Kneppelhout represents both airlines and passengers in aviation claims. Although we never act where there is a conflict of interest, advising both parties enables us to gain a comprehensive understanding of the dynamics involved in these cases. But what are the obstacles that airlines and passengers may encounter when a direct claim to the airline does not lead to the desired outcome? Below, we answer the ten most frequently asked questions.
The ten most frequently asked questions about an aviation claim.
1. When does an aviation claim arise?
An aviation claim arises when a passenger seeks compensation or damages from an airline. This may occur in various situations, such as:
- Flight delay
- Flight cancellation
- Missed connecting flight
2. When is a passenger entitled to compensation?
- If a flight arrives at its final destination with a delay of more than three hours, the passenger may be entitled to compensation.
- In the event of flight cancellation, the passenger may also be entitled to compensation, unless the airline offered an alternative flight in a timely manner that meets specific conditions. For example, if the alternative flight departs no earlier than one hour before the scheduled departure time and arrives less than two hours later than the scheduled arrival time, no compensation is due.
- If a delay of the first flight results in a missed connecting flight and consequently a later arrival at the final destination, this may also give rise to a right to compensation.
- If a passenger is wrongly denied boarding, compensation may be due as well.
3. As an airline, you receive a “claim letter” from a passenger. What should you do?
A claim letter constitutes the pre‑litigation stage prior to formal legal proceedings and is usually sent on behalf of the passenger by a lawyer or authorised representative. At this stage, the airline may still reach a settlement without incurring additional costs, such as bailiff’s fees or court fees. We recommend that airlines immediately submit such letters to their legal department or a lawyer, so that the claim can be assessed on the basis of current case law. A timely response to a claim letter, for example with a settlement proposal following a careful legal assessment, may result in significant cost savings.
4. As a passenger, it has not been possible to reach a solution with the airline. What next?
In that case, we recommend contacting a lawyer specialised in aviation law. Aviation claims require an individual assessment and often align with current case law. Lawyers have up‑to‑date knowledge of judicial decisions and are better able to assess the likelihood of success. In practice, airlines also tend to respond more promptly and substantively to correspondence from law firms, allowing the claim to be addressed more efficiently.
5. As an airline, you receive a writ of summons from the passenger. What should you do?
Once a writ of summons has been issued, formal legal proceedings are pending. This means that additional costs, such as bailiff’s fees and court fees, have already been incurred, making settlement more expensive than merely paying the principal amount. We strongly advise airlines to closely monitor the deadlines set out in the writ and to respond in a timely manner. Engaging a lawyer at this stage is often essential.
6. Where can the most important legal grounds for aviation claims be found?
The primary legal basis for compensation in aviation claims is Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004. This regulation establishes common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellation or long delay of flights. The provisions of this regulation form the core legal grounds on which passengers base their aviation claims. The case law of the Court of Justice of the European Union also plays a crucial role in the interpretation and application of the regulation.
7. I also see the Montreal Convention mentioned. What is the difference between the Montreal Convention and EU Regulation 261/2004?
The Montreal Convention harmonises the rules for international air carriage and governs the liability of airlines for delays, loss or damage to baggage, and personal injury or death of passengers. It applies to international flights between states that are parties to the convention. EU Regulation 261/2004, on the other hand, protects passenger rights within the EU and provides standardised compensation and assistance in cases of denied boarding, cancellation or long delay. The regulation applies to flights departing from the EU or arriving in the EU with an EU carrier.
8. Can the Montreal Convention and EU Regulation 261/2004 apply simultaneously?
Yes. In certain cases, both regimes may apply simultaneously, but they cover different types of compensation. The regulation compensates for inconvenience, while the convention provides compensation for actual damage. Under EU law, airlines may be required to compensate passengers under both regimes, depending on the circumstances.
9. How is the amount of compensation determined?
The amount of compensation in aviation claims is determined on the basis of the flight distance and the duration of the delay, cancellation or denied boarding. This assessment must be made on a case‑by‑case basis.
10. When is an airline not required to pay compensation in the situations described above?
An airline is not obliged to pay compensation if it can prove that the delay or cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Extraordinary circumstances are situations that are not inherent in the normal exercise of the airline’s activity and are beyond its actual control.
The airline must provide convincing evidence that such circumstances caused the delay or cancellation and that all reasonable measures were taken to limit the consequences. Current case law identifies many situations in which airlines are not required to pay compensation.
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