8 Rights in Cases of Flight Delay:
Comprehensive Overview of Flight Compensation, Ticket Reimbursement etc.

The best-known and most sought-after passenger right introduced by the Flight Compensation Regulation is indisputably the right to a lump-sum compensatory payment of up to € 600. This claim is lucrative for passengers especially as passengers do not need to have suffered any quantifiable damage. On the one hand, this makes it easier to establish a line of argumentation, on the other hand, it considerably reduces the requirements for claims for flight compensation.

Originally, the Flight Compensation Regulation was supposed to provide for a lump-sum compensation only in the events of flight cancellations and for denied boarding. With the 2009 Sturgeon decision, however, the European Court of Justice extended the obligation to compensate to flight delays of more than three hours. Since then, airlines have had to compensate for inconveniences even in case of significant delays.

To determine whether a respective flight disruption is sufficient to qualify for a flight compensation, the ECJ’s ruling takes into consideration the delay at the final destination. This has further implications for incidents on flight connections with more than one leg: Passengerscan also be entitled to compensation in cases where they were able to reach a connecting airport with a shorter delay, but missed the connecting flight and thus arrived at their final destination with a total delay to more than three hours. Similarly, passengers are entitled to compensation, too, in cases where their arrival that was delayed by more than three hours results from a flight being cancelled or delayed on a later leg of their journey. This was recently clarified by the European Court of Justice in its ruling of 11 July 2019 (docket no. C-502/18).

The following illustration provides a general overview of when exactly passengers are entitled to compensatory payments of up to € 600 in case of flight delays.

In addition, our compensation calculator provides an initial estimate of when there is a chance to receive a compensatory payment for a specific flight delay. Our system determines free of charge and without obligation whether and, if so, to what extent a claim for compensation is permissible.

Please find a more detailed description of the requirements that passengers must fulfil in order to be entitled to receive flight compensation in our general overview of claims to flight compensation. The respective article discusses in further detail, among other things, when flight cancellations are justified in cases where aircraft are defective or due to epidemics such as Covid-19 and when claims for compensatory payments may be legitimate.

This additional article also explains how compensatory claims related to flight delays may be enforced against various airlines such as Eurowings and Ryanair. Depending on whether there is willingness to settle those outside the courts, it is worthwhile to either pursue a claim independently or to commission a service provider.

Either way, it must be kept in mind that in the following, only requirements for flight compensation under the European Flight Compensation Regulation will be discussed. As far as we know, there are hardly any comparable rights in case of flight delays outside the European legislation. If at all, the only level of protection that comes close to the European one is achieved in parts by the Canadian passenger rights that we discussed in the article linked above. Compared to this, the U.S. legal system only establishes rights to meals and refreshments and compensation for luggage that was lost (find out more here). While the Indian legal system grants passengers some kind of monetary compensation in case they suffer a delay, its amount is far less than the one set forth in the European Union standard and requires an even more drastic flight delay (find out more here).

A level of protection similar to the one provided in the European Union is otherwise only available to these passengers neither arriving nor departing in the EU whose airline’s booking conditions or any travel insurance provides for this.

In order to compensate passengers for their inconveniences suffered, it is, however, not sufficient for the operating air carrier to simply pay compensation. In addition, there are several benefits in kind to which passengers are entitled, too, in case of a flight delay – regardless of the reason for such delay (Björn Steinrötter (ed), Beck-OGK (online edn), March 2020, art 9 of the Flight Compensation Regulation, recital 5 with further evidence).

Even cases of force majeure do not release the airline from its obligation to provide at least the necessary care and, where applicable, accommodation during flight delays.

Should journeys be delayed by more than two hours compared to the scheduled time of arrival, the airline is obliged to provide meals and refreshments free of charge.

Should re-routing to the final destination only succeed on the day after the arrival was scheduled, the airline shall furthermore bear the costs incurred by passengers’ necessary hotel stays. The same applies to the cost of transfers between the hotel and the airport. Such is the provision of art 9(1) of the Flight Compensation Regulation.

It should be kept in mind that the airline is, at first, obliged to provide said benefits in kind itself. As a matter of principle, it is generally not required to have to pay for services provided by third parties that travelers make use of without previously having reached an agreement on using them with the airline.

What this means for passengers is that they must first assert their claims against the airline. Only after an airline has refused to provide a service, passengers may buy their own meals and refreshments, book a hotel room, and charge the airline for costs incurred (Björn Steinrötter (ed), Beck-OGK (online edn), March 2020, art 9 of the Flight Compensation Regulation, recitals 3, 31).

