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He took an oath — then American took his money

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A perfect Paris vacation foiled by a flagging flap — what can I do?

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Has Virgin Atlantic deflowered EU Rule 261?

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.