Emirates and EC261 compensation
Aug 29, 2017 | 4:58 am
#1
Original Poster
Join Date: Jan 2017
Posts: 59
Emirates and EC261 compensation
I'd be interested in others experience of claiming EC261 compensation from Emirates. My flight out of Amsterdam was delayed 65 minutes on arrival in Dubai, meaning that I missed my onwards connection (same booking) and arrived more than 24 hours late.
Emirates claim that EC261 does not apply to a connecting flight, writing the below email:
I have responded and referred them to the EU court interpretation stating the opposite, of which they are obviously aware but want to try and put people off.
Does anyone have any advice for escalating this if needed, or any reference to similar supporting cases?
Emirates claim that EC261 does not apply to a connecting flight, writing the below email:
Please accept my apologies for the inconvenience you experienced due to the delay of your flight EK150 from Amsterdam to Dubai on 10 August. Although every effort is made to achieve on-time departures, which is an integral part of our product, there are occasions when flights are delayed due to unforeseen circumstances. Being a customer service orientated organisation, we are well aware of the importance of meeting our passengers' expectations and regret we were unable to do so on this occasion. I do hope that you will accept my apology, as it is intended most sincerely.
As flight EK150 arrived into Dubai at 0735 hours on 11 August, therefore you missed your onward flight EK945 which was scheduled to depart at 0755 hours on 11 August. Our Reservations Team re-booked you on the next available flight to Basra on EK947 on 12 August. I note, in an effort to minimise the inconvenience you were provided with complimentary hotel accommodation at the airline's expense during your transit in Dubai.
Emirates wishes to inform you that it is always our intention to comply with legislation in all of the jurisdictions in which we operate. However, in specific response to your demand for compensation, we refer you to the actual text of the Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
In Article 6, paragraph 1, section (c), you will note that the requirement for compensation is applicable when the arrival delay is equal to or exceeds three hours if the flight is longer than 3,500 kilometers. We do not consider that EC261 Regulation can be applied to a case of a delay to one flight which leads to a missed connection and therefore an overall 4 hours plus delay in reaching the next stop over, since:
1. Advocate General Bot and the European Court of Justice (ECJ) clearly envisaged the delay of a single flight and not flights;
2. The final destination referred to in the Regulation, must therefore mean the destination of the flight concerned; and
3. The Regulation does not extend to non EU carriers operating flights from a non EU member state to another non EU member state.
The actual arrival time of flight, EK150 of 10 August, from Amsterdam to Dubai was at 0735 hours (11 August, local time in Dubai), which was 1 hour and 5 minutes late. The onward flight EK945 on 11 August operated from Dubai to Basra, which are both non-EU stations.
For the reasons set out above, and especially as a non EU carrier, regrettably, we are unable to meet with your request to offer as per EC regulations.
As flight EK150 arrived into Dubai at 0735 hours on 11 August, therefore you missed your onward flight EK945 which was scheduled to depart at 0755 hours on 11 August. Our Reservations Team re-booked you on the next available flight to Basra on EK947 on 12 August. I note, in an effort to minimise the inconvenience you were provided with complimentary hotel accommodation at the airline's expense during your transit in Dubai.
Emirates wishes to inform you that it is always our intention to comply with legislation in all of the jurisdictions in which we operate. However, in specific response to your demand for compensation, we refer you to the actual text of the Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
In Article 6, paragraph 1, section (c), you will note that the requirement for compensation is applicable when the arrival delay is equal to or exceeds three hours if the flight is longer than 3,500 kilometers. We do not consider that EC261 Regulation can be applied to a case of a delay to one flight which leads to a missed connection and therefore an overall 4 hours plus delay in reaching the next stop over, since:
1. Advocate General Bot and the European Court of Justice (ECJ) clearly envisaged the delay of a single flight and not flights;
2. The final destination referred to in the Regulation, must therefore mean the destination of the flight concerned; and
3. The Regulation does not extend to non EU carriers operating flights from a non EU member state to another non EU member state.
The actual arrival time of flight, EK150 of 10 August, from Amsterdam to Dubai was at 0735 hours (11 August, local time in Dubai), which was 1 hour and 5 minutes late. The onward flight EK945 on 11 August operated from Dubai to Basra, which are both non-EU stations.
For the reasons set out above, and especially as a non EU carrier, regrettably, we are unable to meet with your request to offer as per EC regulations.
Thank you for your reply to my message. I have read your response, however, and must point out that you are incorrect.
Despite your personal interpretation of the EC261 regulation, the European Court of Justice has taken the opposite view. The specific quote from their ruling states:
"Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that compensation is payable, on the basis of that article, to a passenger on directly connecting flights who has been delayed at departure for a period below the limits specified in Article 6 of that regulation, but has arrived at the final destination at least three hours later than the scheduled arrival time, given that the compensation in question is not conditional upon there having been a delay at departure and, thus, upon the conditions set out in Article 6 having been met."
