Flight Delay and Cancellation Compensation

Flight cancelled or delayed? New 2005 rules on compensation and assistance are good news for passengers

Many people have experienced the frustration and inconvenience caused when a flight is delayed, cancelled, or through overbooking, they have been denied a seat. To combat this, on 17 February 2005, the EU brought into force Regulation (EC) No 261/2004 (OJ L046, 17/2/2004, 1) which establishes a directly effective non-derogable set of rules providing compensation, assistance and re-imbursement to passengers where these circumstances occur. The new regime represents a significant step forward for passenger protection, superseding the previous, more limited protection under Regulation (EEC) No 295/91 (OJ L038, 8/2/1991, 5) and improving upon the Montreal Convention 1999.

Which flights are covered?

The new Regulation covers passengers on flights departing from airports within the EU or arriving in the EU from elsewhere if the air carrier is a community carrier, unless the passenger received assistance, benefits or compensation before departure. The passenger must have a confirmed reservation and have presented himself at check-in (unless the flight is cancelled). While those on frequent flyer tickets are covered, those travelling free of charge or on deals unavailable to the public are not. Package holidays are not covered unless the flight is cancelled.

Type of flight

Whether it is cancellation, delay or overbooking, the extent of a passenger’s rights depends upon the category the flight falls into. All flights of 1,500km or less are category (a). Category (b) covers all flights inside the EU of more than 1,500km and all other flights between 1,500km and 3,000km. All flights not falling within (a) or (b), come within category (c).

Denied boarding due to overbooking

The new rules require that where a carrier reasonably expects to deny boarding to some of its passengers, it first has to call for volunteers willing to surrender their reservations. Anyone willing to do so may exchange their reservation for whatever benefits they can agree with the carrier, on top of the assistance set out below.

Should insufficient volunteers come forward, the carrier may begin refusing to board some passengers. Those unfortunate enough to be ‘bumped off’ a flight involuntarily become entitled to:

(1) Compensation

Those who hoped to be on a short flight (category (a) flights) get €250 (£180), those wanting to go a bit further (category (b) flights) get €400 (£285), while those in category (c) get €600 (£430). However, these amounts are halved if the carrier is able to fly the passenger to his final destination within two hours (category (a)), three hours (category (b)) or four hours (category (c)) of the scheduled arrival time.

(2) Right to reimbursement or re-routing

Passengers must be offered the choice between: (i) reimbursement of the full cost of the ticket for any part of the journey not made or which no longer serves any purpose, and if relevant, a flight to their starting point at the earliest opportunity; or (ii) re-routing to the final destination at the earliest opportunity, or at a later date at the passenger’s convenience (subject to availability).

(3) Right to assistance/care

Those denied boarding (whether voluntarily or not) are entitled to certain types of free assistance, depending on what is reasonable and necessary. While waiting, passengers are entitled to reasonable meals and refreshments and, where an overnight stay becomes necessary, hotel accommodation with any necessary transportation to and from the hotel. Passengers also get two free telephone calls, emails or similar electronic communication.

Delayed flight

Where a flight is delayed, the rights of the passenger are more limited. Improving on the Montreal Convention however, the new rules are clear on what amounts to sufficient delay. Once the carrier reasonably expects the delay to reach two hours (category (a)), three hours (category (b)), or four hours (category (c), the passenger is entitled to assistance. As with denied boarding, such assistance is to maintain passengers while they wait, ie, with reasonable meals, refreshments, two free telephone calls or emails, as well as hotel accommodation where the delay is at least a day.

An additional right is triggered where delay reaches five hours; at this point, passengers are given the option of reimbursement of part or all of the ticket cost, and where necessary, a return flight. Passengers do not however have a right to compensation or re-routing to their final destination.

Flight cancellation

Previously this area was governed simply by the common law. Now, where a flight is cancelled, the Regulations provide passengers with:

(1) a choice between reimbursement of the price of the ticket, and if relevant, a return flight back to their starting point, or re-routing to their final destination.

(2) reasonable meals, refreshments, and, where re-routing means a delay of at least a day, hotel accommodation with necessary transportation.

(3) compensation. The amounts given are the same as those given to passengers denied boarding (without the 50 per cent reduction), unless sufficient warning was given of the cancellation and re- routing options were offered to the passenger. However, there is no entitlement to compensation where the carrier can show that the cancellation was caused by "extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken". Helpfully, illustrations are suggested in the Regulation recital and include political instability, meteorological conditions incompatible with the flight concerned, security risks or unexpected flight safety risks.


From a legal perspective, expanding and developing the previous denied boarding protection into flight cancellation and delay can only be good for passengers. Influenced by the Montreal Convention 1999, this Regulation introduces a relatively clear and straightforward regime of minimum rights and fixed levels of compensation which will undoubtedly help both parties know where they stand and will speed up remedies for passengers. Consequently, there is likely to be less scope for litigation these days. 

Practice points

Any Regulation right to compensation does not prejudice any other entitlement to compensation the passenger may have (eg, for delay under Art 19 of the Montreal Convention 1999), although there will be no double recovery.

A carrier may upgrade a passenger, but only free of charge. If the carrier downgrades the passenger, part of the ticket becomes refundable depending on the category of the flight.

Carriers must display notices at check-in, advising passengers that leaflets setting out their rights are available. 




NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.