YOUR RIGHTS
YOUR RIGHTS
Droit des passagers qui voyagent en avion
Civil Air Transport Law
In addition, depending on certain criteria set forth in laws and agreements, the airline may owe you money for refreshments, meals, lodging, transportation and communications.
Most air passengers are not aware of their rights and do not have enough information to file a claim with the airlines. Statistics show that only 2% of affected air passengers will complete a claim process. And since the process can be long and tedious, many get discouraged and give up. In fact, in addition to stretching out the settlement time, many airlines are reluctant to pay compensation and refuse claims by invoking “extraordinary circumstances”.
What are the extraordinary circumstances?
When airlines invoke mechanical problems as “extraordinary circumstances”, we automatically challenge the decision, according to the STURGEON judgment of November 19, 1999 (joined cases C-402/07 and C-432/07 Sturgeon / Condor Flugdienst GmbH and Böck and others / Air France SA). In this decision, the Court of Justice of the European Union stated that “a technical problem with an aircraft cannot be regarded as an exceptional circumstance unless that problem arises from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the airline concerned and are beyond its actual control.
However, the repair of a breakdown is not an extraordinary circumstance, as aircraft maintenance is part of the regular activities of airlines.
How we can help you
There are three (3) possible outcomes following receipt of the airline’s decision:
- Either we will have won the case in your favor; or
- Either we will be obliged to close your file, as the flight situation is not the airline’s responsibility; or
- Either we will initiate judicial or extrajudicial proceedings following the airline’s decision.
Let’s now take a look at the laws and international conventions.
Legislation of the European Union
Regulation (EC) 261/2004 of the European Parliament and of the Council, which came into force on February 17, 2005, establishes common rules on compensation and assistance to passengers in the event of
- denied boarding in case of overbooking
flight cancellations; - (long) flight delays; and
- when a passenger is transferred to a class lower than the one for which the ticket was purchased.
Regulation (EC) 261/2004 applies to flights departing from :
- from an airport within the European Union (EU) to an airport outside the EU, with all airlines; and
- from an airport within the European Union (EU) to an airport within the EU, with all airlines; and
- from an airport outside the EU to an airport within the EU, with EU airlines only.
Background:
We have prepared the following table, using AIR CANADA, a Canadian airline, and LUFTHANSA, a company headquartered in Germany, as examples to better illustrate the applicability of the regulation:
| ORIGIN OF THE FLIGHT | AIR CANADA | LUFTHANSA |
|
From within the EU within the EU |
Applicable | Applicable |
|
From within the EU outside the EU |
Applicable | Applicable |
|
From outside the EU within the EU |
Not applicable | Applicable |
|
From outside the EU outside the EU |
Not applicable | Not applicable |
Assistance provided in the event of a delayed flight (in addition to applicable compensation)
The airline may owe you assistance in the form of refreshments, meals, accommodation, transportation and communications. Do not hesitate to ask the customer service desk for assistance and to inform yourself of your rights.
We have prepared the following charts to better explain the assistance provided in the event of a delayed flight:
| FLIGHT DISTANCE | EXPECTED DELAY |
| Flight of 1500 km or less | Delay of 2 hours or more from the scheduled departure time |
| Flight of 1500 to 3500 km | Delay of 3 hours or more from scheduled departure time |
| Flight of 3500 km or more | Delay of 4 hours or more from scheduled departure time |
- Sufficient refreshment and refreshment facilities given the waiting time; and
- two telephone calls or send two free telexes, faxes or e-mail messages.
|
FLIGHT DISTANCE |
EXPECTED DELAY |
|
For all flights:
|
Delay of at least 5 hours from the scheduled departure time |
- in addition to the aforementioned assistance, reimbursement of the ticket for the part(s) of the trip not taken and for the part(s) of the trip already taken and no longer required in relation to the initial travel plan, as well as, if applicable
- a return flight to the original departure point as soon as possible.
|
FLIGHT DISTANCE |
EXPECTED DELAY |
|
For all flights:
|
When the departure time is at least one day after the originally announced departure time |
- in addition to the above mentioned assistance, hotel accommodation for one or more nights if necessary; and
- transportation between the airport and the accommodation.
Assistance provided in the event of a cancelled flight (in addition to applicable compensation)
In the event of a cancelled flight, passengers are entitled to the following assistance from the air carrier:
- refreshment and sufficient opportunity for refreshment given the waiting time; and
- two free telephone calls or send two free telexes, faxes or e-mails;
- Hotel accommodation for one or more nights if necessary.