The full text of the decision is available here: http://eur-lex.europa.eu/LexUriServ/...CJ0011:EN:HTML
The court was very clear in their statement that compensation applies to time of arrival at final destination when on a single connecting ticket. In addition, this regulation applies to any airline operating a flight that departs from an EU airport, so the fact that Emirates is not based in the EU has no relevance.
I have no doubt that Emirates is aware of this case, and am disappointed at your attempt to mislead.
Please let me know what details you require in order to process this compensation.
Despite your personal interpretation of the EC261 regulation, the European Court of Justice has taken the opposite view. The specific quote from their ruling states:
"Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that compensation is payable, on the basis of that article, to a passenger on directly connecting flights who has been delayed at departure for a period below the limits specified in Article 6 of that regulation, but has arrived at the final destination at least three hours later than the scheduled arrival time, given that the compensation in question is not conditional upon there having been a delay at departure and, thus, upon the conditions set out in Article 6 having been met."
The full text of the decision is available here: http://eur-lex.europa.eu/LexUriServ/...CJ0011:EN:HTML
The court was very clear in their statement that compensation applies to time of arrival at final destination when on a single connecting ticket. In addition, this regulation applies to any airline operating a flight that departs from an EU airport, so the fact that Emirates is not based in the EU has no relevance.
I have no doubt that Emirates is aware of this case, and am disappointed at your attempt to mislead.
Please let me know what details you require in order to process this compensation.
Aug 29, 2017 | 5:04 am
#2
Ambassador: Emirates Airlines
Join Date: Sep 2004
Location: Manchester, UK
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I think you'll be needing to take this to court. EK seem to ignore EC261 wherever possible. Not sure what the process is in The Netherlands, but the UK has a small claims court which I guess there must be an equivalent of.
Be prepared to fight....
Be prepared to fight....
Aug 29, 2017 | 5:18 am
#3
Join Date: Nov 2013
Posts: 5,482
EK are currently litigating this exact issue in the UK - I would expect the UK courts to ask the ECJ for a decision, because their position in the Air France - Folkerts case is that the flight(s) that was in the scope of the regulations (i.e. the Bremen-Paris-Sao Paolo), the compensation should have been based on the final destination of the ticket (Asuncion).
That, they say, is different, to the situation you have, which is that the flight of the scope in the regulations would not attract any compensation in the first place as the delay was only 65 minutes. The onward connecting flight is not in the scope of the regulations either, therefore there is no compensation due.
They will rely on Emirates v Schenkel to maintain the position that the regulation must be applied to each flight in a booking individually.
Prepare to litigate if they deny at first rejection.
That, they say, is different, to the situation you have, which is that the flight of the scope in the regulations would not attract any compensation in the first place as the delay was only 65 minutes. The onward connecting flight is not in the scope of the regulations either, therefore there is no compensation due.
They will rely on Emirates v Schenkel to maintain the position that the regulation must be applied to each flight in a booking individually.
Prepare to litigate if they deny at first rejection.
Aug 29, 2017 | 6:53 am
#4
Original Poster
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Posts: 59
Thanks for the input. I note that the Emirates v Schenkel case is rather different in that his flight departed from Manila, and he was trying to claim it was all part of the original flight out of Dusseldorf. My flight was outbound from Amsterdam, so should be covered by the need to be "departing from an EU airport".
Aug 29, 2017 | 6:56 am
#5
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Thanks for the input. I note that the Emirates v Schenkel case is rather different in that his flight departed from Manila, and he was trying to claim it was all part of the original flight out of Dusseldorf. My flight was outbound from Amsterdam, so should be covered by the need to be "departing from an EU airport".
Aug 29, 2017 | 7:09 am
#6
Join Date: May 2010
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Do not count on the Dutch Enforcement Body to be of any help. Going to court yourself is not practical either. If they continue to reject your (IMO valid) claim, consider using one of the commercial claiming bureaus. I hope this will be taken to court to clarify this kind of situation.
Aug 29, 2017 | 7:15 am
#7
Join Date: Nov 2013
Posts: 5,482
Thanks for the input. I note that the Emirates v Schenkel case is rather different in that his flight departed from Manila, and he was trying to claim it was all part of the original flight out of Dusseldorf. My flight was outbound from Amsterdam, so should be covered by the need to be "departing from an EU airport".
In the case of Folkerts, the initial sector BRE-CDG was already eligible for compensation - the question for the court was the determination of the amount, was the distance to be based on CDG, or GRU or ASU.
In your case, EK will argue that the first sector does not even apply for compensation purposes and thus the question of what the final amount is, is irrelevant.
This line of reasoning was accepted by the German Federal Court in X ZR 12/12 and X ZR 14/12
http://juris.bundesgerichtshof.de/cg...&pos=3&anz=192
One pax was booked on WY FRA-MCT-BKK round trip.
The same situation happened to him as did to you - delay at final destination, BKK, but first flight operated normally FRA-MCT (i.e. no compensation payable).
The court used the reasoning of Schenkel above to interpret the regulation as having to be interpreted for each individual segment separately and no compensation due.