For this to practically succeed, it is essential to keep any receipts. Otherwise, it will be close to impossible to prove that necessary purchases took place. Without receipts, however, it is very likely that an airline will refuse its obligation to pay. Furthermore, proof is also necessary in court and when using a passenger rights portal.

When a flight is cancelled or boarding is denied, the airline still remains obliged to carry the passengers booked. Even if this does not happen on time, the air carrier must, in any case, provide for the transfer. This is set forth in art 8(1) of the Flight Compensation Regulation.

Should, however, a passenger decide to book an alternative all by himself or not to travel at all, he may also request a reimbursement of the airfare.

This requires that the flight that was originally booked is delayed by at least five hours or that it has been cancelled and that no alternative means of transportation is provided in a timely manner.

It is not necessary though that the delay is caused by controllable reasons. In other words: Even if the delay is caused by force majeure, the airline must reimburse the airfare in case the passenger chooses to give up the flight (ECJ, judgment dated 31 January 2013, docket no. C-12/11 McDonagh/Ryanair, cited as NJW 2013, p 921; Rüsselsheim local court, judgment dated 11 January 2011, docket no. 3 C 1698/10, cited as NJW-RR 2011, p 560; Degott (ed), Beck-OK, 11^th edn, art 8 of the Flight Compensation Regulation, recital 12).

An exception to this rule is being discussed as the Covid-19 pandemic continues to expand. In fact, travel restrictions and travel advisories issued by governments and foreign offices, many passengers having decided to cancel their bookings and the decline in new bookings required flight plans that were effective until then to be reduced significantly. Thus, Europe has experienced massive flight cancellations without replacements in an unprecedented way since the beginning of March 2020. As the right to receive a reimbursement is inevitable, air carriers suffer enormous financial burdens. While their revenue streams are plummeting due to the lack of new bookings, the claims for compensation keep amassing. In this situation, the German federal government is putting pressure on the European Commission to ease the air carriers’ burden. This would have been achieved by retroactively changing the legal framework for ticket reimbursements for flights from 8 March 2020 onward  by interpretative notes or amendments to applicable laws enabling airlines to issue vouchers instead of cash refunds (so-called voucher solution). Had the European Commission decided to follow this proposal, it would have led to the following consequences: Air carriers would have been, except in the rare cases of hardship, no longer obliged to make payments for ticket refunds. Instead, they would have been entitled to simply issue a voucher bearing the value of the airfare for rebooking purposes as an alternative. This voucher is said not to expire when not used. According to the German federal government’s proposal, however, one may only demand money to be paid out in 2022 at the earliest.

Even though the EU Commission did not follow through entirely on the proposal, it does serve as a framework for voucher schemes into which passengers may enter into voluntarily by accepting respective offers by their airlines: Under such voucher schemes, consenting passengers are only able to claim a voucher in case their flights get cancelled due to Covid-19. Secondly, they most likely can only use their voucher on their own depending on their airline’s terms and conditions. On the other hand, air carriers usually resorted to add bonuses to a voucher’s value compared to the original fare to incentivize passengers to opt for this solution.

Opposed to that, passenger rights companies such as Flightright help claim cash refunds but subtract their fees from the money to be paid out. It is safe to assume that such offers are not compatible with the voucher solution as they would have to charge a fee for claiming the voucher. This fee could inherently not be offset a payment, instead, the passenger would have to pay out of his own pocket for a voucher bearing the full fare value. Under these circumstances, it is unlikely that passenger claim companies will remain able to offer services at attractive terms for ticket reimbursements in cases related to Covid-19.

Another free online form for checking whether you are entitled to a ticket reimbursement is available at the website Geld-für-Flug. At the same time, they offer to buy users’ claims for reimbursement against a commission once they positively assess a claim. In addition, they pay directly. Find our evaluation of their conditions and customer experience in our review of Geld-für-Flug.

Requirements

If a flight is part of a package travel contract, the passenger is further protected by the claims that arise from travel law in ss 651a ff of the German Civil Code. Above all, the right to reduce the package price in the event of flaws or to be issued a partial reimbursement afterwards sees practical importance.

Any such claim is based on s 651m(1) of the German Civil Code. In order to allow for a reduction of the price, it is thus required that a delayed flight constitutes a “travel flaw”. Established case law states that this is always the case when the delay exceeds four hours within Europe or eight hours for trans-Atlantic flights (for flights within Europe see Frankfurt/Main state court, judgment dated 27 January 2009, docket no. 2-24 S 177/08, cited as BeckRS 2009, p 22915, RRa 2009, p. 72; for flights across the Atlantic see Dusseldorf higher regional court, judgment dated 27 February 1992, docket no. 18 U 173/91, cited as NJW-RR 1992, p 1330).

