Air passengers whose flight has been delayed may seek financial compensation when they reach their final destination three hours or more after scheduled arrival time, confirms Yves Bot, advocate-general at the EU Court of Justice. In an opinion issued on 15 May (joined Cases C-581/10 and C-629/10), he confirms the court’s ruling to this effect in November 2009 (joined Cases C-402/07 and C-432/07).

Regulation 261/2004 on air passengers’ rights currently reserves financial compensation to cases of flight cancellations but not to delays. With the European Commission currently revising this regulation, this opinion is likely to anger airlines, particularly because the European Parliament, in a recent resolution (see Europolitics 4396), asked the Commission to take case law into account in revising the regulation.

The court was asked by a German and a British court whether it confirms its 2009 interpretation of EU law. For Bot, there is no reason not to do so: the airlines have not presented any new elements that might call into question the court’s 2009 interpretation.

The advocate-general reiterates the same argument, moreover, the principle of equal treatment, a fundamental element of EU law. Passengers who are inconvenienced due to a delay must not be treated differently from those inconvenienced due to a cancellation. The damage is the same: a loss of time, delayed arrival, etc and all passengers must be treated in the same way and be compensated. Since Regulation 261/2004 establishes a right to compensation when passengers of a cancelled flight suffer a loss of time equal to at least three hours, the court applied, in 2009, this same delay of three hours to entitle passengers to compensation for delay. Bot confirms this delay of three hours.

The advocate-general also finds that this EU legislation is compatible with the principle of proportionality. Compensating passengers whose flights have been delayed does not result in “an arbitrary and unduly severe financial burden” on air carriers, he holds, particularly because delays of more than three hours are infrequent. Moreover, airlines are not obliged to pay compensation if the cancellation or long delay is caused by ‘extraordinary circumstances’.

In these two new cases, the airlines also seek to obtain a limit on the temporal effects of the upcoming judgement, namely that it may not be used as the basis for claims for compensation prior to the date of judgement, except for those cases where passengers have already brought court proceedings as of that date. Bot rejects their arguments on the basis of existing case law.