European flight compensation (EC261): a user’s guide

I recently happened across this blog post which talks about how to file an EC261 claim. I have unfortunately had to file multiple of these, and I thought that I would document some further tips in case anyone finds them useful. There are some example emails at the bottom of the page.

If you think that anything here is not correct or have any comments/suggestions, please drop me a line at teymour@reasoning.page.

Disclaimer: I am not a lawyer, this is purely advisory and often based on my anecdotal experience, do not take this for legal advice. Use entirely at your own risk.

The EC261 regulation is an EU law (also retained on UK statute post-Brexit) which is designed to make airlines behave better by imposing a financial penalty for not running flights properly. This has made a big difference but unfortunately some airlines continue to create havoc, the worst offender (in Europe) being Wizz Air (and by a big margin, too). EC261 says many things, one of which is this

Right to compensation

1. Where reference is made to this Article, passengers shall receive compensation amounting to:

(a) EUR 250 for all flights of 1500 kilometres or less;

(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;

(c) EUR 600 for all flights not falling under (a) or (b).

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A32004R0261

EC261 stipulates that in the event of a flight cancellation that customers are entitled to the amounts above, unless (emphasis mine)

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A32004R0261

Although not in the original legislation, the ECJ (European Court of Justice, the EU’s highest court) has also stated that that airlines must also pay compensation (the above amounts) in the case where passengers are delayed more than three hours:

In the light of the case-law of the Court of Justice, which treats the situation of passengers whose flights are the subject of long delays – that is to say, a delay of three hours or more in arrival at their final destination – as being equivalent to that of passengers whose flights are cancelled, the appeal court interpreted Article 3(2)(a) of that regulation as meaning that a passenger who was informed, prior to his or her departure, of a delay of three hours or more may obtain the compensation provided for in Articles 5 and 7 of that regulation, even if that passenger did not present himself or herself at the airport.

From the ECJ ruling in the case with number C-474/22

Contacting an airline

Most airlines try to make it a pain to contact them. Last time I tried to submit a compensation claim to Wizz Air (also the last time I flew on Wizz Air) their online form did not appear to function correctly. If the airline’s compensation request form does not work it is very valid to send them a physical letter. Generally companies do open (and seriously read) physical mail they receive. You can also send a letter tracked and signed (meaning that you have proof that you sent the letter, and receive a proof from the post service that the airline has received the letter).

How to encourage the airline to take you seriously

  1. The airline wants to save money. If the airline thinks you will give up, it will try to exploit this. Keep pushing them consistently and (usually) they will eventually pay up.
  2. Don’t take anything personally. You are just instructing the airline to pay you compensation that you are legally owed. The airline is trying to evade its legal duty. They don’t care about you specifically, they are just doing a job. Remain calm and don’t get emotionally involved in the process.
  3. Don’t write things in a very informal manner – write professional emails, which sound like a professional is behind them and will just keep pursuing the airline until the airline respects its obligations.
  4. Don’t go over the top writing a “formal” email – I would say the optimal style is “smart casual”; don’t use flowery language. There’s a kind of “perfect is the enemy of good”/”simpler is better” action at work.
  5. Be aware of your options – you can complain to your civil aviation authority if the airline does not handle your complaint properly, or refuses to pay compensation.
  6. Don’t threaten to sue the airline unless you actually intend to. If you do intend to sue the airline you should most probably stop reading this and talk to a lawyer.

When the airline becomes obstreperous

Most airlines have put some thought into not paying compensation. Here are some classic excuses, and things that usually work to get around them

  • Airline employee: “the delay was 2 hours 59 minutes [i.e. lower than the 3 hour threshold]”. The delay is to be determined based on when the aircraft doors are opened and not when the plane lands – see this ECJ ruling.
  • Airline employee: “It was an exceptional circumstance”. EC261 states that in the event of “exceptional circumstances” (e.g. a volcano eruption over Iceland or a tornado) airlines are not obligated to pay compensation. Airlines regularly try to bend the definition of “exceptional circumstances”. Very frequently an airline will just say “there was an exceptional circumstance”, without providing a reason, let alone justification. Do not let them get away with this. Ask them for the reason, ask them to justify why the event was an extraordinary event (if you ask for aircraft flight logs, and internal airline communications to prove this airlines will very often give up). The bar for “exceptional circumstance” is in reality fairly high. For example aircraft technical faults (e.g. the plane broke down) are not extraordinary circumstances (it’s not at all extraordinary for an airline to discover that an aircraft has broken down, that’s why they should perform more regular maintanence).
  • Airline employee: “We won’t cover your expenses (e.g. food, hotel, etc) because your expenses are unreasonable”. Airlines are supposed to provide you with accomodation, food, etc while you wait. Some airlines (e.g. Wizz, or if you are flying out of a small airport where the airline only runs a few flights from) do not do this. I think a sensible reply here is to point out that the airline caused you significant stress and abrogated its responsibility to provide you with accomodation directly. Unless you booked a hotel stay in the Ritz Carlton I would push back here.
  • Airline employee: says nothing. Airlines may start to “ghost” you and refuse to reply. At this point it’s worth saying something along the lines of “I first wrote to you X months ago, this kind of issue is a very routine and simple matter, please reply by Y date or I will have to take this case to the aviation regulator”.
  • Airline employee: tries to make you sign an unreasonable waiver. This actually happened to me, and I had been arguing with the airline1 for six months so I eventually gave up and signed the waiver (boo me). I would push back here by pointing out that the EC261 regulation does not state that airlines may do this. If they have put such a clause in their conditions of carriage or ticket contract terms I would argue that this is an unfair contract term (e.g. under UK law contract terms are unfair if they restrict the consumer’s remedies2). You can also try the fun thing of crossing out contract terms, signing the document, and returning it. The airline will probably check your signature but you can see what happens if you sign the contract as “void”.

