.4.2012, 3 C 2273/11.

[36] AG Rüsselsheim, judgement of 25.3.2011, 3 C 289/11.

[37] BezG Schwechat, judgement of 8.1.2015, 1 C 199/14x.

[38] AG Rüsselsheim, judgement of 20.7.2010, 3 C 1316/09-32.

[39] LG Hamburg, judgement of 12.6.2017, 309 S 105/16; LG Stuttgart, judgement of 7.12.2017, 5 S 103/17.

[40] AG Düsseldorf, judgement of 24.6.2016, 11c C 25/16.

[41] LG Darmstadt, judgement of 26.3.2010, 7 S 201/09.

[42] ECJ, judgement of 14.11.2014, C-394/14.

[43] AG Köln, judgement of 12.5.2014, 142 C 600/13.

[44] AG Rüsselsheim, judgement of 27.7.2012, 3 C 468/12.

[45] AG Nürtingen, judgement of 31.10.2017, 10 C 1551/15.

[46] LG Hannover, judgement of 11.1.2018, 8 O 299/17; LG Darmstadt, judgement of 23.5.2012, 7 S 250/11.

[47] AG Frankfurt a. M., judgement of 4.3.2015, 29 C 3128/14.

[48] LG Stuttgart, judgement of 21.12.2017, 5 S 142/17; AG Hannover, judgement of 6.12.2012, 522 C 7701/12.

[49] AG Frankfurt a. M., judgement of 9.3.2016, 29 C 1685/15-21; AG Nürnberg, judgement of 28.2.2017, 12 C 492/16.

[50] Tribunais de Comarca Lisboa (AG Lissabon, 15. Kammer), judgement of 15.1.2018, 14138/17.1T8LSB.

[51] BGH, judgement of 21.8.2012, X ZR 146/11.

[52] AG Hannover, judgement of 3.5.2016, 446 C 7085/15.

[53] OLG Brandenburg, judgement of 19.11.2013, 2 U 3/13; LG Köln, judgement of 9.4.2013, 11 S 241/12.

[54] See Schmid, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 5, Rn. 116; BGH, judgement of 7.5.2013, X ZR 127/11.

[55] LG Darmstadt, judgement of 23.7.2014, 7 S 126/13; LG Stuttgart, judgement of 7.12.2017, 5 S 103/17; AG Hamburg, judgement of 18.1.2018, 35a C 325/16.

[56] AG Rüsselsheim, judgement of 18.9.2013, 22a C 214/12.

[57] ECJ, judgement of 22.12.2008, C-549/07.

[58] ECJ, judgement of 04.05.2017, C-315/15; BGH, judgement of 24.09.2013, X ZR 160/12.

[59] AG Rüsselsheim, judgement of 24.7.2013, 3 C 2159/12-36.

[60] AG Düsseldorf, judgement of 8.10.2014, 47 C 17099/13.

[61] AG Rüsselsheim, judgement of 18.1.2017, 3 C 751/16-31.

[62] See Consideration 14 of the Regulation (EC) No 261/2004.

[63] BGH, judgement of 21.8.2012, X ZR 138/11.

[64] AG Hamburg, judgement of 9.5.2014, 36a C 462/13; AG Hannover, judgement of 26.11.2014, 506 C 3954/14.

[65] AG Königs Wusterhausen, judgement of 15.12.2017, 4 C 486/17.

[66] AG Rüsselsheim, judgement of 15.6.2015, 3 C 958/15-42.

[67] LG Frankfurt a. M., judgement of 21.3.2014, 2-24 S 160/13

[68] LG Landshut, judgement of 11.4.2017, 14 S 111/17; judgement of 25.4.2017. 12 S 209/17.

[69] AG Rüsselsheim, judgement of 8.2.2017, 3 C 742/16-36.

[70] AG Hannover, judgement of 14.3.2017, 523 C 12833/16.

[71] AG Erding, judgement of 15.4.2016, 7 C 1934/15.

[72] AG Erding, judgement of 18.4.2011, 2 C 1053/11.

[73] HG Wien, judgement of 6.10.2017, 1 60 R 62/17y.

[74] LG Korneuburg, judgement of 7.5.2015, 21 R 97/15k.

[75] BGH, judgement of 15.1.2019, X ZR 15/18.

[76] AG Frankfurt a. M., judgement of 31.8.2006, 30 C 1370/06.

[77] AG Düsseldorf, judgement of 24.6.2016, 11c C 25/16.

[78] See f.i. LG Frankfurt a. M., judgement of 14.3.2014, 2-24 S 110/13.

[79] AG Rüsselsheim, judgement of 17.2.2015, 3 C 4758/14-34.

[80] OGH, judgement of 16.11.2012, 6 Ob 131/12a.

[81] AG Rüsselsheim, judgement of 9.10.2014, 3 C 2404/14-38.

[82] See Schmid, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 5, Rn. 138a m.w.N.

[83] See Staudinger/Schröder, in: NJW 2019, 893, 896.

[84] For the specific method to calculate the distance see Keiler, in: Staudinger/Keiler (Hrsg.), 1. Aufl. 2016, Art. 7 FluggastrechteVO, Rn. 30 m.w.N.

[85] See Keiler, in: Staudinger/Keiler (Hrsg.), 1. Aufl. 2016, Art. 7 FluggastrechteVO, Rn. 14.

[86] See also Maruhn, in: BeckOK-FluggastrechteVO, 10th edition 2019, Art. 7, Rn. 17, 19.

[87] Cf. ECJ, judgement of 4.7.2018, C-532/17.

[88] See ECJ, judgement of 11.07.2019, C-502/18.