From this point onward, the travel price’s daily rate can be reduced by 5% for each additional hour of delay. For example, should a ten-day package tour cost €2,500, a daily rate of €250 would apply. From the sixth hour of delay onward, €12.50 could be claimed back for every hour the flight remains delayed. A refund of €125 would apply if the arrival was delayed by more than half a day that would have to be borne by the tour operator.

Should the flight, for example, only take place a day after the scheduled departure, the full daily rate must be refunded. At the same time, it is not unlikely that corresponding claims for refunds would already have been compensated by the lump-sum compensation pursuant to art 7 of the Flight Compensation Regulation. This is for the following reason:

Art 12(1) of the Flight Compensation Regulation clarifies that the compensatory payment of up to €600 under art 7 of the Flight Compensation Regulation may be set off against a further claim for damages. While s 651m(1) of the German Civil Code constitutes a right of reduction, the German Federal Court of Justice (BGH) nevertheless assumes that art 12(1) of the Flight Compensation Regulation also permits offsetting against such claims (see BGH, judgment dated 30 September 2014, docket no. X ZR 126/13, recitals 12 ff, cited as NJW 2015, p 553).

This can be explained above all by the fact that the English version of the Flight Compensation Regulation generally states that the “compensation granted under this Regulation may be deducted from such [further] compensation” (Björn Steinrötter (ed), Beck-OGK (online edn), March 2019, art 12 of the Flight Compensation Regulation, recitals 52 ff). In addition, the terms and conditions of most tour operators contain provisions that see rights in case of flight delays lapse as long as the air carrier already provides comparable services owed under the Flight Compensation Regulation.

Thus, passengers are only entitled to reimbursements regarding the package travel price as long as they do not claim the lump-sum flight compensation from the airline pursuant to art 7(1) of the Flight Compensation Regulation. This was recently confirmed by the European Court of Justice in its judgment dated 10 July 2019 (docket no. C-163/18).

Right to reduce or lump-sum flight compensation?

Thus, the right to reduce the price of a package deal is only relevant in two scenarios. On the one hand, it can be worthwhile in exceptional cases where the reduction amounts to a sum that is higher than the passenger compensation provided for under the Flight Compensation Regulation. This is the case when the

• Package tour is rather higher-priced (costs of more than €200 per person and day),
• Destination is reached by means of a short-distance flight (meaning that only an amount of €250 could be claimed), and
• Flight delay is exceptionally serious (thus, more than a day).

On the other hand, the right to a reduction in price may also prove itself useful where flight irregularities occur on flights outside Europe and no flight compensation under the Flight Compensation Regulation is available.

Such a situation could also occur when leaving from Germany if the flight from the European Union to a third-party country would take place as intended but the further connection towards the final destination would be affected by a flight delay. This would, for example, be the case when a person booked on a package deal would reach Dubai from Berlin on time but would suffer a severe delay when proceeding to the Seychelles. The Flight Compensation Regulation would not apply to such a flight delay, on the other hand, there would be the right to a reduction in price against the tour operator.

Claim for reimbursement in case of loss of baggage

As is specified by art 12 of the Flight Compensation Regulation, the lump-sum compensation does in no way replace further claims for damages. In this case, there is furthermore no threat of the compensatory lump sum being set off everywhere as it is may only settle claims that are intended to arise in order to compensate for the mere inconvenience that is the loss of time. Relevant legal literature confirms this (see Björn Steinrötter (ed), Beck-OGK (online edn), March 2019, art 12 of the Flight Compensation Regulation, recital 36).

Therefore, a passenger may separately demand compensation or reimbursement of additional purchased that were made due to damaged luggage. Based on the carriage contract between a passenger and the airline, s 280(1)(1) of the German Civil Code serves as the basis for such claims. Lost or damaged luggage constitutes a violation of the contractual duties by the airline. Thus, the incident already fulfils an essential requirement for a claim for damages.

Even though s 280(1)(2) additionally requires that the airline was responsible for this breach of contractual duties, such responsibility is already statutorily presumed unless the airline does not manage to prove it was not responsible.

What comes in handy for travelers in the event of luggage loss is furthermore that case law almost exclusively assumes that luggage got lost due to the airline’s gross negligence, thus making the airline liable for it (see, for example, Cologne higher regional court, judgment dated 15 May 2005, docket no. 22 U 145/04). This is in line with the provisions of the Montreal Convention which its art 17(2,3) decouples the claim for damages due to damaged or lost luggage from the requirement of negligence.