When the airline is so cantankerously impervious to reason that you loose all hope

Contact your aviation regulator.

What to say in your initial email/letter

As discussed above, sometimes a physical letter works better. I think the main things to include are are

  • name
  • email address associated with the booking – if you wrote a letter ask them to reply by email if you prefer that
  • flight number
  • booking reference
  • phone number associated with the booking
  • amount of compensation you are entitled to (plus the currency – make sure the account is actually denominated in the same currency that the airline will pay you in, or you may end up paying quite high currency conversion fees)
  • expenses that you want the airline to reimburse you for (plus the currency, same as above vis a vis bank account)
  • bank details

Some example emails for excuses/airline outright refuses to pay

Context: airline claimed they do not owe compensation because there were “uncontrollable reasons” which lead to the cancellation/delay

Dear [Airline],

Thank you for your email.

The EC261 regulation requires that airlines pay compensation to customers who are delayed due to factors within the airline’s control. Please can you outline why in the airline’s opinion the delay is the result of extraordinary events outside the airline’s control? Please include detailed evidence, such as excerpts from aircraft logbooks, internal airline communications, and any other relevant evidence.

Additionally I would like to emphasise that a technical defect does not qualify as an extraordinary circumstance as technical defects are not outside the control of the airline. The European Court of Justice has upheld this view in multiple rulings (two such cases are Van der Lans v KLM or Wallentin-Hermann v Alitalia—Linee Aeree Italiane SpA).

Yours sincerely,
[your name]

Context: airline claimed that the case was an extraordinary circumstance because the plane broke down

This is pretty similar to the previous email.

Dear [Airline],

An extraordinary circumstance is something that should not be expected in the normal course of an airline’s operations. A technical problem is not outside the control of the airline, and as such does not qualify as an extraordinary circumstance.

The European Court of Justice has routinely held that a technical defect does not qualify as an extraordinary circumstance (two such cases are Van der Lans v KLM or Wallentin-Hermann v Alitalia—Linee Aeree Italiane SpA).

I believe that I am owed compensation of [amount]. You can find my bank details in my first message (sent on [date]) to you in relation to this matter.

Yours sincerely,
[your name]

Context: the airline claims that a three hour delay was a 2 hour and 59 minute delay (or a 2 hour 50 minute delay)

Remember: the aircraft has only arrived when at least one door is open! It’s invaluable to look at your watch when the door and note the time when the door is actually opened (e.g. in a notes app). Computer systems on board the aircraft also maintain a log of when the parking brake is activated and cabin doors open – this system is called ACARS (Aircraft Communication Addressing and Reporting System).

Dear [Airline],

Thank you for your email.

In your message of [date] you stated that the aircraft was delayed by [time]. The ECJ has been very clear that “the actual arrival time of a flight corresponds to the time at which at least one of the doors of the aircraft is opened” in the case Germanwings GmbH v Ronny Henning. I believe that the doors to the aircraft were opened at [time], more than 3 hours after the originally stated time of arrival.

Please supply the exact time when at least one door was opened for according to the ACRS (Aircraft Communication Addressing and Reporting System) data from the aircraft.

Yours sincerely,
[your name]

Example emails when the airline tries to hold up the process

Context: the airline stops talking to you

Dear [Airline],

I am writing to express my concern at the inordinate amount of time that you are taking to handle a simple business matter. I first wrote to you [number of months] ago. I have not received a reply to my most recent message to you which I sent [number of days] business days ago.

I hope to resolve this matter directly with you, but if this is not possible I will have to make a formal complaint to the [civil aviation body of your country e.g. in the UK ‘CAA’ or in Austria ‘Supreme Civil Aviation Authority’].

I await your prompt reply

Yours sincerely,
[your name]

Context: the airline attempts to force you to sign a waiver

Dear [Airline],

Please see Article 15 of the EC261 regulation specifically titled “exclusion of waiver”. The airline has an obligation to pay compensation to passengers, and as per the regulation “Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived”. Attempting to predicate my right to compensation on signing a very restrictive waiver is a curtailment of my legal rights.

Please pay the required compensation to my bank account as soon as possible.

Yours sincerely,
[Your name]

  1. Unfortunately as I signed the waiver I am not allowed to name names. ↩︎
  2. Again, I am not a lawyer. ↩︎

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