Swiss denies compensation

Old Dec 19, 16, 3:10 pm
  #1  
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Swiss denies compensation

Hello,
long story short: which compensation claim service has recent success story with Swiss? I've tried refund.me which is unwilling to help:

"we are sorry to report that we cannot accept your case. We know from experience that Swiss Airlines ignores EU Regulation 261/2004 and refuses all demands for compensation. Unfortunately there is no chance to win your case in court in a timely manner in this jurisdiction."


Details:
LX41 on 15.05.2016 LAX-ZRH was delayed due to door failure of the plane and missed connecting flight to LUX. We were rebooked the day after.
Swiss denied compensation since, according to them ,
"Your flight irregularity was caused by a passenger door malfunction. Under the National Enforcement Bodies
Draft List of Extraordinary Circumstances (12 th April 2013) is by definition an Unexpected Flight Safety
Shortcoming."


After further complaints, they sent me a 150 EUR voucher for flying with them (quite useless unless I want to visit Switzerland).

Complaint to Swiss authority also useless,

The Federal Office of Civil Aviation (FOCA) has received your report. On the basis of this report, FOCA opened an administrative penal procedure against the airline involved.

Based on the investigations of the facts of the case in the context of the penal procedure, FOCA decided to close the administrative penal proceedings in your case.

FOCA cannot order the airline to issue payments to the passengers but can only impose fines if applicable.


which sounded unclear to me, and after asking for further info,

Your case ((flight 41 from LAX via ZRH to LUX operated by Swiss) was thoroughly evaluated. FOCA can only impose fines in cases we can prove beyond doubt that the airline infringed terms of the regulation (EC) No 261/2004.

The evaluation within the administrative penal procedure is based on the text of Regulation (EC) No. 261/2004. The legal text does not state the right of compensation in case of delays and therefore FOCA is not in the position to fine the airline. Due to this fact and because there was no clear evidence of the airline having infringed any other provision of before mentioned regulation we have closed the administrative penal proceedings.

We would like to inform you once more that our decision, which was taken within the administrative penal procedure according to Swiss law, shall not necessarily influence any Swiss or foreign civil procedure. The decision of FOCA is not binding for civil courts but the civil courts take their decisions based on their own evaluation and on civil rights principles.


We hope these explanations are useful for you. Unfortunately, we cannot give you any further information due the fact that the passenger is not a party in the administrative penal procedure against the airline.



It seems to me that they exploit the fact that - being a extra EU country - regulation is difficult to enforce and also their FOCA is reminding me that canis canem non est

gigi82 is offline  
Old Dec 22, 16, 8:19 am
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Switzerland sort of accepts EU261 itself, but not the European court rulings that interpret in a way to give you right to claim compensation due to delays. Since original EU261 only requires "care" in case of delays, you are out of luck.
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Old Dec 22, 16, 9:26 am
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Would they not be subject to EC interpretation in this case though, because the OP's final destination was LUX, so EU?
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Old Dec 22, 16, 9:52 am
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It is a mischaracterization to suggest that LX "ignores" EC 261/2004. Rather, Switzerland, which is not a Member State, has chosen to adopt EC 261/2004.

The nub of this one is that EC 261/2004 only requires compensation when a flight is cancelled. Your flight was not cancelled. It was delayed. While binding precedent in EU courts clearly define delays of the "day after" (which I take to be 24 hours) as a cancellation, Swiss courts are not bound by the decisions of the EU courts.

In addition, while a technical fault such as a broken passenger door would almost certainly not be an "extraordinary circumstance" under EU court precedent, that is also not binding on Swiss courts.

Unlike the easy pickings that the EU courts have made EC 261/2004 for the bottom feeder claims services, you are going to have to prove your case in a Swiss court and demonstrate that the length of the delay made it a cancellation and then meet LXs proof that the door fault was extraordinarily (which will most likely be that the door was properly inspected and maintained and within its life cycle).

You will face EC 261/2004 as it was originally enacted, not as judges have rewritten it.

All of the above is not to the detriment of your claim for duty of care which applies under all circumstances. I take it that LX did supply a hotel and food.

As to the later question regarding destination, that is irrelevant. EC 261/2004 applies to EU carriers and to flights departing the EU. It does not apply to flights destined for the EU. It only applies here because Switzerland has adopted the Regulation.

One value the claims services do bring to the table is that as they only get paid if they win, they are not likely yo bring cases they are not likely to win.
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Last edited by Often1; Dec 22, 16 at 11:02 am
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Old Dec 22, 16, 9:32 pm
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Originally Posted by Dlougach View Post
Switzerland sort of accepts EU261 itself, but not the European court rulings that interpret in a way to give you right to claim compensation due to delays. Since original EU261 only requires "care" in case of delays, you are out of luck.
This isn't entirely true: ECJ ruling from before 1. December 2006 could *in theory* be considered binding (that is the date when CH joined the EU261 scheme). I don't think there's any definitive court confirmation of this (yet?).

Moreover some Swiss legal experts have pointed out that the Federal courts generally do follow ruling of the ECJ, and they also recommend that lower courts do the same. (Read e.g. quotations from Mr. Cottier in http://www.tagesanzeiger.ch/wirtscha...story/19824655 )

In your place I'd consider trying the Friedensrichter in Zurich, but that's only viable if you're local. (Which is something I'm planning myself, but not for another few months since I'm currently too busy.)

