The EU passenger rights law that won’t help you

Are the EU rules enough for passengers? (Elliott/Flickr)
Here’s another episode in the “Our Lawyers Interpret EU 261 Differently” drama that has been playing itself out on this site since the controversial European passenger-rights law passed in 2004.

Lorry Rubensteen’s LOT Polish Airlines from Warsaw to Chicago on Nov. 6 was delayed because of mechanical problems and finally canceled, she says. (You can see the details on FlightStats if you have an account.)

She detailed her problem in an email to LOT:

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My flight was to leave at 4:30 p.m. It was then changed to 8 p.m., then to 9:30 p.m. The flight was cancelled at 9:15 p.m.

I was told I would be compensated in money for the cancellation of the flight.

(The promise to which she refers is a brochure handed out to delayed passengers, which informs them of their rights under EU 261.)

Rubensteen also described problems with the hotel room and logistics getting the passengers to and from the airport. Nothing unusual for a mechanical delay, but inconvenient, nonetheless.

“I would like to know how much compensation and when will I be paid for the cancellation of the flight and the way we were all treated that night,” she wrote to the airline.

Here’s LOT’s response:

Please accept our sincere apologies for all inconvenience you experienced due to the delay of the flight LO003 on 6th November, 2011 .

Maintaining our flight schedules is of paramount importance to us and we do not delay or cancel a flight unless it is absolutely necessary to do so.

In such cases we endeavour to offer our passengers adequate assistance and keep them informed. Our records show the passengers from the delayed flight were provided with meals and beverages. Much to our regret, it is not always possible to predict when exactly flight operations can be regained and we apologise if we failed to meet your expectations with respect to regular updates.

A technical fault of the aircraft planned to operate the flight LO006 on 27th September 2011 was unexpected and unavoidable and could have impinged on flight safety, what indicates extraordinary circumstances.

As we realise the situation might have disrupted your arrangements we would like to offer you a 50 percent discount on a economy class return ticket on any route operated by LOT Polish Airlines. Please be informed the discount does not apply to internet fares and taxes. This offer is valid for 1 (one) year from the date of this letter and can be completed only at LOT Polish Airlines office.

We hope that you are able to view this situation as an isolated incident, and your future travels will be satisfactory in every respect.

A few strange things about that reply. First, the European courts have ruled that mechanical delays don’t constitute an “extraordinary” delay, which is the only way out of the EU law that requires cash compensation. Also, the dates are a little weird. What does the 27th of September have to do with this complaint?

That answer doesn’t work for Rubensteen, either. Some of her fellow passengers had received cash for their trouble, and she wants to get the money, too.

I suggested that she write back, explaining that LOT’s interpretation of EU 261 was incorrect. She did. Here’s what it had to say:

Please be advised that pursuant to Article 5, point 3 of Regulation EC No 261/2004 establishing common rules on compensation and claims in the event of flight irregularities, the carrier is not obliged to pay compensation as stipulated in Article 7, if the cancellation of flight is the result of extraordinary circumstances which could not have been foreseen or avoided despite due action taken.

Regulation EC No 261/2004 explicitly points out that extraordinary circumstances are those which can adversely affect the flight safety and which are beyond the carrier’s control.

In the light of the above, we are not in a position to accede to your request for compensation.

That’s disappointing. LOT and its codesharing partner, United Airlines, are playing a dangerous game with this interpretation of EU 261, because it’s only a matter of time before an attorney specializing in aviation law is delayed, sues, and brings a new set of restrictions on the airlines and their flawed reading of this consumer law.

But still. If this were happening in the States, a coupon for a future flight would be exceedingly generous. Heck, I’d be doing backflips if my airline offered me anything above and beyond what it’s required by regulation to do.

It’s all a matter of perspective.

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