Passengers are also entitled to be offered a choice by the air carrier between:
- reimbursement of the ticket for the part(s) of the trip not taken and for the part(s) of the trip already taken and no longer required in relation to the original travel plan, as well as, if applicable, a return flight to the original departure point as soon as possible; or
- re-routing to their final destination, under comparable transport conditions and in the shortest possible time; or
- re-routing to their final destination under comparable transportation conditions at a later date, at their convenience, subject to seat availability.
Compensation for delayed, cancelled or overbooked flights (in addition to assistance)
The compensation provided varies from 125 euros to 600 euros, depending on the distance of your flight and the number of hours of delay at your final destination.
The Air France v. Folkerts ruling in February 2013 clarified that it is the delay on arrival that prevails and not the delay on departure. Moreover, this principle also applies to flights with stopovers. If all legs of the journey have been booked and operated with the same airline, it is not important to determine at which segment of the journey the delay was caused.
It should be noted that it is the time of the opening of the doors on arrival that determines the delay.
|
FLIGHT SITUATION |
FLIGHT DISTANCE | COMPENSATION |
|
Delayed flight |
Flight of 1500 km or less | 250 euros |
| Flight of 1500 to 3500 km |
400 euros |
|
| Flight of 3500 km or more |
600 euros * / 300 euros ** |
* for a delay of four hours or more ;
** for a delay between three and four hours with re-routing.
|
FLIGHT SITUATION |
FLIGHT DISTANCE | COMPENSATION |
|
Cancelled flight WITHOUT REROUTING |
Flight of 1500 km or less |
250 euros |
| Flight of 1500 to 3500 km |
400 euros |
|
| Flight of 3500 km or more |
600 euros |
|
FLIGHT SITUATION |
FLIGHT DISTANCE |
COMPENSATION |
|
Cancelled flight WITH REROUTING * |
Flight of 1500 km or less | 125 euros |
| Flight of 1500 to 3500 km |
200 euros |
|
| Flight of 3500 km or more |
300 euros |
* When a passenger is offered re-routing to his or her final destination on another flight whose arrival time does not exceed the scheduled arrival time of the originally booked flight:
- a) two hours for flights of 1500 km or less,
- b) three hours for flights between 1500 and 3500 km,
- c) four hours for flights of 3500 km or more.
It is important to note that if the passenger was informed of the cancellation of the flight at least two weeks prior to departure or if the airline offered a re-routing with a substantially similar flight schedule, the passenger is not entitled to any compensation.
|
FLIGHT SITUATION |
FLIGHT DISTANCE |
COMPENSATION |
|
Denied boarding (overbooking) |
Flight of 1500 km or less | 250 euros |
| Flight of 1500 to 3500 km |
400 euros |
|
| Flight of 3500 km or more |
600 euros |
- When an air carrier plans to deny boarding on a flight, it first calls upon volunteers to waive their reservations in exchange for certain benefits, to be negotiated between the parties. Volunteers also benefit from the above-mentioned assistance.
- When the number of volunteers is not sufficient, the air carrier may deny boarding to passengers against their will. In such cases, the air carrier will compensate the passengers in accordance with the compensation provided for, and will also offer them the aforementioned assistance.
The Montréal Convention
The Convention for the Unification of Certain Rules for International Carriage by Air, commonly known as the “Montreal Convention”, came into force on June 28, 2004 for the member states of the European Union. This convention allows us to obtain compensation for expenses incurred (meals, lodging, etc.) or losses (damage to luggage, lost days of work or vacation).
Since no fixed amount is provided for by law, we must refer our clients to the Small Claims Court in order to obtain a judgment. We will soon be offering a preparation service.
United States Legislation
Flight delayed or cancelled
The law does not provide for any rights for air passengers in the case of delayed or cancelled flights. However, aggrieved passengers may be offered compensation services such as meals, drinks and hotel rooms, mainly in cases of delayed or cancelled flights due to mechanical problems, very rarely in situations of bad weather.
Overbooking or overbooking
U.S. airlines can force passengers to leave overbooked flights. If they cannot find enough volunteers, they obtain the consent of the passengers in exchange for compensation, which is then negotiated between the airline and the passenger.
Involuntary denied boarding
In the United States, The Code of Federal Regulations, Title 14, Aeronautics and Space, Part 250, establishes the rules for involuntary denied boarding cases and the conditions that an air passenger must meet to qualify for compensation in such cases.
