Flight delays and cancellations: compensation

When does the Regulation apply?

The Regulation applies to flights departing from an airport in an EU Member State, and to flights from an airport in a third country to an airport in a Member State if the flight is operated by a Community (EU) carrier and the passenger has not already received compensation or assistance in that third country (Lennureisijate määrus art 3 lg 1) [6].

You must have a confirmed reservation and present yourself for check-in by the time you were given or, if no time is indicated, not later than 45 minutes before the published departure time; in the event of a cancellation, the check-in requirement does not apply (Lennureisijate määrus art 3 lg 2) [6]. The Regulation does not apply to passengers travelling free of charge or at a reduced fare not available to the public, but it does apply to tickets issued under a frequent flyer programme or other commercial programme (Lennureisijate määrus art 3 lg 3) [6].

Compensation is paid and assistance given by the operating air carrier (tegutsev lennuettevõtja) (Lennureisijate määrus art 5 lg 1) [2], that is, the air carrier that performs or intends to perform the flight (Lennureisijate määrus art 2 p b) [7].

How much is the compensation?

Compensation depends on the length of the flight (Lennureisijate määrus art 7 lg 1) [1]:

• 250 euros for all flights of 1 500 kilometres or less;
• 400 euros for all intra-Community flights of more than 1 500 kilometres and for all other flights between 1 500 and 3 500 kilometres;
• 600 euros for all other flights.

The distance is determined by the final destination and measured by the great circle route method (Lennureisijate määrus art 7 lg 1 and 4) [1]. If the carrier offers re-routing on which you arrive no more than two, three or four hours later than originally scheduled (by the same distance bands), it may reduce the compensation by 50 % (Lennureisijate määrus art 7 lg 2) [1].

Compensation is paid in cash, by electronic bank transfer, bank orders or bank cheques; in travel vouchers or other services only with the passenger's written agreement (Lennureisijate määrus art 7 lg 3) [1].

When is compensation due for a cancellation or a delay?

Cancellation. No compensation is due if you were informed of the cancellation (Lennureisijate määrus art 5 lg 1 p c) [2]:

• at least two weeks before the scheduled departure;
• between two weeks and seven days before departure and offered re-routing allowing you to depart no more than two hours earlier and reach your final destination no later than four hours after the scheduled arrival time;
• less than seven days before departure and offered re-routing allowing you to depart no more than one hour earlier and reach your final destination no later than two hours after the scheduled arrival time.

The burden of proving whether and when the passenger was informed of the cancellation lies with the carrier (Lennureisijate määrus art 5 lg 4) [2].

Delay. The Regulation itself provides compensation for cancelled flights, but the EU Court of Justice has confirmed that passengers on long-delayed flights are entitled to compensation on the same footing as passengers on cancelled flights if they lose three hours or more compared with the originally scheduled arrival time (EKo C-581/10 ja C-629/10) [3]. What counts is therefore the delay on arrival, not on departure.

Denied boarding. If you are denied boarding against your will, the operating carrier must immediately compensate and assist you (Lennureisijate määrus art 4 lg 3) [8].

What are extraordinary circumstances?

The carrier does not have to pay compensation if it proves that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all necessary measures had been taken (Lennureisijate määrus art 5 lg 3) [2]. As the Supreme Court of Estonia (Riigikohus) has explained, an extraordinary circumstance is an event which, by its nature or origin, is not inherent in the normal activity of the carrier and is beyond its actual control (RK 2-23-117906/34) [9].

The necessary measures also include limiting the consequences: the carrier must look for other direct or indirect flights arriving earlier than its own next flight, including flights of other carriers that need not belong to the same airline alliance (RK 2-23-12908/28) [10]. Extraordinary circumstances release the carrier only from paying compensation, not from the duty of care; that duty is not limited in time or in money (EKo C-12/11) [11].

What assistance must the carrier give while you wait?

If the carrier reasonably expects the departure to be delayed by two hours or more for flights of 1 500 kilometres or less, by three hours or more for intra-Community flights of more than 1 500 kilometres and other flights between 1 500 and 3 500 kilometres, or by four hours or more for all other flights, it must offer assistance (Lennureisijate määrus art 6 lg 1) [4]:

• free meals in reasonable relation to the waiting time, and two telephone calls, telex or fax messages, or e-mails (Lennureisijate määrus art 9 lg 1 p a and lg 2) [5];
• hotel accommodation and transport between the airport and the place of accommodation if the reasonably expected departure time is at least the day after the previously announced departure time (Lennureisijate määrus art 6 lg 1 and art 9 lg 1 p b and c) [4] [5];
• if the flight is delayed by at least five hours, you may choose a refund of the ticket price, which must be made within seven days (Lennureisijate määrus art 6 lg 1 and art 8 lg 1 p a) [4] [12].

