EC261, Need Help Formulating A Response

Discussion in 'United Airlines | MileagePlus' started by EyeOnTheSkies, May 24, 2013.  |  Print Topic

  1. EyeOnTheSkies

    EyeOnTheSkies Silver Member

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    Had a flight take a 7 Hour MX delay MXP-EWR. Plane was a 762, subbed for a 752, which took an extra fuel stop in Gander.

    "We have a gain reviewed your request for cash compensation and found that we complied with all the applicable regulations at the time of your flight.

    I understand that the delay was, at best, very frustrating and truly regret you were disappointed. Please let me explain why cash compensation is not applicable under European Regulation EC261. Because all routine preventative maintenance actions were performed on the aircraft as scheduled, and the extended delay could not have been reasonably predicted or avoided, the event is considered force majeure and exclusionary to the mandatory compensation rules.

    Please know that our legal department carefully reviews each of these matters with our system and techincal operation groups to ensure we are in full compliance with the appropriate legal standards. Although the cause of the irregularity was extraordinary and unable to be avoided, we did what we could to minimize it, and hae nothing furthre to advise at this point.

    Because we do recognize that your flight plans were negatively impacted, as a tangible gesture of our regret, we sent you an electronic travel certificate valid toward a discount on a future United flight." (No compensation was enclosed, nor was it e-mailed)

    What do I do now? Do I continue to beat this dead horse, or file something with European authorities.
     
  2. petrogradian

    petrogradian Silver Member

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    I recall seeing that there are consumer groups in Europe that assist with these sorts of matters, holding carriers feet to the fire (maybe even as a public service, ie at no cost to the traveler). I don't recall specifically, but probably would have been written up in the Wall St Journal or NY Times.

    As to the electronic certificate, have a look in your MileagePlus account - it could have been deposited there directly.
     
  3. Black Cloud
    Original Member

    Black Cloud Gold Member

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    I'm not a lawyer, an expert on international trade law, or even a EU national, but United is correct. You were entitled to refreshments and communication and the right to cancel your journey for a full refund (and transport back to your original destination if relevant). Nothing more.

    The Airline is not obliged to provide cash compensation in the case of extraordinary circumstances which could not have been foreseen even if the airline took all reasonable precautions, according to Article 5, Paragraph 3.

    What should you do now? Go hunt down that e-cert and call it a day. Sorry that's not the answer you wanted to hear, but just trying to save you a lot of time and frustration that will lead to absolutely nowhere.
     
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  4. HaveMilesWillTravel
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    HaveMilesWillTravel Gold Member

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    Except that proper maintenance Is under full control of the airlines and hardly a force majeure (more a force manure, as my iPad spellchecker tried to suggest).

    I am not a lawyer either, but LH paid me 600 Euros without batting an eye when my flight from SFO to FRA was delayed by 7 hours due to the inbound flight being delayed to to MX in FRA.

    It is, however, well known that UA tries to weasel out of their obligations and knows full well that most travelers probably won't take further steps.

    The OP can look at filing a complaint with the Italian authorities responsible for 261 cases. Not sure if they will help collecting the money, but at the very least I would have wanted a complaint against UA on record.

    There are also companies in the EU that file for compensation on your behalf and collect a percentage. Assuming that they don't collect if they are nt successful, I wold consider that route.
     
    MX likes this.
  5. HaveMilesWillTravel
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    HaveMilesWillTravel Gold Member

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    http://en.wikipedia.org/wiki/Regulation_261/2004

    In the case Wallentin-Hermann v Alitalia—Linee Aeree Italiane SpA (Case C-549/07) of 22 December 2008,[2] the European Court of Justice in Luxembourg ruled on the interpretation of Article 5 of the regulation relating to cancellations, specifically paragraph 3 which states:

    An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

    The Court agreed with Wallentin-Hermann that any technical issues during aircraft maintenance don’t constitute "extraordinary circumstances" that would allow airlines to avoid paying passengers compensation for canceled flights. This case therefore closed the loophole which had allowed the airlines to abuse passengers by frivolous interpretation of "technical or extraordinary circumstances"; it further defined the phrase and limited its exploitation. The definition of "technical and/or extraordinary circumstances" by the Court now stands firm and solid: any carrier must prove that the alleged mechanical problem leading to the cancellation was "beyond its actual control", the court affirmed in a statement. In its judgment, the Fourth Chamber of the Court of Justice held:

    Extraordinary circumstances” was not defined in the 2004 Regulation, but the phrase was to be interpreted narrowly since article 5(3) constituted a derogation from the principle, indicated in recitals 1 and 2 of the preamble, of protection of consumers, in as much as cancellation of flights caused serious inconvenience to passengers.
     
