The holiday season comes with numerous challenges for individuals who either purchase tourist service packages or choose to customize their vacations according to their own preferences. We are referring in particular to air transport, preferred by most tourists, operated by airlines such as Wizz Air, Ryanair, Tarom, Animawings, and others.
Recently, we have observed an increasing number of cancellations or delays of flights operated especially by the above-mentioned airlines, justified to a greater or lesser extent.
But what do justified reasons actually mean? By justified reasons we understand “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken,” in accordance with Article 5(3) of Regulation (EC) No. 261/2004.
Conversely, any reason that does not fall within or cannot be interpreted in line with the above-mentioned circumstances is considered unjustified.
Under such conditions, passengers affected either by delays or by unjustified cancellations of purchased flights may bring an action before the courts in order to obtain compensation and other damages resulting from such delays or cancellations.
As regards situations in which passengers independently purchase airline tickets directly from airlines, their right to seek compensation from the latter is evident. However, what is the procedure to be followed when passengers purchase service packages through travel agencies?
In this latter case, the clauses contained in the contract concluded with the travel agency are of particular importance. Most often, travel agencies include liability exemption clauses in their contracts in such situations, being unwilling to assume responsibility for external circumstances caused by the air carrier.
Thus, passengers have access to judicial proceedings and may bring an action directly against the air carrier by filing a statement of claim requesting the compensation due under Regulation (EC) No. 261/2004, as well as full compensation for the damage suffered as a result of the flight delay or cancellation.
The Regulation does not prohibit passengers from bringing an action before the courts directly, provided that the legal conditions for obtaining compensation are met. However, passengers may not request from the air carrier the reimbursement of amounts representing the cost of airline tickets or accommodation purchased through a travel agency, insofar as such amounts were paid to the agency. In this case, passengers are required to pursue claims against the travel agency, to the extent that no alternative flight was offered by it, in accordance with Directive 90/314/EEC, which governs the relationship between passengers and travel agencies under the purchased package travel services.
This obligation is set out in Article 8 of Regulation (EC) No. 261/2004, which provides:
Right to reimbursement or re-routing
Where reference is made to this Article, passengers shall be offered the choice between:
(a)
— reimbursement within seven days, in accordance with the procedures set out in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, where relevant,
— a return flight to the first point of departure, at the earliest opportunity;
(…)
Paragraph 1(a) shall also apply to passengers whose flights form part of a package travel service, except for the right to reimbursement where such a right arises under Directive 90/314/EEC.
However, this provision does not limit passengers’ right to request the compensation provided for in Article 7 of Regulation (EC) No. 261/2004, this being a separate claim, as also stated in Recital (5) of the Regulation:
(5) Since the distinction between scheduled and non-scheduled air services tends to become blurred, this protection should apply not only to passengers on scheduled flights but also to those on non-scheduled flights, including those forming part of package travel services.
The compensation referred to in Article 7 of the Regulation amounts to:
(a) EUR 250 for all flights of 1,500 kilometres or less;
(b) EUR 400 for all intra-Community flights of more than 1,500 kilometres and for all other flights between 1,500 and 3,500 kilometres;
(c) EUR 600 for all flights not falling under (a) or (b).
Recently, we have noticed an increase in the number of passengers who choose to assert their rights through court proceedings, as the circumstances are considerably more advantageous. When passengers resort to specialized compensation companies, the amounts obtained are not received in full, but only partially, as the intermediary’s fees must also be covered.
Our law firm has obtained numerous favourable rulings for our clients, both in cases where air transport services were purchased through travel agencies and in cases where such services were purchased directly from airlines. By way of example, we refer to Civil Judgment No. 1145/2024 delivered by the Cluj-Napoca District Court, which became final due to the absence of an appeal, whereby the court ruled as follows:
“Partially grants the statement of claim filed by the claimants P.S.R., F.T.M., I.D.M. against the defendant A.W.A. S.A. Orders the defendant to pay the claimants the total amount of EUR 1,800 (EUR 600 for each claimant), equivalent in RON at the NBR exchange rate on the date of payment, representing compensation for flight delay, together with statutory default interest from the date of filing the claim – 27.07.2023 – until full payment. Orders the defendant to pay the claimants the amount of USD 882, equivalent in RON at the NBR exchange rate on the date of payment, representing damages – accommodation costs. Orders the defendant to pay the claimants the amount of RON 2,380 representing legal costs – attorney’s fees. Subject to appeal within 30 days from notification, to be filed with the Cluj-Napoca District Court, under penalty of nullity. Delivered today, 21.03.2024, by making the ruling available to the claimants through the court registry.”
In conclusion, we recommend initiating court proceedings to obtain the above-mentioned amounts, the main advantage being that you will recover in full all expenses incurred in connection with the relevant flight, depending on your specific situation, namely:
– if you purchased the airline ticket directly from the airline, you will be able to recover from it expenses consisting of: the purchase of a new flight, transport costs, the value of tickets to tourist attractions, and accommodation you could no longer benefit from due to a cancelled flight or changes made by the air carrier, provided that such expenses are duly proven. In addition, you will also obtain the compensation provided for in Article 7 of the Regulation, together with statutory interest and legal costs.
– if you purchased the airline ticket through a travel agency, the above-mentioned expenses will be recovered from the travel agency, based on the concluded contract, while from the airline you will request only the compensation provided for in Article 7 of the Regulation, together with statutory interest and legal costs.
If you wish to find out more information regarding obtaining compensation or other damages for flights cancelled or delayed by airlines, our specialists are at your disposal.
In a rapidly changing world, having the right legal partner makes a vital difference. The SCPA Campan & Timonea team is always ready to offer you the best solutions for legal matters of any nature. We invite you to visit https://ct-lawyers.ro/contact/ to schedule a meeting or contact us at office@ct-lawyers.ro.
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