Airlines overruled in compensation row

Passengers are entitled to compensation if their flights are delayed by three hours or more, but a legal challenge by airlines has seen claims put on hold

Passengers whose flights are delayed by three hours or more should be entitled to compensation from airlines, according to a senior European Court of Justice (ECJ) official. 

Yves Bot, an ECJ advocate general, has opposed a joint legal challenge by British Airways, easyJet, Tui Travel and the International Air Transport Association to compensation rules introduced in November 2009.

Although his statement does not amount to a legal ruling, the ECJ is expected to make a binding decision on the challenge in the coming months.

Under current regulations passengers flying to or from an EU, Swiss, Norwegian or Icelandic airport, or with an EU, Swiss, Norwegian or Icelandic-based airline, are entitled to meals and refreshments and free telephone calls or emails if their flight is delayed by three hours or more.

They are also entitled to compensation of between £200 and £480, depending on the distance of the flights. However, airlines do not have to pay compensation if they can prove the delay is not their fault, and has been caused by “extraordinary circumstances”.

Airlines’ concerns about the additional cost of providing such compensation were heightened by the six-day shutdown of European airspace caused by the ash cloud in Iceland and since August 2010, the legal challenge by BA, easyJet and others has seen all claims for compensation put on hold by British airlines. 

A spokesman for BA said: “We are aware of today's non-binding opinion given by the advocate general and we await the final ruling in due course. 

“The European Court of Justice ruling from November 2009 has come under criticism from many parties and we also believe the ruling was wrong.” 

Nick Trend, Telegraph Travel's consumer correspondent, suggested that even if the ruling is upheld, a sudden change in what passengers are entitled to claim is unlikely. 

"Cash compensation only applies if the delay is the airline’s fault," he said. "If the airline can show that the delay is caused by 'extraordinary circumstances' - it does not have to pay compensation. 

"Unfortunately, the definition of 'extraordinary' covers most delays, including those caused by bad weather, fog, air traffic control or other strikes, political instability and one off incidents such as the ash cloud. In practice, it is only in a relatively small proportion of cases, such as a technical problem with an aircraft, when the airline becomes liable."