We await an ECJ clarification.
Aug 29, 2017 | 7:23 am
#9
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Don't get into email legal arguments with staff. It is not worth the band-width it takes to transmit the email. EK has made a decision on this fact pattern and is not going to change based on anything you say as it is well aware of the countervailing argument and rejects it.
Don't bother with any of the NEB's. In theory, if one issues a favorable ruling, it is hoped that business will abide by it, but that is not the case with EC 261/2004 and a legal argument where there are no disputed facts.
In your situation, the sole legal question is that in a situation where the Regulation only applies because this was a departure from the EU and not because the operating carrier was an EU carrier, whether the fact that the delayed arrival at the first destination when it is below the threshold for compensation, e.g., below 3 hours, can be resurrected by virtue of the fact that the delay at the final ticketed destination exceeds 3 hours (exceeds 4 hours in this case).
This is entirely different from the clearcut case where there is a Type 1 flight followed by a Type 3 flight and the delay at the first destination exceeds the time limit for Type 1 and delay at the final ticketed destination exceeds Type 3. In this case, the Regulation applies and it is Type 3 compensation. Thus, AMS-LON-NYC delayed by 2 hours on AMS-LON causing a delay at NYC of 5 hours is due EUR 600, but the same route delayed by 45 minutes at LON and 5 hours at NYC receives nothing.
Your options are to forget about it, to litigate it or to hold off until the matter is decided by either the ECJ or Dutch courts in favor of your fact pattern and then file a claim.
Don't bother with any of the NEB's. In theory, if one issues a favorable ruling, it is hoped that business will abide by it, but that is not the case with EC 261/2004 and a legal argument where there are no disputed facts.
In your situation, the sole legal question is that in a situation where the Regulation only applies because this was a departure from the EU and not because the operating carrier was an EU carrier, whether the fact that the delayed arrival at the first destination when it is below the threshold for compensation, e.g., below 3 hours, can be resurrected by virtue of the fact that the delay at the final ticketed destination exceeds 3 hours (exceeds 4 hours in this case).
This is entirely different from the clearcut case where there is a Type 1 flight followed by a Type 3 flight and the delay at the first destination exceeds the time limit for Type 1 and delay at the final ticketed destination exceeds Type 3. In this case, the Regulation applies and it is Type 3 compensation. Thus, AMS-LON-NYC delayed by 2 hours on AMS-LON causing a delay at NYC of 5 hours is due EUR 600, but the same route delayed by 45 minutes at LON and 5 hours at NYC receives nothing.
Your options are to forget about it, to litigate it or to hold off until the matter is decided by either the ECJ or Dutch courts in favor of your fact pattern and then file a claim.
Aug 29, 2017 | 12:29 pm
#10
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Although this is a NL departure and not sure how this case holds as a precedent for NL, but this particular situation is at the UK Court of Appeal at the moment ( Gahan vs Emirates and Buckley vs Emirates )
The court heard submissions at end of July and is expected to rule fairly soon
Some details at https://gettingthedealthrough.com/ar...2612004-appeal
If Emirates loses this case, it may make a claim easier
The court heard submissions at end of July and is expected to rule fairly soon
Some details at https://gettingthedealthrough.com/ar...2612004-appeal
If Emirates loses this case, it may make a claim easier
Aug 29, 2017 | 1:24 pm
#11
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Although this is a NL departure and not sure how this case holds as a precedent for NL, but this particular situation is at the UK Court of Appeal at the moment ( Gahan vs Emirates and Buckley vs Emirates )
The court heard submissions at end of July and is expected to rule fairly soon
Some details at https://gettingthedealthrough.com/ar...2612004-appeal
If Emirates loses this case, it may make a claim easier
The court heard submissions at end of July and is expected to rule fairly soon
Some details at https://gettingthedealthrough.com/ar...2612004-appeal
If Emirates loses this case, it may make a claim easier
1. xEU flight is delayed causing a delay at final ticketed destination of well over 4 hours.
2. But, xEU flight not delayed sufficiently to result in triggering the Regulation in the first place.
Aug 29, 2017 | 3:25 pm
#12
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I have two flight delay compensations and one baggage delay compensation still pending. All cases were validated by EK up to the point where they asked for my bank account data. That's 600/700 EUR if I recall well.
Several fellow travelers met on board are in similar situations. All paid F and Plat.
So, very good luck to you.
Several fellow travelers met on board are in similar situations. All paid F and Plat.
So, very good luck to you.
Sep 8, 2017 | 1:35 pm
#13
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Sep 8, 2017 | 2:37 pm
#14
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If they won't take your claim and fully pursue it, that is a good barometer to use in determining whether it is worth your own time.
Sep 8, 2017 | 4:06 pm
#15
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Wouldn't have thought that it would do much more than either take the claim on ( and be successful or fail ) or decide not to
Delay compensation would be EUR600 but fpr baggage delay , it is down to actual loss incurred up to a maximum of XDR1131