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Air France, long delay, EU compensation regulations for 600 EUR


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I'm formulating my action plan against Air France. I just sent this email to mail.wembleycc /at sign/ airfrance.fr (on recommendation from their customer support telephone line).

 

Hello,

 

My flight leaving from Rio De Janeiro to London on 2125 5th Dec 2011 (flight number: AF445, booking reference: 2KDMPT) was cancelled until a replacement flight the next day 1825 6th Dec 2011 (flight number: AF443).

 

Passenger name: XXXX XXXXXX

Passport number: XXXXXXXXX

Attached is my original e-ticket booking.

 

Under Regulation EC 261/04, a flight longer than 1300km, which was not cancelled under extraordinary circumstances (force de majeur), with no leading notice before 2 weeks and where the delay is more than 4 hours- these entitle me to compensation of 600 EUR. My cancelled flight fits all these criteria.

 

I do not want to renegotiate any settlement, and have a stamped Certificate of Flight Delay / Cancellation. I am writing this email after having been bounced around many different departments and being unsuccessful in my claim.

 

Some points to note:

* There were no staff present during the initial flight until 2330, when they came and handed out some light snacks, and told us we would learn if it is possible to fly at 2400.

* No information on our rights was shown on the desk anywhere as required under EU law. Learning about my rights, required me to go find internet at our hotel and for me to research at my own initiative.

* The staff were reluctant to hand me the Certificate of Flight Delay / Cancellation. I had to be persistant. Still this was the only document they were willing to hand over to me.

* In the European airports, Paris CDG and London Heathrow, I was continually bounced around departments until I was told that it's only possible to claim over telephone or via email.

* On arrival for my transfer in Paris, they told me I couldn't board the plane as a late passenger because it had already left. Upon telling them I was late because they had issued me the wrong ticket, I was let onto the plane which did not leave for another 20 mins.

Considering I paid more than 1000 EUR for my tickets, it's a bit low to try to squeeze late fees and every penny from your customer.

 

Under the law, I am in the white here- no contest. Please pay up. I do not want to negotiate and want a straight settlement for the sum of 600 EUR paid either into my bank account or a mailed cheque.

 

Thanks. Please realise I'm understandably annoyed from continually chasing different departments. But I will not stop since 600 EUR is a lot of money for me.

 

Bank accounts:

 

For UK GBP deposits:

Account title: XXXXXXXXXXX

Account number: XXXXXXXX

Sort code: XX XX XX

 

For EUR deposits:

Account title: XXXXXXXXXXXXXXXX

Bank name: XXXXXXXXXX

Branch address: XXXXXXXXXXXXXXXX

IBAN: XXXXXXXXXXXXXX

SWIFT/BIC: XXXXXX

 

Today it's Saturday. On Monday, I will call them again (which I'll try to record on Skype). If I don't make any progress then I'll call the Civil Aviation Authority to make a complaint.

 

On Wednesday, I'll send a 'letter before action' (any good templates?) to their registered office address here in the UK. I'll restate my claim for 600 EUR and that they haven't paid, and have 14 days together with 8% interest.

 

I'll send this using recorded delivery and keep a duplicate (obviously).

 

Am I doing this right? Thanks for your help.

Edited by genjix
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Response back from Air France:

Dear Mr.XXXX,

 

Thank you for your email dated 12 December 2011 concerning your recent travel on AF 445 from Rio de Janeiro to Paris scheduled for 05 December 2011. At the outset, on behalf of Air France, please accept our apologies for the inconvenience caused due to the flight cancellation.

 

As you would expect we will make every effort in our power to avoid a flight cancellation. That said, despite our very best efforts, unfortunately the reality is that there are rare occasions when - due to a random mechanical failure that could not have been foreseen through usual means of identification - we are forced to withdraw an aircraft from operations. We would like to clarify that the aircraft scheduled to operate at AF 445 developed a mechanical failure due to electrical flashings in the cockpit.

 

Our first responsibility must always be the safety of our passengers and crew, which is a responsibility we would never avoid. It goes without saying that we would never consider operating a flight where passenger or crew safety would, in any way, be compromised in order to remain punctual. Without question, we fully accept that any disruption to a planned journey is a major frustration to our customers and of course is equally frustrating towards our own aim to provide passengers with the reliable service they demand, deserve and are accustomed to.

