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08 March 2006
EU Regulation 261/2004 establishes rules on the compensation and assistance to be provided to air passengers who are denied boarding or experience the cancellation or long delay of their flight.
The organization responsible for enforcing the regulation in Belgium is the Direction Générale Transport Aérien (DGTA). Its ruling of January 9 2006 sheds new light on the implementation of the regulation in cases involving consecutive unexpected events that are not directly connected.
During the last days of August 2005, two Belgian citizens were waiting for their flight back to Belgium after a week's holiday in Italy. However, on the day before their flight was due to leave, one of the aircraft operated by the Belgian airline which was due to operate the flight experienced a birdstrike in Greece and was grounded for two days. As the airline relied on a small number of aircraft and concentrated on charter flights, its operations were seriously disrupted for the following two days. The airline decided to sublease an aircraft from another operator in order to pick up passengers waiting at two Italian airports. However, one of the airports subsequently announced that it would be closed at night for maintenance, which led the replacement carrier to refuse the charter, as its aircraft was at risk of remaining grounded overnight at the closed Italian airport. The passengers were eventually brought back to Brussels the following day on board an aircraft operated by the Belgian airline. The flight was scheduled under the original flight number, but was 13 hours late.
The two claimants filed a complaint with the DGTA. They claimed €400 each in compensation on the grounds that the regulation provides that passengers are entitled to compensation up to this amount in respect of flights of over 1,500 kilometres within the European Union.
The airline argued that, although the passengers had had to wait for 13 hours, the incident should be assessed as a delay rather than a cancellation. It referred to Article 6(1)(ii) of the regulation, which includes in its definition of the term 'delay' circumstances in which "the reasonably expected time of departure is at least one day after the time of departure previously announced".
Article 2(1) states that 'cancellation' means "the non-operation of a flight which was previously planned and on which at least one place was reserved". The airline relied on the fact that the planned flight in question had eventually been provided. The passengers had been entitled to assistance in relation to a delayed flight as described in Article 6(1), which they had received. The airline therefore argued that they had no grounds for complaint.
The airline further claimed that the passengers had no right to compensation, which it argued is to be provided only in circumstances where boarding is denied or a flight cancelled (Articles 4(3) and 5(1)(c) respectively). It stressed that Article 7, which sets out compensation amounts, introduces the amounts with the words "where reference is made to this article, passengers shall receive compensation". As no reference is made to Article 7 in Article 6, which deals with delays, the airline argued that the passengers were not entitled to claim compensation under the terms of the regulation.
The DGTA dismissed the passengers' claim. It held that both the birdstrike and the subsequent closure of the Italian airport, which prevented the sublease from taking place, had been caused by exceptional circumstances that would limit or exclude the operating air carrier's obligations even if all reasonable measures had been taken according to the regulation.
The DGTA took the opposite view to the British small claims court which recently ruled in Harbord v Thomas Cook that an incident affecting an aircraft other than the one to be used by the claimant could not be said to have caused "unexpected flight safety shortcomings" that would limit or exclude the obligations of an operating air carrier.
However, Belgium's courts have been known to favour a fact-sensitive approach in cases relating to the so-called in concreto or 'subjective' test in Article 25 of the Warsaw Convention 1929, as amended by the Hague Protocol 1955, ever since precedent was set by the Supreme Court in Tondriau v Air India in 1977.
In assessing the present claim, the DGTA took into account all relevant factual circumstances, including the birdstrike that initially disrupted the airline's operations, the subsequent attempt to provide the scheduled service by chartering another aircraft and the second unexpected event, namely the closure of one of the Italian airports where some of the passengers were waiting.
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