  6. SM105

    SM105 Silver Member

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    The Wallentin-Hermann judgement stated that "a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of "extraordinary circumstances" within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control".

    In other words, the burden of proof is now on the carrier to demonstrate that the reason for the technical delay were "not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control". A technical fault at an outstation that requires specialised intervention to resolve (viz. not routine corrective action by line maintenance) could fall under this category if the airline chose to use this defense. Of course, the specific facts of the case would be considered to determine the veracity of that defense but personal experience (as a former airline designated representative for EU261/2004 compliance in UK and Germany) is that most NEBs will accept this defense as prima facie valid unless evidence provided by the passenger implies otherwise.

    It is actually two things that the airline has to demonstrate. One is that the reason for the delay is "not inherent in the normal exercise of the activity of the air carrier concerned" and the second is that the delay is "beyond its actual control".

    In the case of a technical issue at an outstation that requires specialised intervention to resolve, this can be easily demonstrated by provision of the aircraft technical log extract. That the issue occurred at an outstation (as opposed to at a base where spare aircraft might be available) makes it easy to imply that the ensuing delay was beyond the airline's actual control. A delay that has been mitigated by taking the relevant steps (such as making an aircraft swap) could also be defended under this provision.

    The facts in the Wallentin-Hermann case were that an Alitalia aircraft had a tech problem on a certain day, but flights on subsequent days were cancelled as a result of that technical issue. This was ruled to not fall under the scope of the "extraordinary circumstances" exception for that very reason - namely that while Alitalia may not have had control over the underlying technical failure, the decision to cancel Wallentin-Hermann's specific flight was within their control and reasonable options existed for them to mitigate that disruption. The Sturgeon case subsequently extended this protection to passengers who experience lengthy delays, but with the same caveat that the "extraordinary circumstances" defense may apply.

    It is very difficult for a passenger to demonstrate in a non-judicial environment that a claim of "extraordinary circumstances" by the airline is not valid. NEBs do not have authority to disregard an "extraordinary circumstances" defense without specific evidence to the contrary, evidence that a passenger cannot easily obtain from the airline in most circumstances. That does not preclude the passenger from obtaining compensation via "nuisance value" persistence however. It is almost always in the airline's interest to settle the claim, no matter how valid or invalid it may be, rather than engage in a protracted court battle, simply because damages under an EU261/2004 claim are statutorily capped while a court battle can easily result in significantly higher financial liability from court costs alone.
     
  7. EyeOnTheSkies

    EyeOnTheSkies Silver Member

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    I should note that the inbound had the MX delay in Newark before coming over to MXP. A phone rep, who probably shouldn't have said this, specifically said they took the delay in Newark so that they wouldn't run into any issues in MXP, thus having to pay out EC261 compensation.
     
  8. HaveMilesWillTravel
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    HaveMilesWillTravel Gold Member

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    You may consider it nuisance persistance, I consider United's reply nuisance. It's a boilerplate letter. I'd be shocked if they actually had the legal department review the case. See for example

    http://www.flyertalk.com/forum/19518120-post955.html

    Sounds familiar? Googling for some key phrases in the UA reply confirms that the verbiage is old enough that Continental has previous used the exact same words.

    1. EC Reg 261/2004 Article 5.3 reads as follows:

    An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

    I haven't seen any proof in the response the OP received. Just generic boilerplate text copy/pasted into a letter.

    United claims to be the world's leading airline and should be prepared to maintain their aircraft at home and at outstations since by definition half of the international flights depart from an outstation, so they certainly aren't corner cases.
     
  9. HaveMilesWillTravel
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    HaveMilesWillTravel Gold Member

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    Ahh, that outstation in Jersey... ;)
     
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  10. SM105

    SM105 Silver Member

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    I'm not making any statements based on this specific case or UA's seemingly boilerplate response, but rather on my own experiences of successfully defending EU261/2004 claims at NEB level in multiple EU countries. The bottom line is that absent any specific evidence to the contrary provided by the claimant, NEBs continue to prima facie accept an airline's assertion that "extraordinary circumstances" exist. Yes, Wallentin has (rightly IMHO) provided that this is no longer automatically a defense in the case of a mechanically related cancellation (or delay, as extended by Sturgeon) and requires the airline to specifically address the circumstances of the delay. However, the burden of disproving an "extraordinary circumstances" defense, once asserted by the airline under relevant circumstances, continues to effectively fall on the claimant.

    If, regardless of the merits of the claimant's case, the claimant demonstrates a willingness to escalate the case beyond NEB level into local courts, most airlines will simply settle rather than incur the costs of defending the action. Again, I stress that what I am saying here may or may not be relevant to the OP's situation. I don't know the reason for the delay or any other circumstances related to it. These are simply my holistic comments related to similar cases.
     

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