 

While I can only regret any such incidents that prevent us from maintaining a reliable service, the EU Regulation 261/2004 considers this type of last minute flight cancellation as beyond the control of the carrier and as such the regulation stipulates that no compensation is due. However, we note that our staff at Rio airport made arrangements for hotel, transfers and meals for all affected passengers. This amounts to the right to care and assistance air passengers have under the applicable EU regulations.

 

While we can only regret any such incidents that prevent us from maintaining a reliable service, as a token of our appreciation of your understandable disappointment and a gesture of our goodwill, we are pleased to offer you a non-refundable Air France Electronic Travel Voucher for GBP 150, details of which are as follows:-

 

Name: Mr. XXXX XXXXX

Electronic Voucher number: 057-XXXXXXXXXXX

Amount (non-refundable): GBP 150

Date of issue: 14 December 2011

Validity: 13 December 2012

 

 

This voucher is valid for a maximum of 12 months from the date of issue mentioned above and may be redeemed in full or part payment of any Air France, KLM, Delta Air Lines, Kenya Airways, Martinair or Cityjet published fare where all flights in the itinerary are operated and marketed by one or more of the aforementioned partner airlines.

 

Your ticket must be booked and issued within the validity period of the voucher. This validity period cannot be extended and the voucher has no cash value. It is valid only for use by the named holder.

 

To book your ticket by telephone, please contact your local Air France Reservation Department. You can also redeem this voucher at any Air France city or airport ticket office. Currently it is not possible to redeem this voucher via our website, therefore all telephone and city or airport ticket office bookings fees that might otherwise apply will we be waived.

 

Contact details for all Air France sales offices worldwide can be found on aifrance website.

 

Mr. XXXX, we sincerely regret that you were disappointed with our services on this occasion but hope that your subsequent journeys with us will be to your fullest satisfaction.

 

Yours sincerely,

 

R.Rohatgi (Ms.)

Customer Care.

Edited by genjix
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My response back:

Hello,

 

In response to your email offering me a 150 EUR non-redeemable voucher, I do not want it. Instead I want the money (in either EUR or GBP) for the full 600 EUR as entitled to me under regulation EC 261/04. My case is exactly the same as the one referenced in the legal case Bock vs Air France (C-432/07). Air France already has a poor track record with complying with EU regulation (especially EC 261/04).

 

Should you not offer me a refund, I will have no other choice but to complain to the Civil Aviation Authority and initiate a small claims procedure. If it comes down to that, I will seek 600 EUR compensation + my legal costs + my travel costs + compensation for my time + 8% interest. This is a formal notice for Air France to refund me 600 EUR as required under EC 261/04 due to my cancelled flight from Rio de Janeiro on flight number AF 443.

 

My bank account for GBP and EUR are provided below:

... clipped from here

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Another response by me:

Additionally, in response to your claim that:

 

"While I can only regret any such incidents that prevent us from maintaining a reliable service, the EU Regulation 261/2004 considers this type of last minute flight cancellation as beyond the control of the carrier and as such the regulation stipulates that no compensation is due."

 

I refer you to article 5, paragraph 3 of the text for EC 261/2004, which says:

 

"3. 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."

 

As to what obliges "extraordinary circumstances", that is not clarified in the text of the document. However, "extraordinary circumstances" (force de majeur) was laid out in the legal case of Bock v Air France (C-432/07):

 

"the European Court of Justice held on 19 November 2009 that despite no express provision in the Regulation to compensate passengers for delay, passengers are now entitled to the compensation as set out in Article 8 for any delay in excess of three hours providing the air carrier cannot raise a defence of "extraordinary circumstances"."

 

The fourth Chamber also ruled that under the definition of "extraordinary circumstances", technical faults within an aircraft should not be included and therefore an air carrier cannot rely on a technical fault within an aircraft as a defence.

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new update:

Dear Mr. XXXXX,

 

I write further to your email dated 14 December 2011.

 

I am sorry to learn of your disappointment at the commercial gesture offered to you in response to your recent complaint and regret that you remain dissatisfied.

 

After a detailed review once again, I am sorry that I cannot respond favourably on this occasion ; no compensation can be offered since the current legislation as well as the terms of the General Conditions of Carriage absolve airlines of all liability in such circumstances. Delays and cancellations caused by circumstances, which could not have been avoided even if all reasonable measures were taken, cannot be considered for compensation and regret our inability to accede to your claim for compensation under the European Directive no 261/2004.