At the same time, the Montreal Convention specifies that any piece of luggage that has not reached the final destination 21 days after the scheduled arrival date shall be deemed lost (art 17(3) MC). In such cases, the passenger may claim damages to the amount of the value of the suitcase and its content.

Claim for reimbursement in case of baggage delay

Even belated delivery of luggage is considered a breach of the contractual duties. Should this cause the need to buy clothing, meals or technical equipment, this also constitutes damages that are eligible for compensation under art 19(1) MC.

This claim for compensation sees significant relevance in situations in which delays occur on outbound journeys as passengers are unable to get hold of replacement articles – unlike at home. Especially when luggage is delayed as passengers are on their way to enjoy their vacation, passengers affected are generally required to buy new clothing at their destination to bridge the time until luggage arrives.

The passenger may demand such costs to be reimbursed. At the same time, art 22(2) MC implements a ceiling of 1,131 so-called Special Drawing Rights (SDR) per person for lost or delayed luggage. Special Drawing Rights are an internationally recognized comparative value of monetary units. 1,131 SZR are equal to approx. €1,300. Passengers hold compensatory claims up to this amount for lost, damaged or delayed luggage.

Necessary proof

In practice, of course, enforcing this claim requires proof of damage. First of all, it is imperative to keep the luggage label that allows for the identification of checked-in luggage.

In addition, affected passengers must report the delay or loss of luggage within 21 days to their air carrier. This might happen at the airport already; in such cases, passengers are being issued a so-called PIR form at the Lost & Found counter that lets them give further details on their luggage issues. For further enforcement of claims for luggage compensation, a copy of the damage report should be kept, too.

Similarly, it must be substantiated in case of legal enforcement what a piece of luggage contained and what the actual costs for purchasing replacement items were. Invoices for new purchases should, thus, be kept as well as photos of the content of the suitcase at the beginning of the trip. In cases where such proof cannot be provided, general data of the journey might suffice as it indicates a certain amount of luggage. Those able to prove that they intended to depart on holiday for several weeks make it plausible that way that they had some clothing in their suitcase.

Maximum amount

Further claims for damages due to delay may also be considered against the air carrier. According to some specialists in this field, the lump-sum flight compensation of up to €600 must be set off against this under art 12(1) of the Flight Compensation Regulation.

Should a passenger miss important appointments due to the flight delay, any such setoff may be negligible, though. This is the case because arts 19, 22(1) MC state that any passenger who correspondingly suffers a high quantifiable loss may is entitled to a payment of up to €5,600. Depending on the number of passengers, this sum is multiplied.

Reimbursable damages

German law generally does not permit for the refund of immaterial damages suffered under s 253(1) of the German Civil Code. Thus, any corresponding claim for damages might only arise from a passenger losing profit.

The most frequent case in which these rules are applied concerns inbound flights that are delayed to the following day, thereby preventing the passenger from going to work. Any corresponding loss of earnings may be reimbursed. Especially those with higher incomes may find it worthwhile to submit claims on short or medium-haul flights.

The same applies to passengers who host events that they are being paid for, such as seminars, readings or concerts. If the appointment has to be cancelled and they do therefore not receive any remuneration, affected passengers hold claims for damages. Both s 19 MC and German general law of obligations require that such flight delays must have had causes that were manageable.

Extraordinary causes such as force majeure, the consequences of which are unable to be redressed by reasonable means, therefore unburden the air carrier (see, for example, Königs Wusterhausen local court, judgment dated 2 February 2017, docket no. 4 C 1350/16, cited as NJW-RR 2017, p 826). On the other hand, flight delays triggered by technical or organizational issues typically substantiate claims for damages.

This means that in cases where travelers suffer a precisely quantifiable damage due to a flight irregularity caused by the air carrier, they may demand the reimbursement of such damage instead of a lump-sum reimbursement.

In addition, there is a chance to enforce both claims competing claims. This could happen in cases where airlines abstain from setting off claims. While most airlines typically make use of their right to do so, some intentionally or accidentally do not make use of their right to set off claims. The prevailing opinion in both legal literature and case law state that any such setoff is required to be declared, though (see Jürgen Maruhn (ed), Beck-OK Flight Compensation Regulation, 10^th edn, 2019, art 12 recitals 30 ff).

In order to illustrate how individual claims may add up, we will look at your rights in case of flight delays as well as how to enforce them using a sample case below.

