The European Union has some of the toughest passenger rights laws on the books. But is Virgin Atlantic thumbing its nose at the rules?
EU Rule 261 says delayed passengers must be compensated a minimum of €250, and a recent court decision says airlines may not use a mechanical delay loophole to get out of their obligation. Yet that is precisely what happened to Adam Giusti, who was flying from Newark to London on Dec. 26.
When we arrived at the airport to check-in, we were told that one of the planes engine’s had failed and we would not leave for London that night. The replacement part for the plane was brought in from another airport that night and the engine was repaired. Our departure was delayed until the next day. Virgin Atlantic put us up in a hotel for the night. Upon speaking with a Virgin Atlantic representative at EWR the next morning, she assured us that we would be able to recoup damages.
Under Article 6 of the rule (PDF) Giusti is entitled to €600.
Virgin Atlantic disagreed. It sent him a letter offering 5,000 frequent flier miles, instead.
I suggested he appeal to the airline, citing the EU rule and the recent court ruling, which clearly outlined Virgin Atlantic’s responsibility. Its answer?
Virgin Atlantic has been made aware of, and are looking into the latest EU ruling on Regulation 261/04. We know that this specifically constitutes an “unexpected flight safety shortcoming” for the purpose of the exemption from compensating passengers in the event of a flight disruption. In the meantime, however, our position remains unchanged.
Any attempt to operate aircraft with known technical faults would create a flight safety shortcoming. And thereby compromise the non-negotiable basics of flight safety and security, which must be upheld by all European Union airlines. Where flight safety shortcomings are unexpected, the airline is exempt from the requirement to pay compensation.
Interestingly, this appears to be a pattern. I asked Virgin Atlantic to review an almost-identical case last week from reader Damon Anyos and it came back with an almost-identical response.
Anyos’ flight from Chicago to London was canceled for mechanical reasons. Although the airline paid for his hotel and meals, it denied his request for €600 under EU Rule 261.
According to our customer service records, Mr. Anyos was compensated appropriately as per the EU Mandated Compensation 261/2004.
Under such regulation, if Virgin Atlantic has to cancel a flight due to circumstances beyond our control and within 14 days of departure as a result of the following: operational, industrial action, political instability, weather, aircraft type grounding, air traffic control or safety reasons (technical would fall under safety), then we are not required to offer financial compensation.
We are required to rebook them on the next available flight and offer ‘care’ (which would be to pay for hotel and meals if it’s an overnight delay) which in this case we did provide.
Under EU, Virgin Atlantic isn’t obligated to offer any good will gestures, such as miles, yet due to our high level of customer care, we offered 25,000 miles as a further apology.
Indeed, Virgin seems to offer a different interpretation of its responsibility under EU rules than the EU court appears to have intended it to.
I can’t blame Virgin for its narrow take on EU Rule 261. But is it correct?
I’m not a lawyer, but I can’t imagine lawmakers intended to let airlines off the hook for a mechanical delay. If they had, then they might as well have not written it. The subsequent EU court rulings support that conclusion.
Maybe this will be an issue the courts — not the customer service agents — must decide.
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Sounds like someone is going to have to take Virgin Atlantic to court, just as was done with Alitalia, before this changes. That said, I do understand VA’s position. Airplanes are incredibly complex devices, and they receive intense and expensive routine maintenance, but stuff still breaks, and it’s not as if they can just coast to the side of the freeway and call a tow truck (tow plane?) if something goes wrong.
Frankly, I’d hate to think of a cash-strapped airline taking off with a possible mechanical defect just to avoid possibly paying out €25,000 in compensation. When it comes to airplanes, it’s better to err on the side of caution. It’s a long way down from flight level 370.
Hi Elliott-
I really don’t think that the EU Court Ruling that occurred in Deceber of last year clarifed the matter at all. It did scare BA quite a bit- even though the defendant was Alitala. The issue for BA was T5 related for the most part- and that is what they went off to settle.
If anything it does call into question what an airline can be expected to find under “regular maintenance” and narrows down their ability to use “exceptional circumstances”. That said, it does not sound as if they did put extra staff and resoruces onto the issue in an good faith attempt to solve it.
