Good evening,
In this case, the airline is not required to pay compensation since it's the airports in Brussels and Charleroi that will be closed due to a strike by airport staff. No takeoffs or landings will be allowed on October 14.
Hello,
Error: An airline is only exempt from compensation under TWO CUMULATIVE conditions:
1° Proving the issue is due to "extraordinary circumstances";
2° Proving they took "all reasonable measures."
In the event of a canceled flight, the airline is REQUIRED to offer you, simultaneously with the cancellation, a re-routing flight at no additional cost, "under comparable transport conditions and as soon as possible."
In this case, if the airline offers re-routing on D+2 or D+3 (or worse), while there was a possible re-routing with an available seat (mandatory proof), even with ANOTHER airline, on D+1, compensation is due.
Indeed, re-routing must be done "as soon as possible." If they offer re-routing the same day, accept it. However, if they offer a re-routing flight several days later, while a same-day re-routing was possible, you can proceed with purchasing the ticket. You can then claim reimbursement based on the elements described below. Be careful: the court will assess the "as soon as possible" aspect. If the time difference between the re-routing offered by the airline and the one you purchased is too small, the court may deny reimbursement.
The argument to make is as follows:
Article 5, paragraph 1, of Regulation 261/2004 of the European Parliament and Council (hereinafter "the Regulation") states:
"In the event of cancellation of a flight, the passengers concerned shall be offered assistance by the operating air carrier in accordance with Article 8."
Article 8, paragraph 1, of the same regulation states:
"When reference is made to this Article, passengers shall be offered the choice between:
– reimbursement of the ticket within 7 days in accordance with the methods referred to in Article 7(3) [...]
– re-routing to their final destination under comparable transport conditions and as soon as possible, or
– re-routing to their final destination under comparable transport conditions at a later date at their convenience [...]".
The "Commission Communication" C/2024/5687, published in the Official Journal of the European Union on 25/09/2024 (hereinafter "Commission Communication"), whose purpose is to (I quote) "clarify a number of provisions contained in the Regulation, particularly in light of the Court's case law, so that current rules can be applied more effectively and consistently", specifies in its Article 4.2:
– 1st paragraph:
"Article 8(1) of Regulation (EC) No 261/2004 imposes on air carriers the obligation to offer passengers a triple choice among the following [...]:"
and lists the same three options as Article 8(1) of the Regulation.
The same Article 4.2 expressly provides for re-routing by another air carrier, or even by another mode of transport:
"re-routing must be offered at no additional cost to the passenger, even if passengers are re-routed by another air carrier or by a different mode of transport, or in a higher class, or at a higher fare than that paid for the initial service [...]", which is merely an application of Article 8 of the Regulation.
and:
"The air carrier must offer simultaneously the choice between reimbursement or re-routing." Again, this is merely an application of Article 8 of the Regulation.
Note: A choice made by the passenger is final. The passenger who claims reimbursement for the canceled flight can no longer change their mind and request re-routing or reimbursement for a re-routing. They also cannot claim reimbursement for expenses incurred while waiting for a re-routing flight.
Airlines are so reluctant to provide these TWO proofs that, apart from very rare exceptions, this will almost always be the case.
Be careful not to misinterpret this ruling! It applies:
– to flight cancellations by the airline;
– and missed connections during layovers;
having resulted in re-routing that caused the passenger to arrive at their final destination the day after the scheduled date when a same-day re-routing with another airline was possible.
Below are extensive excerpts from this ruling:
57 As recalled in point 36 of this judgment, in the event of an extraordinary circumstance, the operating air carrier is released from its obligation to compensate under Article 5(1)(c) and Article 7(1) of Regulation No 261/2004 only if it can prove that it adopted measures appropriate to the situation by implementing all the personnel or material means and financial resources at its disposal to avoid that circumstance leading to the cancellation or significant delay of the flight in question, without it being required to make unbearable sacrifices given the capacities of its enterprise at the relevant time.
58 It follows, in accordance with the objective of ensuring a high level of passenger protection referred to in recital 1 of Regulation No 261/2004 and the requirement for reasonable, satisfactory, and prompt re-routing of passengers affected by a cancellation or significant flight delay, as referred to in recitals 12 and 13 and Article 8(1) of that regulation, that in the event of an extraordinary circumstance, the air carrier intending to be exempted from its obligation to compensate passengers under Article 5(1)(c) and Article 7 of that regulation by adopting the reasonable measures referred to in the previous point cannot, in principle, limit itself to offering the affected passengers re-routing to their final destination by the next flight operated by itself and arriving at the destination the day after the initially scheduled arrival date.
59 Indeed, the diligence required of this air carrier to allow it to be exempted from its obligation to compensate assumes that it implements all means at its disposal to ensure reasonable, satisfactory, and prompt re-routing, including the search for other direct or indirect flights operated possibly by other air carriers, whether or not belonging to the same airline alliance, arriving at an earlier time than the next flight of the air carrier concerned.
60 It is therefore only if there is no available seat on another direct or indirect flight allowing the passenger concerned to reach their final destination at an earlier time than the next flight of the air carrier concerned or if such re-routing constitutes an unbearable sacrifice for that air carrier given the capacities of its enterprise at the relevant time that the said air carrier must be considered to have implemented all the means at its disposal by re-routing the passenger in question on the next flight operated by itself.
