Your flight has been cancelled - what now?

Six years after the European Union introduced rules laying out the obligations of airlines to their passengers, the European Commission is to carry out a survey among air travelers throughout the 27 member states with a view to updating the guidelines. "It is not enough to have written rules - they have to be applied on the ground," said European Transport Commissioner Siim Kallas, announcing the move back in April.

"Compliance with the rules has improved considerably over the last few years," says Isabel Mestre, head of AESA, Spain's air security agency, responsible for applying the EU's air transport directives and guidelines. At the same time, she admits that applying the rules on airlines' obligations to passengers is "a little difficult: there are parts that are open to interpretation, which is why there have been so many cases at the European Court of Justice."

Spain is the EU member state with the most complaints by air passengers

The cost for companies works out at 37,500 euros per cancelled flight

The rules establish the right to compensation of 250 to 600 euros

The airlines want to limit their liability in the case of events beyond their control

The latest ruling by the court, on October 13, reiterated passengers' rights to demand additional damages from airlines if a flight is cancelled and this impacts seriously on their plans, spoiling a honeymoon, or causing the passenger to miss a funeral, for example. The Court explains that the most important aspect of this ruling is that a cancellation now includes flights that leave, but have to return to their airport of departure for any reason, and when even a single passenger is left without transport.

The rules establish the right to compensation of between 250 and 600 euros, depending on the flight time in the case of cancellation or delays of more than three hours, except in extraordinary cases such as strikes or snowstorms. In the event of strikes, such as those to be carried out by Iberia pilots on December 18 and 29, European Union rules do not foresee compensation for missed flights.

The European Court of Justice's most controversial rulings in this regard foresee the right to compensation in cases involving lengthy delays, which to all intents and purposes are the same as a cancellation, and add that the simple fact that an aircraft has suffered technical problems does not mean that the company has no obligation to compensate travelers, unless the fault is due to factors beyond the control of the company - sabotage, for example.

Interpreting just what constitutes extraordinary circumstances and their impact on flights will be the most difficult aspect of revising the regulations. The closure of European airspace for several days in April 2010 due to the volcanic eruption in Iceland, or the closure of Spanish airspace due to the walkout by air traffic controllers this time last year are examples of situations that can generate huge costs for airlines, which, although they are not obliged to compensate passengers, do involve other costs related to accommodation, food and communication.

That said, the rules do not lay down a specific amount for airlines to pay - except in the case of communications, where passengers are entitled to two telephone calls or emails - and mentions only "sufficient food and drink," as well as "necessary" accommodation. There have been many reported cases of airlines providing delayed passengers with just six euros' worth of food and drink in airports, where prices mean such an amount barely buys a cup of coffee, never mind a hot meal.

The airlines want the new regulations to limit their liability in the case of events beyond their control, such as volcanic eruptions or walkouts by air traffic controllers, as well as heavy snow. ACETA, the body that represents the airlines, says: "It is necessary to limit the costs that airlines should assume, and that these costs in dealing with passengers should also be borne by airports and national air authorities, as well as those responsible for safety and security at airports."

The International Air Transport Association (IATA) concurs, saying that the new rules should "level the playing field for all types of transport." It says that other transport sectors have clearly defined rules on their responsibilities to delayed passengers.

But the problem, says the European Consumer Center - which is about to publish a report on the impact of the volcanic eruptions in Iceland in 2010, and which saw a 10-percent increase in passenger complaints in 2009 - is that airlines tend to cite circumstances beyond their control when they are refusing to compensate passengers. One third of passenger complaints in 2010 to the organization were to do with transport. Of that figure, 57 percent were made by air travelers.

In Spain, the EU member state with the most complaints by air passengers, last year AESA handled 6,511 complaints, of which almost half were to do with cancellations (not including the 25,000 related to the collapse of airline Air Comet). Most were the results of flights being cancelled at short notice (less than one week) and with no alternative means of transport provided, and where passengers were offered a measly 250 euros in compensation. The cost for the company, based on an average cost of 150 passengers per flight, works out at something like 37,500 euros per cancelled flight; a figure far higher in most cases than the airline would have made if the flight had taken off. Little wonder that most airlines want to see a standard fine of 5,000 euros imposed for cancelling flights.