If a flight is cancelled, the operating carrier must offer you a choice: a refund of the ticket price within seven days (where relevant together with a return flight to the first point of departure), re-routing to your final destination at the earliest opportunity, or re-routing at a later date of your choosing (Lennureisijate määrus art 5 lg 1 p a and art 8 lg 1) [2] [12]. It must also provide meals and communication, and a hotel if the new flight departs at least the day after the scheduled departure of the cancelled flight (Lennureisijate määrus art 5 lg 1 p b) [2].

What the law says

• „Tegutsev lennuettevõtja ei ole kohustatud maksma hüvitist vastavalt artiklile 7, kui ta suudab tõestada, et tühistamise põhjustasid erakorralised asjaolud“ [2] (translation: an operating air carrier is not obliged to pay compensation in accordance with Article 7 if it can prove that the cancellation was caused by extraordinary circumstances; Lennureisijate määrus art 5 lg 3) – the burden of proof is on the carrier, not the passenger.
• „250 euro ulatuses kõikide kuni 1 500 kilomeetri pikkuste lendude puhul“ [1] (translation: 250 euros for all flights of 1 500 kilometres or less; Lennureisijate määrus art 7 lg 1 p a) – the amount depends on distance, not on the ticket price.
• „ooteajaga võrreldes piisav söök“ [5] (translation: meals in reasonable relation to the waiting time; Lennureisijate määrus art 9 lg 1 p a) – meals are part of the free assistance.
• „Käesoleva määruse alusel reisijate ees võetud kohustusi ei või piirata ega nendest loobuda“ [13] (translation: obligations towards passengers under this Regulation may not be limited or waived; Lennureisijate määrus art 15 lg 1) – the terms of the contract of carriage cannot narrow the passenger's rights.

What to do

1. Ask at the airport for a written notice of your rights; the carrier must also give it for a delay of at least two hours, together with the contact details of the designated body (Lennureisijate määrus art 14 lg 2) [14].
2. Keep your ticket, boarding pass and receipts. If the carrier failed to provide assistance, you are entitled to claim the costs this caused you (EKo C-83/10) [15].
3. Send your claim to the operating carrier and work out the amount by the length of the flight (Lennureisijate määrus art 7 lg 1) [1].
4. If you accepted lower compensation at the airport because you were not properly informed of your rights, you may still seek additional compensation before the competent courts or bodies (Lennureisijate määrus art 15 lg 2) [13].
5. If the carrier refuses, you may file a complaint with the designated body (Lennureisijate määrus art 16 lg 2) [16]; in Estonia, the Consumer Protection and Technical Regulatory Authority (Tarbijakaitse ja Tehnilise Järelevalve Amet) ensures the Regulation is applied under the Aviation Act (lennundusseadus, LennS) (LennS § 58⁴) [17]. The Authority itself does not resolve contractual consumer disputes; that is done by the Consumer Disputes Committee (tarbijavaidluste komisjon) attached to it under the Consumer Protection Act (tarbijakaitseseadus, TKS) (TKS § 21 lg 3) [18], if the trader is established in Estonia (TKS § 40 lg 3) [19]. Resolving a dispute before the Committee is free of charge for the parties (TKS § 45 lg 4) [20].

Frequently asked questions

Can I get compensation for a delayed flight?

Yes, if you lose three hours or more compared with the originally scheduled arrival time and the delay was not caused by circumstances that could not have been avoided even if all necessary measures had been taken (EKo C-581/10 ja C-629/10) [3].

Do extraordinary circumstances release the carrier from providing meals and accommodation?

No. Extraordinary circumstances release the carrier from paying compensation, but the duty of care continues throughout the waiting time and is not limited in time or in money (EKo C-12/11) [11].

Do I have to accept compensation in the form of other services?

No. Compensation is paid in money (cash, bank transfer, bank order or cheque); travel vouchers or other services only with your written agreement (Lennureisijate määrus art 7 lg 3) [1].

Can I claim more than the Regulation provides?

The Regulation does not affect a passenger's right to further compensation, but compensation granted under the Regulation may be deducted from it (Lennureisijate määrus art 12 lg 1) [21]. According to the EU Court of Justice, further compensation may also cover non-material damage within the conditions set by the Montreal Convention and national law (EKo C-83/10) [15].