Facts

The C family from Lindau on Lake Constance books a fourteen-day package trip to the Canary Islands with a total price set at €4,200. They intend to arrive in Tenerife by air travel from Friedrichshafen via Frankfurt. The leg from Frankfurt to Tenerife cost €400.

A technical issue on the aircraft causes the first flight to Frankfurt to be delayed by one and a half hours. Due to this delay, the passengers miss their connecting flight.

The air carrier only offers to rebook them to a flight leaving on the next day. As the family thinks that such delay takes too long, they simply book other flights operated by a different air carrier. With a delay of eight hours, they arrive at their destination.

While the family made it to their vacation island, their luggage remained in Frankfurt when they boarded the flight to Tenerife. Two days pass before their luggage makes it to Tenerife. Meanwhile, they paid €500 for clothing and other items that were missing.

Rights in case of flight delays in the sample case

As the flight’s place of departure and the final destination are both located within the EU, the Flight Compensation Regulation applies. In the case at hand, it grants claims for meals and refreshments, flight compensation and reimbursement of the airfare (3.2.1, 3.2.2, 3.2.4). In addition, these rights are supplemented by passenger rights with regard to a prorated refund of their package travel price.

Meals and refreshments

Firstly, the C family is entitled to meals and refreshments free of charge for the additional duration of their journey. As this responsibility lies rests with the air carrier at first, one of its representatives should be asked for performances in kind or vouchers; should no one give an answer, the air carrier should be contacted via phone.

Should the air carrier refuse the request, passengers are entitled to buy meals and refreshments on their own at the airport. Afterwards, they can demand a refund from the air carrier.

Flight compensation

Furthermore, a lump-sum compensation in accordance with art 7 of the Flight Compensation Regulation may apply as there was a delay that exceeded three hours by far. This delay was also caused by operational reasons and not by force majeure that could exculpate the air carrier. A flight compensation of €400 per passenger applies, thus, a total of €1,600.

At first, you may ask yourself why the amount is not €600 per passenger as the distance between Germany and the Canary Islands exceeds 3,500km, thereby constituting a long-haul flight. However, this does not take into account the fact that the Canary Islands belong to the Kingdom of Spain and are therefore EU territory. Intra-European long-haul flights only grant a lump-sum compensatory payment of €400.

Claim for partial refund of the package tour price

As the flight delay exceeded five hours, a prorated claim for refund with regard to the package tour price applies. The daily rate of the package tour amounted to €300 of which the tour operator must pay back at least 15%.

At the same time, most terms and conditions of tour operators contain clauses that state that the amount to be paid back is to be set off against the Flight Compensation Regulation’s lump-sum compensation.

Claim for reimbursement of the airfare

Still, the C family has a claim for the reimbursement of the airfare paid for the connecting flight from Frankfurt due to the delay that exceeded five hours (€400). This means that they are at least able to compensate the costs that were caused by their rebooking.

What might be considered, too, is that the costs for further transportation on a different aircraft may be less than the original airfare paid. Passengers might have themselves waitlisted on fully booked flights so they gain the ability to board the flight in case some passengers who were expected to arrive do not arrive. Should no earlier re-routing be available this way, they are still able to board the alternative flight offered by the initial air carrier.

This flight, however, would have taken place on the following day only; thus, the C family would have been able to demand that their hotel costs be borne by the air carrier.

Claim for luggage compensation

There is another claim that the C family is eligible for. They may also demand reimbursements for the costs caused by them having had to buy replacements for the contents of their delayed luggage. In this case, the sum amounts to €500.

Thus, in total, the C family is entitled to meals and refreshments as well as a €2,500 compensation. This indicates that it may prove monetarily important to passengers to use their rights in case of flight delays fully.

The German Federal Court of Justice recently held that an air carrier must refund the fees and taxes saved by not having transported the passenger (judgment dated 20 March 2018, docket no. X ZR 25/17) . Thus, regardless of why you did not board your flight: You may at least demand a prorated refund of the airfare paid.

Not too long ago, the company RightNow GmbH with its registered seat in Düsseldorf caused uproar with its Geld-fuer-Flug (Money-for-flight) startup.  The legal tech website specialises in enforcing claims for refunds due to flight cancellations. A similar service for substantially lower fees has been recently launched by Refund Pilot, as well.

As it is rather unlikely that enforcing such claims on your own proves successful, you may ask yourself whether authorising Geld-fuer-Flug or Refund Pilot to handle your claim might be worthwhile. We tested both companies‘ reimbursement products. Find our report on experiences with Geld-fuer-Flug and our review of Refund Pilot under the links provided.