Meanwhile, the number of complaints made by passengers each year continues to rise. in the first quarter of this year there were 5,503, most of them related to the closure of Spanish airspace at the end of 2010 prompted by the walkout of air traffic controllers, says Marta Lestau of AESA.

Lestau and Mestre point out that the high number of complaints in Spain doesn't mean that this country breaks the rules more than any other, but simply that Spanish passengers are better informed about their rights and more inclined to exercise them than in other nations. She also points out that there are more complaints about airlines and telecoms companies than there are about the health or education system, suggesting that complaints procedures for the private sector are better established.

But AESA's role ends there, and it is the passenger who must then pursue the complaint against the company in the courts (no lawyer is required if the amount being claimed is less than 2,000 euros).

According to lawyer Felipe Izquierdo, the majority of complaints are dropped at this stage, with few people prepared to take the case before a tribunal. He accuses AESA of "failing to take action" against companies that break EU rules. "Spaniards tend to shout a lot at the check-in desk, but we don't take our complaints through the court system," he says. Izquierdo has set up a website to help passengers in their fight against airlines. "It is not worth anybody's time to hire a lawyer in pursuit of compensation of 250 euros, but if dozens of people made joint claims, things would change," he says.

AESA says that it carries out specific inspections to make sure that EU rules are being followed (386 in 2010), something that Lestau says is new. It will fine airlines that do not follow the rules. Last year it imposed 59 fines, the majority on Ryanair, of which 57 percent were for failing to respect passengers' rights, 8.5 percent were on behalf of passengers requiring wheelchairs, and 5 percent were related to responsibility for accidents.

Lestau says that over the course of the last year, AESA has started to impose fines not only when companies fail to meet inspection standards, but also on behalf of passengers that have filled in official complaints sheets and handed them in to AENA, the company that runs Spain's airports, even though it is not specifically tasked with this responsibility. "If we see that five out of 10 complaints forms are referring to the same problem, then we can tell that something is going on," says Lestau.

Passengers do not have to make their complaint at the airport where the problem arose (except in the case of suitcases being lost or delayed), nor use any specific procedure: "A problem can be written down on any piece of paper after the event," says Lestau.

What is less clear is to which body complaints should be handed. A number of airlines do not make it clear on their website how passengers should go about complaining. AESA's website now includes a list of addresses of every airline that operates in Spain.

In 2011, there will be twice as many fines imposed as last year (106 have already been issued). In most cases each fine is the result of different complaints, says Lestau, and the fines imposed tend to amount to between 4,500 euros and a maximum of 70,000 euros, although the overwhelming majority are at the lower end of the scale.

Spanish law forbids the publication of fines, something that Lestau would like to see changed. "They might start taking things a bit more seriously if the media became involved," she says. "Ryanair did publish some information about fines, but the information was fairly old, because if they were to publish more recent sanctions..."

Aside from AESA, there are other ways for passengers to make claims. The European Consumer Center highlights the case of a passenger whose flight from Madrid to Lisbon was cancelled two hours before takeoff. The airline offered him a flight the next day and put him up in a hotel. The passenger then claimed 250 euros in compensation, but the company didn't pay the money. The passenger contacted the European Consumer Center, which then contacted the airline on his behalf, eventually securing the amount.

Lestau says that the upcoming changes to EU legislation on passengers' rights must include an improvement in the procedures for making complaints.

Rubén Sánchez, spokesman for the FACUA consumer rights organization says that AESA has not done enough to protect consumers. "AESA should be tougher on the airlines, this would prevent us having to take cases to court in the first place."

Lestau says that reports issued by the Air Safety Agency should be applied to airlines, which would force companies to take the matter up with AESA, which would in turn increase paperwork, but could be managed with a bigger budget and more resources.

She adds that legislation is being prepared to clarify complaints procedures, but it is currently awaiting approval by the Public Works Ministry. Lestau had hoped that the law would be approved before the end of this legislature, but it will now go before Congress sometime next year.