I did a detailed blog on this a month or so ago- if you are interested it can be found at: http://www.twclimited.com/blog/?p=73
Carter
I don’t want to fly in an environment where airlines face large compensation costs when considering how to respond to a maintenance problem. Obviously an aircraft won’t fly with less than all it’s engines, but there are many less obvious reasons why a pilot might decline to fly an aircraft, or a maintenance supervisor might want to ground one. if the decision is not clear cut, the cost of compensation puts tremendous pressure on employees to skew the decision toward risk, rather than safety.
As “Aaron” said, it’s a long way down from FL370.
This rule is a poor idea.
(Note that I have no financial connection to any portion of the aviation economy, except as an occasional paying passenger.)
An interesting story! I had a similar experience with Lufthansa. Let’s see how it turns out.
Airlines definitely are not too enthusiastic about the passanger rights laws. I was really surprised to find out that they don’t even have a phone number to call regarding compensation and refunding.
Maybe it has something to do with the fact that e.g. Lufthansa’s profits went down 64% last year…
http://www.jussihuotari.com/2009/03/10/flight-canceled-curious-conversation-about-compensation/
@Aaron
I would hope that a rule like this would encourage airlines to really beef up their maintenance programs and have adequate spare parts within reason.
I wouldn’t call maintenance an issue beyond the airline’s control. Not even emergency maintenance.
Heh, you practically answered your question with it possibly going to the courts, Chris. This can be practically argued both ways, then it depends what one or both parties will do if both can’t agree with one another.
@Carter Stewart
Thanks for your detailed thoughts on what you wrote. I pretty much agree with them, though I’m sure others don’t for whatever reason. :)
There are European wide companies that will due the suing for you, for a small part of your compensation. They operate in most EU countries, in virtually all languages.
Sorry, but an engine is a mechanical part. In theory I guess you could state that it is for safety, but I wonder if any plane would ever take off knowing one engine didn’t work. That said, an airline could delay a flight for any reason and say “safety”. One seat belt didn’t buckle properly so the flight was delayed for safety reasons. I see it now.
I also have a feeling thatthe courts will decide this one as well.
Ed, you say that you “wouldn’t want to fly in an environment where airlines face large compensation costs when considering how to respond to a maintenance problem.”
If anything, these rules would pretty much force airlines to do BETTER maintenance and inspections on aircraft. they have three choices then, either pay each passenger a lot of money every time, take off knowing there may be a problem and face hundreds of millions in losses from lawsuits and get shut down by the govt, or spend a little more money on maintenance and make sure you aren’t paying out $600 euros to 300 people every other flight. The logical and easy choice would be the last. This would also have the result of making your planes safer than any other in the air, a better depart and arrival record, and probably higher customer satisfaction from the employees and customers.
As a Frequent Flier, I understand “ALL” airlines will do the very LEAST they can get away with, regarding passenger compensation etc. But as for Virgin Atlantic, if they state (and I quote):
“Operational, political instability, industrial action, weather, aircraft type grounding, air traffic control, safety reasons (with TECHNICAL falling under “safety”)…………..
Then the question begs to be asked…….what exactly DOES European Rule 260/04 Cover?
Clearly Virgin is of the belief they don’t have to offer compensation for ANY reason, including a Maintenance Delay; excuse me “Safety” delay.
Call it what you will Virgin, anyway you look at it, it’s YOUR traveller that’s getting screwed! (And I love VS, I fly them regularly!).
Just curious if anyone knows WHAT they WILL cover?
I have to side with the airlines on this. I’d rather they took more care in maintenance than worried about having to pay a lot of money in compensation. Having a flight delay already costs the airline a lot of money, and there’s a strong incentive for taking off on time. Payments for a delay that likely exceed the ticket cost in the first place is absurd.
If airlines have to pay this cost out too much, it will simply put up the cost of fares.
Regarding Virgin Atlantic, I recently booked a non-stop return flight from London to DC, which they canceled without notification. I suspect that they are doing this whenever the flight isn’t fully booked, but the upshot was that I was backed into a corner because I was leaving the US the next day and had to accept a return flight that stopped in NY and extended my travel time by more than 4 hours. They never explained why the flight was canceled, but a customer service rep told me that many flights in this time slot had been canceled, which leads me to believe that profit motive, not maintenance, drove them to put my interests dead last – I suspect that they engaged in a bait and switch based on this information. I am looking for statistics on European flight cancellations, can anyone help me?