Air Passenger Rights

 

By adopting REGULATION (EC) No. 261/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91, the European legislator as early as 2004 created the basis for a number of claims to which air passengers are entitled in the event of an air journey being disrupted. During the first few years, what was meant well in theory barely had any effect in practice: instead of bending to justified claims from passengers, most airlines were dismissive in their initial response to any demands that customers put forward in this respect. On top of which, it was difficult for any lawyer lacking the necessary expertise to assert air passenger rights, for one thing because the airlines refused to share their “superior knowledge”, for another because the competent law courts had little experience with enforcement based on an EU Regulation.

This applies in particular for the right to monetary compensation. As a particular means of compensating for the inconvenience suffered, the Regulation and ECJ rulings relating to it make provision for a compensatory payment in cases of denied boarding, flight cancellation and seriously delayed arrival. If claims to this effect are to be asserted, various data and numerous items of information are needed, in particular regarding the identity of the operating air carrier, the flight distance and the length of the delay, as well as other circumstances such as the prevailing weather conditions or the number of cancellations at the airport of departure or arrival. This data includes details that the passenger himself frequently does not know, or can only find out with difficulty. More often than not, a passenger does not even know the identity of the operating air carrier against which the claim for compensation has to be filed, because the entity where the flight was booked is not necessarily the same as the one subsequently actually performing the flight. The operator cannot always be deduced even from the flight number, since many flights are provided using so-called “code share” procedure, where one and the same flight is allocated different flight numbers by various air carriers, although the flight is only actually performed by one operator.

Not infrequently therefore, claims were brought against the wrong air carrier, and/or wrong amounts were claimed. In addition to which, the majority of air carriers generally paid nothing in response to a demand for compensation unless ordered to do so by a court. Even acting against their better judgment, numerous air carriers argued “extraordinary circumstances” systematically, so as to ward off claims. Measured against the (all things considered) pretty meagre sums of EUR 250, EUR 400 and EUR 600, asserting compensation claims was hardly worth while – either for the air passenger concerned, or for the lawyer retained for the purpose.

As a provider of legal services in Germany, we have actually played a decisive role in initiating and pushing effective enforcement of even such small compensation amounts, for the benefit of clients and lawyers alike. By methodically using databases in which information relevant for compensation claims has been recorded, we are able to verify the enforceability of thousands of claims simultaneously and can take steps both in and out of court to assert those cases which have good prospects of a positive outcome.

In the course of litigation focussing on thousands of compensation claims, we have also made a vital contribution towards courts awarding damages generally, even if the air carrier being sued pleads “extraordinary circumstances”. For according to meanwhile standard jurisdiction, purportedly “extraordinary” circumstances are in most cases now considered inherent in the normal exercise of an air carrier’s activity. Appeal courts in particular took some convincing of this; for this very reason, we have also been involved in cases brought before the European Court of Justice and the German Federal Court of Justice.

By taking a methodical approach in our use of databases and our own IT, and thanks to our specialised legal know-how, we manage to get compensation claims awarded effectively.

Not least as a result of this enforcement of legislation, efforts are meanwhile underway both in the aviation industry and in politics to limit the rights granted under the Regulation and awarded in lawcourts by revising the Regulation. In view of our expertise, for which we are also respected by our opposite numbers, we are actively involved at both national and European level in the political decision-making process aimed at re-regulating air passenger rights.

Our methodical approach has already proved successful in other areas of the law as well, and apart from asserting individual consumer rights we also use our extensive legal know-how and experience for enforcing business claims in multiple-case procedure.

 

Robert Weist