Not the trip we planned, American Investor, Fall 2016

The EU struggles with delayed flights

Planes always seem late. Usually they don’t fall behind schedule, but that doesn’t dispel the nagging sense of delay embracing us from the moment we realize that after checking in our baggage we still have 90 minutes left to the flight, and at least 50 minutes to the boarding call. One is left to stroll through perfume shops so generic it’s hard to name the country you’re in. The airport food is subpar, with vain attempts at spicing it up with coffee. There is no amount of time one would like to spend at the airport. Waiting around may be charming only in cheap novels—aptly named airport literature—which treat long waits, long journeys and shabby rooms rented by middle-aged detectives the way their 18th-century predecessors treated green pastures. But the 18th-century literature could be excused, as the pastures had long been enclosed. There is no such excuse for airports. They never close, always in waiting.

Beyond delayed flights

Under the circumstances, it’s small wonder that the European Union decided to regulate late flights. It is not only that they contributed to the general lateness at airports; they also grounded the EU’s nurturance of air travel. Admittedly, air travel has connected Europe more strongly than any directives from Brussels. It is easier to be a member of one society with somebody in Lisbon we can reach in 4 hours than somebody in Lisboa separated by a four-day expedition by train or ship. This may help explain why the EU funded all those empty airports in Spain or why when it considers directly taxing citizens it looks first to air passengers.

Rumor has it that EU officials were personally interested in flight delays because they are frequent flyers. It is hard to know for sure. But the fact is that there now is a legal regime in the European Union for canceled and delayed flights. The act presently in force has a name with the baroque sturdiness (think El Escorial) I’ve always found reassuring in EU bureaucracy. It’s called “Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.” For short we’ll call it the regulation—but to make the article sound more legal, let’s make that a defined term: “the Regulation.”

Funny thing, I remember the first cases before Polish courts, when the Regulation was interpreted (or for the sake of legalism, “construed”) as covering merely overbooking—not even other instances of travel cancellation. Those days are long gone. It suffices to Google “delayed flight” to be presented with an array of firms offering their assistance in getting compensation for any suffering at the hand of airlines.

Meaning of delay

But how did we get here? Initially, the scope of the Regulation was rather narrow. Well, not anywhere as narrow as in the Polish judgments I mentioned, but the strongest sanction in the Regulation—fixed-sum compensation—applied only to canceled flights. There were certain duties for airlines in case of delays but nothing as brutal. And then the European Court of Justice delivered its Sturgeon judgment in 2009. It was a reply to a question by a national court and the problem was quite simple: Does a very long delay amount to cancellation? No, answered the court, but passengers of delayed flights have the right to compensation nevertheless, as long as the delay on arrival was more than three hours.

This didn’t go well with the airlines, which judged the judgment as flying in the face of the Regulation. There was no compensation for delayed flights provided for in the text. It took teleological, functional, and historical construction to arrive at the Sturgeon holding. Yet, the holding held. It was challenged in subsequent cases and the Court of Justice affirmed it; it was accepted by national courts; it became the law.

Behind extraordinary

There is, however, one exception to the compensation regime, one situation when the airline is not required to pay. It is when the delay or cancellation “was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” This short passage is the major source of contestation, the main battlefield in a game between passengers and airlines. It leads us to truly philosophical problems, appropriate to consider over long waiting hours at the airport. Like: What is reasonable? What is unavoidable? Will my plane be more than three hours late?

Striking questions

Obviously we lawyers take pride in speculating on what is reasonable and unavoidable (lengthy contracts, big lawsuits). Consider strikes, for instance. If all reasonable measures are taken, can a company prevent a strike by its workers? Is accepting their demands a reasonable action the company should be expected to take? If it is the firm’s duty to avoid strikes, doesn’t this give unfair leverage to the workers, who may enforce their demands because of the threat of passenger compensation? You don’t need Thomas Piketty to tell you that relations between labor and capital are strained in these times of permanent crisis. These are the questions that must be answered every so often by the courts when hearing a passenger case. Or maybe labor strikes are just part of a company’s everyday business, not any extraordinary circumstance, just as life has made hanging around airports and waiting rooms a part of our everyday experience, a part only sweetened by the possibility of collecting some compensation when our plane is even later than usual.

Published in: American Investor Fall 2016