If the passenger qualifies, the compensation offered is the same whether the flight is domestic or international:
|
0 to 1 hour delay If the carrier offers a scheduled re-routing to arrive at the passenger’s final destination or first scheduled stopover, no later than one hour after the scheduled arrival time of the passenger’s original flight. |
No compensation |
|
1 to 4 hours delay If the carrier offers a scheduled re-routing to arrive at the passenger’s final destination or first scheduled stopover more than one hour, but less than four hours after the scheduled arrival time of the passenger’s original flight. |
200% of the fare to the passenger’s final destination or first stop, to a maximum of US$675 |
|
More than 4 hours late If the carrier offers a scheduled re-routing to arrive at the passenger’s final destination or first scheduled stopover more than four hours after the scheduled arrival time of the passenger’s original flight. |
400% of the fare to the passenger’s final destination or first stop, to a maximum of US$1,350 |
CORRESPONDENCE
The EC 261/2004 regulation applies to both direct and connecting flights: it is the delay at the final destination that is taken into account, starting from a delay of three hours or more.
For example, your delayed flight (by less than three hours) caused you to miss your connecting flight, and you arrived at your final destination more than three hours late. This flight situation could entitle you to compensation, under certain conditions: both flight segments must have been with the same airline and the connecting flight must have been within the European Union. Let’s go back to our table above:
| FLIGHTS WITH CONNECTIONS | AIR CANADA Airline company Non-EU member |
LUFTHANSA Airline company Member of the EU |
| From within the EU within the EU Correspondence within the EU |
Right to compensation: YES | Right to compensation: YES |
| From within the EU within the EU Correspondence outside the EU |
Right to compensation: YES | Right to compensation: YES |
| From within the EU outside the EU Correspondence within the EU |
Right to compensation: YES | Right to compensation: YES |
| From inside the EU outside the EU Correspondence outside the EU |
Right to compensation: NO | Right to compensation: YES |
| From outside the EU outside the EU Correspondence within the EU |
Right to compensation: YES, if the delay or cancellation occurred within the EU |
Right to compensation: YES |
| From outside the EU outside the EU Correspondence outside the EU |
Right to compensation: NO | Right to compensation: YES |
| From outside the EU within the EU Correspondence within the EU |
Right to compensation: YES, if the delay or cancellation occurred within the EU |
Right to compensation: YES |
| From outside the EU within the EU Correspondence outside the EU |
Right to compensation: NO | Right to compensation: YES |
LIMITATION PERIODS
Article 35 of the Montreal Convention provides that a claim must be filed within two years of arrival at destination, or of the day on which the aircraft should have arrived, or of the cessation of transport.
As the European regulation EC 261/2004 does not specify any time limit within which a passenger must file a claim for a delayed, cancelled or overbooked flight, the limitation period is determined by the laws of each European country according to national laws.
Even though in November 2012, the Court of Justice of the European Union (judgment of November 22, 2012, Cuadrench More, C-139/11) ruled that the statute of limitations is determined by the national legislation of each member country of the European Union, a legal vagueness existed as to the applicable statute of limitations. Was it the two-year limitation period provided for in the Montreal Convention, or was it the limitation period determined by the law of the country concerned? For example, in France, “the action for payment of the lump sum is subject to the five-year limitation period of common law provided for in Article 2224 of the Civil Code”. The decision depended on the judge’s discretion.
On May 10, 2017, the Court of Cassation, the highest court of the French judiciary, ruled that the statute of limitations for compensation claims brought in France under EC Regulation 261/2004 will be five years after the injury, under French law (Case Number: 16-13352; Decision Number: 11700611).
Canada Legislation
15 juillet, 2019 – Gatineau, QC – Canadian Transportation Agency
Passengers now have new rights under the Canadian Transportation Agency’s (CTA) Air Passenger Protection Regulations (APPR) when they travel by air. Under the new regulations, a major regulatory initiative by the CTA, airlines must meet certain obligations to passengers, including:
- Provide passengers with clear and simple information on their rights and remedies, as well as regular updates in the event of flight delays or cancellations;
- Provide compensation of up to $2,400 if a passenger is denied boarding and travel for a reason attributable to the airline;
- Ensure that passenger handling standards are met during all ramp delays and allow passengers to exit the aircraft, when it is safe to do so, if a ramp delay exceeds three hours and imminent takeoff is unlikely;
- Provide compensation of up to $2,100 for lost or damaged baggage, as well as reimbursement for baggage fees paid;
- establish clear policies for the transportation of musical instruments.
Starting December 15, 2019, airlines will also have obligations to passengers in the event of flight disruptions and when assigning seats to children.