61 Therefore, it is necessary to answer the third question that Article 5(3) of Regulation No 261/2004, read in light of recital 14 thereof, must be interpreted as meaning that the fact that an air carrier re-routes a passenger, on the grounds that the aircraft transporting them was affected by an extraordinary circumstance, by means of a flight operated by itself and causing the passenger to arrive the day after the initially scheduled date does not constitute a "reasonable measure" releasing that carrier from its obligation to compensate provided for in Article 5(1)(c) and Article 7(1) of that regulation, unless there was no other possibility of direct or indirect re-routing by a flight operated by itself or any other air carrier arriving at an earlier time than the next flight of the air carrier concerned or that the implementation of such re-routing would have constituted an unbearable sacrifice for the latter given the capacities of its enterprise at the relevant time, which it is for the referring court to assess.
Point 3 of the "operative part" of the judgment is as follows:
3) Article 5(3) of Regulation No 261/2004, read in light of recital 14 thereof, must be interpreted as meaning that the fact that an air carrier re-routes a passenger, on the grounds that the aircraft transporting them was affected by an extraordinary circumstance, by means of a flight operated by itself and causing the passenger to arrive the day after the initially scheduled date does not constitute a "reasonable measure" releasing that carrier from its obligation to compensate provided for in Article 5(1)(c) and Article 7(1) of that regulation, unless there was no other possibility of direct or indirect re-routing by a flight operated by itself or any other air carrier arriving at an earlier time than the next flight of the air carrier concerned or that the implementation of such re-routing would have constituted an unbearable sacrifice for the latter given the capacities of its enterprise at the relevant time, which it is for the referring court to assess."
It is therefore clear that re-routing the next day (and even more so, later) does not constitute a "reasonable measure" as long as another re-routing, even operated by another airline, even not part of the same alliance, was available.
You can therefore claim reimbursement for the ticket purchased after your flight was canceled (not for a delayed flight), and compensation (for a canceled or delayed flight). However, you will only succeed subject to the court's assessment of the concepts of:
– "as soon as possible"
– "reasonable measures"
and
– "unbearable sacrifice."
But be aware, you will only succeed if you can PROVE that there was at least one available seat (or more if you are traveling with others) on the re-routing flight you found yourself.
You can only prove this in two ways:
– You purchased a ticket for this re-routing flight
or
– You took screenshots of a booking process, even if you stopped just before payment.
Regarding the right to flat-rate compensation, it should be recalled that the airline is exempt from compensating the passenger if it can prove that the cancellation (less than 14 days before) or the delay is due to (I quote) "extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken" (Article 5(3) of Regulation 261/2004 of the European Parliament and Council).
There are therefore TWO cumulative conditions:
– Proving the extraordinary circumstances
– Proving that all reasonable measures were taken
As stated in the judgment of the Court of Justice of the European Union of June 11, 2020, in case C-74/19, point 3 of its "operative part" already mentioned above, you can claim flat-rate compensation, even in the event of proven extraordinary circumstances, if you can prove (see above) that you were only offered re-routing the next day (or even later) when a same-day re-routing was possible, even with another airline, even from a different alliance.
Moreover, in the same judgment, points 1 and 2 of the "operative part" (already cited above) recognize the "extraordinary circumstances" alleged by the airline,
But, since a same-day re-routing via another airline's flight was available instead of the re-routing offered the next day, the CJEU affirms the passenger's right to compensation in point 3 (already cited above) of the operative part of the same judgment, subject to the court's assessment (I quote) "that the implementation of such re-routing would not have constituted an unbearable sacrifice for the latter given the capacities of its enterprise at the relevant time, which it is for the referring court to assess."
Consequently, even if the airline provides proof of "extraordinary circumstances," it may be ordered to compensate the passenger if it only re-routed them the next day when a same-day re-routing was possible.
But expect fierce resistance, possibly leading to court.
However, the "European Small Claims Procedure" (if the airline's headquarters is in a different EU member state than your residence) is particularly simple and free. If not, you will have to use the French procedure (it's the same court anyway).
Example of procedure:
https://retardimportantavion.wordpress.com/2024/01/12/reacheminement-catastrophique-droit-indemnisation-meme-circonstances-extraordinaires-2/And check here:
https://retardimportantavion.wordpress.com/2021/03/28/modele-lettre-et-procedure-pour-annulation-vol-par-compagnie-aerienne/or here:
https://retardimportantavion.wordpress.com/2021/03/01/modele-de-lettre-et-procedure-pour-retard-important-3-heures-ou-plus/Documentation:
Judgment of the Court of Justice of the European Union of June 11, 2020, in case C-74/19:
https://curia.europa.eu/juris/document/document.jsf?text=&docid=227302&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1701612Regulation 261/2004 of the European Parliament and Council:
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX%3A32004R0261%3AFR%3AHTMLCommission Communication C/2024/5687 published in the Official Journal of the European Union on September 25, 2024:
https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=OJ:C_202405687Best regards
