Spain is the third most-visited touristic destination in the world trailing behind France and the U.S., and many visitors are expats or second-home owners. 2014 saw another record-breaking year with over 65 million tourists visiting the country, consolidating a trend which remains unabated year-on-year in the last decade. The vast majority visit the country using an air carrier as transport. The purpose of this article, by lawyer Raymundo Larraín Nesbitt, is to do a brief overview of the rights air passengers have in Spain (in fact, throughout the European Union) such as compensation for flight delays or lost luggage.
Photo credit: © willypd / Fotolia
By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of June 2015
In truth the bill of rights I quote is extensive to the European Union’s 28 Member States, not just Spain.
Depending on the type of contractual breach, it will give way to different passenger rights (compensation, reimbursement, care & assistance etc.).
EU Regulation 261/2004 was passed in 2005 to enhance and enforce the rights of passengers who are subject to cancellations, delays, denied boarding and downgrading when flying. It was introduced to help compensate passengers for the loss of time and inconvenience suffered when you experience a flight delay or cancellation.
Annex to Regulation 889/2202 applies only to luggage (lost, damaged, destroyed).
I will purposely exclude Montreal’s Convention on Air Passenger Rights as it mainly applies to flights outwith the European Union which escapes this article’s scope.
Who Does EU Regulation 261/2004 Apply to?
This Regulation binds all EU-Member States, including Spain.
It applies to:
• All outbound flights from an EU country and which have as destination a fellow EU country regardless of the passenger’s age and nationality.
• It also applies to inbound flights to any EU-Member State chartered by an EU-licenced airline (regardless of point of departure).
I. Contractual Breaches
1. Denied Boarding (article 4).
2. Cancelled Flights (article 5).
3. Delays (article 6).
4. Delayed, Lost & Destroyed Luggage (Annex to Regulation 889/2202)
II. Passenger Rights
1. Right to compensation (article 7)
2. Right to reimbursement on re-routing (article 8).
3. Right to care and assistance (article 9).
4. Right to upgrade/downgrade (article 10).
I. Contractual Breaches
1. Denied Boarding
Will always give right to compensation unless there are health and safety reasons besides the passenger not carrying the appropriate legal documents to board a flight.
Most common causes of denied boarding are:
• Overbooking. Triggers right to care & assistance besides compensation (see section below for details).
• Unjustified reasons to deny passenger boarding.
• Abnormal passenger ID.
• Not making use of a single ticket on a return flight. These are known as “no-show” clauses on outbound flights; Spanish Mercantile courts have ruled them as consumer abusive clauses and therefor null and void. A passenger that missed his outbound flight can make use legally of his return ticket.
2. Cancelled Flights
Cancelled flights will always give right to compensation with only two exceptions that waive this right:
a. Air carrier gives advanced notice of a delay.
• The airline has informed with two weeks’ notice of the delay.
• Airline has informed between 2 weeks and up to 7 days before the scheduled departure. The airline must offer alternative re-routing transport.
• The airline gives notice less than seven days before departure. It must also offer alternative re-routing transport subject to more stringent regulation on departure and time of arrival.
It is the company’s onus to prove it has notified passengers in time in compliance with this Regulation.
b. Force Majeure
Is defined as an extraordinary and unforeseeable disruptive circumstance. The reason on why it is excluded from compensation is because it is not under an air carrier’s direct control.
Examples of unforeseen events: air traffic controllers’ strike, adverse weather (i.e. volcanic ash from an Icelandic volcano, blizzard), terrorist bomb threat.
Examples of causes which are not due to extraordinary force and would give right to compensation: technical fault or air carrier’s pilot strike.
As a general rule, delays give right to care and assistance.
• The right to care and assistance kicks in after two hours for flights up to 1,500km.
• After three hours for flights between 1,500-3,500km.
• After four hours for flights over 3,500km.
Compensation is ruled out with only one exception:
• If the delay is over three hours. In this case compensation is applicable.
4. Delayed, Lost & Destroyed Luggage
A different law applies, Annex to Regulation 889/2202. The passenger has a right to compensation (but not in the terms of regulation 261/2004). A passenger should contact the handling agent immediately in such an event to file a claim. The compensation is up to 1,131 Special Drawing Rights (Derecho Especial de Giro) per passenger which in 2.015 equates to approximately €1,400 (the IMF’s benchmark to which it is referred fluctuates in value). This amount applies to all three cases: delayed, lost and destroyed luggage i.e. luggage is mistakenly re-routed to Glasgow and we are on vacation in Ibiza. Luggage arrives three days later. In the meantime we’ve been forced to buy spare clothes etc. We are entitled, per passenger, up to €1,400.
A passenger can fill in a special form to claim more if the value of the luggage exceeds this threshold or else hire an ad hoc insurance.
II. Passenger Rights
1. Right to Compensation
• €250 for flights of up to 1,500 kms
• €400 for Pan-European flights of more than 1,500 kms. Remainder of flights between 1,500 and 3,000 kilometres.
• €600 for all flights that may not be included in the above two categories.
2. Right to Reimbursement on Re-routing
If your flight is cancelled then the airline may offer to put you on an alternative flight. If you miss your connecting flight then the airline might book you onto the next flight leaving for your intended final destination. If you are delayed overnight then the airline should put you up in a hotel room and pay for transport to/from the airport.
3. Right to Care and Assistance
Again, your right to care and assistance from the airline comes into play whilst you are actually being delayed. This right applies to delays, even if they are caused by what the Regulation calls an ‘extraordinary circumstance’. This entitles you to:
• Food and drink in reasonable relation to the waiting time.
• Hotel accommodation if you need to stay overnight.
• Transport between the airport and hotel (if necessary).
• Two telephone calls/telex/fax messages/e-mails.
4. Rights on Upgrade/Downgrade
a. If a passenger is upgraded (i.e. from tourist to first-class) the air carrier cannot request additional payment.
b. If a passenger is downgraded the air carrier will re-imburse:
• 30% of the ticket for all flights up to 1,500 kms.
• 50% of the ticket for Pan-European flights exceeding 1,500 kms.
• 50% of the ticket for all flights between 1,500 and 3,500 kms (overseas EU-territories are excluded).
• 75% of the ticket for all flights not included in the above, included those between EU-countries and their overseas territories.
How and Where Do I Claim Flight Compensation?
Monetary compensations deriving from article 7 of Regulation 261/204 should ideally be automatic. You should just fill in the form supplied by the air carrier at a handling desk to be compensated if you qualify.
However in practice some stubborn air carriers are reluctant (understatement) to pay any form of compensation and will push back. You should not be daunted. You may then need to exercise your rights to monetary compensation before any Mercantile court in Spain assisted by a lawyer.
How Long do These Claims Take on Average and What is The Success Rate?
They take nine months and the success rate is over 90%, on average.
Statutory Claim Period for Compensation in Spain
This statute of limitations can be interrupted by judicial or extrajudicial notifications; meaning the timer is reset and the 15 years are counted anew as from the notification.
Conclusion to Air Passenger Rights
Because of economies of scale it makes sense to group passenger claims to bring a single case before a Mercantile court i.e. transoceanic flight that is over three hours delayed or cancelled without giving notice.
“I know the British people and they are not passengers – they are drivers.” – David Cameron.
David William Donald Cameron is a British politician and Leader of the Conservative Party since 2005. He has served as Prime Minister of the United Kingdom since 2010.
Volcanic Ash, Cancelled Flights and Passenger’s Rights – 19th April 2010
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2015 © Raymundo Larraín Nesbitt. All rights reserved.
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