Last edited by televisor; Dec 22, 16 at 9:42 pm
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Old Dec 23, 16, 12:31 am
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Originally Posted by Wtravel View Post
Would they not be subject to EC interpretation in this case though, because the OP's final destination was LUX, so EU?
That's what came up in my mind too. If you're a local of LUX, getting a lawyer there and have him handle the case should be an easy way around LX "feeling" that EU261 doesn't apply to them..

Unfortunately otherwise, it's fairly easy to get EU261 even from airlines like QR yourself (without a lawyer or EU261 claim agency), while for a "European" airline like LX, good luck..
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Old Dec 23, 16, 7:23 pm
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Originally Posted by YuropFlyer View Post
That's what came up in my mind too. If you're a local of LUX, getting a lawyer there and have him handle the case should be an easy way around LX "feeling" that EU261 doesn't apply to them..

Unfortunately otherwise, it's fairly easy to get EU261 even from airlines like QR yourself (without a lawyer or EU261 claim agency), while for a "European" airline like LX, good luck..
Good luck with that. Yes, LX is a "European airline" but it is not a "community carrier." EC 261/2004 only applies to OP's ticket because Switzerland, which is not a Member State of the EU, has chosen to adopt EC 261/2004.

The claims agency won't take the case because it knows that winning will require a lengthy and complex legal battle which LX has every reason to fight.

If OP chooses to litigate this, will be interesting to see if the Swiss judiciary are able to find a delayed flight to be cancelled.
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Old Dec 25, 16, 1:19 pm
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I am resident in Lux, cost of a local lawyer will exceed the value of compensation. My wife is working at ECJ and also said to give up (quite sad, her colleagues were luckier in receiving compensation if claim is sent from the court email address rather than personal...)

Originally Posted by YuropFlyer View Post
That's what came up in my mind too. If you're a local of LUX, getting a lawyer there and have him handle the case should be an easy way around LX "feeling" that EU261 doesn't apply to them..

Unfortunately otherwise, it's fairly easy to get EU261 even from airlines like QR yourself (without a lawyer or EU261 claim agency), while for a "European" airline like LX, good luck..

Last edited by gigi82; Dec 25, 16 at 1:31 pm
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Old Dec 28, 16, 7:27 pm
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Originally Posted by gigi82 View Post
I am resident in Lux, cost of a local lawyer will exceed the value of compensation. My wife is working at ECJ and also said to give up..
Why not take LX to LCC? They sell tickets in the EU and Switzerland bows to 261 ... they should accept it.
Originally Posted by Often1 View Post
It is a mischaracterization to suggest that LX "ignores" EC 261/2004..
And yet that is exactly what they are doing. After all EU courts are the arbiter supreme on what comprises EC261.
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Old Dec 29, 16, 12:57 am
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Have you tried Flightright? They handled 6 cases for me so far with a 100% success rate. In 4 cases they had to sue the sue the airline and it took about 2 years from filing the claim to finally getting compensation but I really did not mind. No risk, fair and transparent cost structure and no hassles. I never had to deal with LX though.
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Old Jan 1, 17, 9:45 am
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It just shows how useless these claim agencies are.
There only accept certain cases (no room for interpretation for extraordinary circumstances). Moreover, they accept only certain jurisdictions. Some will sue an airline only in a certain country, because their contract lawyers cover only this. If you would have flown LAX-ZRH-HAM, a German court could have been involved (as HAM is the final destination). Lawsuits in German courts are cheap and efficient (relatively speaking).

A German court most likely would have found a door malfunction on an aging Airbus A340 as NOT extraordinary.
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Old Jan 12, 17, 5:53 am
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Ok, it's been 2 years now, but ....
http://www.flyertalk.com/forum/swiss...not-vaild.html
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Old Jan 12, 17, 6:32 am
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Originally Posted by weero View Post
Why not take LX to LCC? They sell tickets in the EU and Switzerland bows to 261 ... they should accept it.

And yet that is exactly what they are doing. After all EU courts are the arbiter supreme on what comprises EC261.
Your assessment would be correct if the words, "for Member States" were appended. The ECJ is not the high court of Switzerland as that republic has chosen not to subjugate its sovereignty to others.

Certainly Swiss courts may choose to look to how others interpret laws, but Switzerland is far from bound by the ECJ. That is the essence of not having joined the EU.

As it stands EC 261/2004 for purposes of Swiss enforcement means what it says, not what a judge in Germany, Luxemmbourg or elsewhere in the EU thinks those who wrote it meant to say but did not.

LX does not ignore anything and the experience of those who report that they fail in their claims when they pursue them speaks volumes.

The bottom feeder claims services are not useless as some suggest. They are like a wind sock at an airfield. They only make money when they win. They do not take cases they do not believe they can win. While some here are prepared to tilt at windmills and view EC 261/2004 as a blood sport, those with other interests in life, see the fact that a service which will not undertake a contingency as a sign that the matter is not likely winnable. I stress "likely" rather than "futile".
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Old Jan 12, 17, 6:58 am
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Fortunately there are proposals to make the delay rules explicit in EU261, unfortunately I have no idea how that's progressing and if/when CH would update themselves to follow any changed rules:
http://europa.eu/rapid/press-release_MEMO-13-203_en.htm
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Old Jan 13, 17, 6:53 am
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You can consult a lawyer who will be able to tell you the exact details regarding the entire claim procedure and success rate. My friend consulted a lawyer based over here and he was really helpful.
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