Paul Kivett’s plane broke down twice before it could take off from Chicago this summer. He arrived in Paris almost five hours late.
If his had been a domestic flight, then Kivett, an architectural photographer based in Kansas City, Mo., would have been entitled to nothing more than the $15 meal vouchers that American Airlines offered.
But he believed that under a little-known European consumer law adopted in 2004, called EU 261, the airline owed him more. Specifically, 600 euros (about $775) cash, the set compensation for a delayed flight.
EU 261 established consumer protections not afforded American air travelers, including compensation for delays, denied boarding and flight cancellations. Airlines have pushed back, interpreting the law as narrowly as possible. In Kivett’s case, for example, American maintained that EU 261 simply does not apply to him.
Kivett was incredulous. “Aren’t they responsible?” he asked me.
We may soon find out. A lawsuit filed this month in a federal district court in Illinois accuses United Airlines of violating EU 261 by failing to compensate passengers whose flights were delayed by more than three hours. It’s the highest-profile effort to date to compel U.S. airlines serving Europe to adopt a more consumer-friendly interpretation of the law.
“United has repeatedly failed to compensate passengers as required,” says Hank Bates. He is an attorney in Little Rock representing two United passengers whose flights didn’t depart on time this summer. He’s seeking class-action status for the case.
United faces lawsuit over alleged violation of EU 261
United wouldn’t comment on the pending litigation. But a spokeswoman for A4A, a trade group for the domestic airlines that counts United as a member, said that its carriers follow the law. “As with all consumer protection rules, our members carefully adhere to the requirements of Regulation 261,” she said.
The case in question revolves around United Airlines Flight 949. According to the complaint, was scheduled to depart from London at 12:20 p.m. on July 14. United canceled the flight at 5:42 p.m. As a result, the two passengers suing United — James Bergman and Kathleen Lynch — didn’t land in Jackson Hole, Wyo., their final destination, until 24 hours after their scheduled arrival time. (Related: Will you be affected by Brexit this year?)
Under EU 261, Bergman and Lynch should have received 600 euros each, the lawsuit says. They did not.
“The entire trip was a nightmare for us,” says Bergman, a Web site editor who lives in London. “The most frustrating thing about the experience was the feeling of being powerless. We had paid thousands of dollars for our flights, and we had no recourse to collect compensation that European law entitled us to.”
Extraordinary circumstances
The complaint highlights a common problem with Europe’s air travel consumer protections: EU 261 isn’t exactly straightforward. I’ve argued with colleagues about who’s covered under the law and who’s exempt. Inevitably, each debate comes down to the definition of two words: “extraordinary circumstances.” Under the law, an airline can simply say that a flight was delayed or canceled because of extraordinary circumstances to get itself off the hook.
According to EU 261, extraordinary circumstances could include political instability, dangerous weather conditions, security risks, unexpected flight safety problems and labor strikes affecting the carrier. But the law leaves open the possibility that other situations could also qualify. Since 2004, most airlines have maintained that mechanical problems are an extraordinary circumstance. It means that if a plane breaks down, EU 261 goes out the window.
In 2008, the European Court of Justice, Europe’s highest court, addressed that interpretation. It ruled that a mechanical failure can be deemed extraordinary only if it involves an act of sabotage or a recently discovered design defect. Yet American air carriers operating in Europe continue to invoke simple mechanical delays as reasons to evade compensation, especially when U.S.-based passengers are involved.
Attorney launches mediation business
The EU law is not without other loopholes. This prompted attorney Bates to launch a business modeled on several European companies that mediate EU 261-related disputes between customers and airlines. His Web site, Euroflightdelays.com, went live just before Bates sued United. “Passengers on flights covered by the regulation have the right to compensation,” he said.
Interestingly, when an airline confronts a possible violation of European consumer law, the usual response is to make a compensation offer in hopes of reaching a quick settlement. That’s what happened when Kivett asked American about his Paris-bound flight. A representative wrote, “This regulation does not apply when travel is from the USA and the aircraft is operated by an American airline. “Nevertheless, as a gesture of goodwill, I’ve sent you and your wife a transportation voucher for $400.”
American air carriers could face a huge bill if they’re found to be in violation of the law. Particularly if a court grants class-action status to Bates’s complaint. A simple calculation reveals why. Take the typical number of passengers on an international flight, multiply it by the number of mechanical delays on flights operating in Europe, and you have the makings of a potential blockbuster settlement. Airlines know that their creative definitions of extraordinary circumstances could create a disaster of extraordinary proportions. (Here’s what you need to know about the EC 261 and European air travel rights.)
The hushed reality of EU 261
If Bates wins in court, aviation analyst Michael Miller predicts airlines will raise airfares to cover the expense.
Maybe that’s why airlines are reluctant to even talk about EU 261. At least that’s the impression I got a few years ago when I visited the headquarters of a major air carrier. While walking past a section of the office handling claims related to EU 261, I asked if I could speak briefly with the person managing the department. I was told no. The person didn’t want to talk about the law. No, I couldn’t talk to anyone in that department. Then, I was asked to keep walking, please. Most complaints about this European law that I ask airlines to review appear to vanish without a response. The companies are saying nothing beyond their pre-written form letters.
No doubt, many airlines know that there will be a day of reckoning when it comes to EU 261. It might come sooner than they think.
