The American way of following European consumer protection laws

If I’ve seen Lee Wendkos’s case once, I’ve seen it a hundred times. Delayed on his way to Europe, he tried to invoke EU 261, the legendary and often misinterpreted European consumer protection law. And he failed.

Yes, this feature is called Case Dismissed, but there’s a lot to be learned from our consumer missteps. With the busy summer travel season just around the corner, here’s one lesson you need to take with you: Airlines hate EU 261. Get every promise in writing or you’ll end up with nothing.

Wendkos, flying from Paris to Philadelphia a few months ago on US Airways, was delayed 7 ½ hours. That’s a long wait. Delays are covered under EU consumer protection law and the European courts have upheld the principle that a simple mechanical problem is not a sufficient excuse for a delay.

“Aside from not notifying passengers of their requirements under EU 261/2004, the airline offered no meals or compensation for the delay, as is also required,” says Wendkos.

So he wrote to US Airways to ask for compensation. As he read EU 261, each passenger was owed 600 euros compensation. He also asked for reimbursement of the $99 fee he paid to use the US Airways/American Airlines lounge.

In response, US Airways acknowledged, in writing, that the “flight did not operated (sic) as scheduled due to an unexpected mechanical situation.” It also refunded the lounge fee.

It added,

We are not required to provide EU compensation in the event that the carrier performed all necessary maintenance checks and took all steps feasibly viable to prevent a mechanical cancellation or delay.

While no compensation is due under the regulation, as a further token of our apology we have authorized two transferrable Electronic Travel with US Vouchers with a value of $600 each which must be redeemed within a year.

Oh, really?

“This not only is not in accordance with the regulation, and is significantly less than their liability under the EU regulation, but forces us to book travel that at this time is unplanned,” says Wendkos.

Undeterred, he sent a written complaint to the Transportation Department. The DOT promptly forwarded his complaint to American, which responded again.

We regret our service did not meet your expectations and assure you the events described are no more our idea of acceptable service than yours. It is disappointing and truly not reflective of our commitment to providing stellar customer care.

We understand that any irregularity has an impact on our passengers’ travel plans and, while safety is always our primary consideration, we work hard to minimize such situations. We are sorry this was not your experience. Rest assured we have documented your concerns and they have been forwarded to the appropriate management teams for review with a focus on improving our service and to take necessary steps to help prevent a recurrence.

Our records indicate you have each been given a $600 transferable voucher and reimbursement of $99.10 for the expense of using the lounge. Regrettably, I am unable to alter our previous resolution. Rest assured our offer of compensation was in no way an attempt to diminish your dissatisfaction with your experience. While this compensation is not what you anticipated, we hope you will accept it in the spirit of goodwill that it was offered.

Mr. Wendkos, we value your business and are working hard to earn your continued patronage. We hope you will give us the opportunity to do so.

In other words, no.

Wendkos argued that American wasn’t following the rules. He cited several court cases in which mechanical delays didn’t qualify as an “extraordinary” circumstance, and he asked me to pursue this with the airline.

I’ve seen the court cases, too, and I agree with Wendkos’ interpretation. I think airlines are exploiting a loophole in the law. At the very least, I wanted to get American on the record, giving its reasons for the denial.

Here’s how it responded:

Two things:
1) Contrary to popular belief, there are some mechanical delays that do not trigger EU compensation. It’s not black-or-white. [American’s] view of this particular delay was that this case did not automatically trigger compensation.

2) Vouchers are acceptable as compensation if the passenger agrees. I realize that the customer in this case isn’t happy about that outcome, but I wonder if he already signed something accepting the vouchers? In any case, the airline’s position was that that flight didn’t trigger the EU compensation requirement, so the vouchers are all it’s offering. In any case, it seems like this customer got all the compensation he requested, other than that payment came in the form of vouchers rather than cash.

Wendkos supplied American with a list of court cases that suggested it was wrong. He also said he never accepted the vouchers, so there’s no signature.

To which American replied:

The customer service folks handle EU delays frequently, and I really have to defer to their judgment about what qualifies for compensation and what doesn’t. It looks like they gave this case a close look and determined that the $1,300 compensation was sufficient. I don’t have anything else to add.

Well, I do have something to add. You can’t just send a customer $1,200 in funny money and call it a day. American failed to follow the law on this one, no question about it. Wendkos should consider taking this to the European regulators and holding the airline’s feet to the fire.

For the rest of us flying to Europe this summer, there’s a valuable takeaway. When your flight is delayed, make sure you get any kind of promise of compensation in writing. Take notes on the reasons for the delay. Don’t give the airline any excuse to weasel out of paying you what you’re owed.

Did American follow European law when it handled Lee Wendkos' case?

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