 

In cases where the current legislation does not offer compensation our Company has established a commercial policy common to all customer care agents where goodwill gestures are offered in instances where we feel our services were not up to the standards we aim to provide. As part of the handling of our customers' requests, we are careful to base our goodwill gestures on a consistent and fair assessment of the difficulties our passengers have encountered. The voucher offered corresponds to the maximum we can offer in such circumstances and I therefore regret I cannot respond positively to your request on this occasion.

 

I do hope that this will serve to clarify and to justify our position with regards to your claim for compensation and we would like to advise you that we have applied the current European regulations in the handling of your file and regret our inability to accede to your claim for compensation. Once again, I would like to extend my apologies to you for the dissatisfaction that you have expressed and very much regret that, whilst remaining sympathetic to your situation, I cannot respond more in the terms you would wish.

 

Yours sincerely,

 

R.Rohatgi (Ms.)

Customer Care.

Edited by genjix
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My response back:

 

"no compensation can be offered since the current legislation as well as the terms of the General Conditions of Carriage absolve airlines of all liability in such circumstances. Delays and cancellations caused by circumstances, which could not have been avoided even if all reasonable measures were taken, cannot be considered for compensation and regret our inability to accede to your claim for compensation under the European Directive no 261/2004."

 

Your claim that your own General Conditions of Carriage absolve you of all liability by overriding EU law and legislation is dubious and frankly absurd.

 

But in order to entertain your claim, I invite you to examine point 16 for the website of the Communication department of the European Commission:

 

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/05/181&format=HTML&aged=0&language=en&guiLanguage=en

 

"16. Can the rights provided under this Regulation be limited or increased, in particular by an exemption or a restrictive measure appearing in the contract of carriage?

 

No. Such a clause would be pointless. If however these exemptions applied, the passenger could always seek complementary compensation through the courts or the competent authority."

 

I reiterate my statement from our previous emails; Under the EU Denied Boarding Regulation 261/2004, I am entitled to the sum of 600 EUR compensation and look forward to receiving the sterling equivalent within the next 14 days.

 

... my address here

 

Unfortunately, it looks like I'll be contacting the Civil Aviation Authority tomorrow and begin initiating a small claims procedure :(

 

I found a useful website here, http://ec.europa.eu/transport/passengers/air/air_en.htm

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New reply back,

Dear Mr XXXXX,

 

 

Thank you for your email dated on 15 December 2011 regarding the flight AF445 on the 05 December 2011 form GIG to CDG.

 

From this, we are very sorry to learn of your experiences resulting from the recent disruption of your journey. Please accept our most sincere apologies

 

Our maintenance records relating to the aircraft used to operate the aforementioned flight demonstrate a technical irregularity which was identified by the crew at short notice during routine pre-departure checks.

As a result of this situation, we were compelled to withdraw the aircraft from service in order that the aircraft could undergo further unscheduled assessment and repair.

 

Due to the complex nature of the fault identified with the aircraft, it was unfortunately not possible to rectify the irregularity at such short notice and the flight therefore had to be cancelled. You were therefore rebooked on the next available flight AF443 on 06 December 2011 to your destination CDG.

 

While Air France is aware of the recent court ruling determining that unforeseen technical irregularities do not automatically constitute extraordinary circumstances, I would like to reiterate that all claims for compensation arising from flight irregularities must be assessed on an individual basis, depending on the specific circumstances involved. Our records show that in this specific case, the irregularity arose despite our having taking all reasonable measures to prevent it; moreover, by its nature the fault was not the result of normal airline operations.

 

As a consequence, the Regulation which remains in force as the defining legislative act determining passenger rights in the European Union permits Air France to decline claims for compensation arising as a result of the situation affecting your flight with reference to article 5 clause 3 of said Regulation.

 

As a gesture of goodwill, Air France has offered you a voucher of 150 euro, which can be used to obtain a discount on a future flight with us.

 

While we regret to note your dissatisfaction with this offer, we must confirm that we are unable to increase it or to exchange it for a cash equivalent.

We regret that we are unable to respond favourably to your claim; however, we trust that the information provided will help to clarify our position with regard to your flight. We hope to have the opportunity of serving your travel needs again on another flight with us in the near future.

 

Yours sincerely,

 

J. Speronel

Customer Care Europe

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My response,

On advice from the UK CAA (Civil. Aviation. Authority.), I have been advised to quote the case C-549/07 Wallentin-Herrman. If you read communication 2011 174 from the European Commission:

 

http://ec.europa.eu/transport/passengers/doc/com_2011_174_communication_en.pdf

 

"In case C-549/07 Wallentin-Herrmann the Court clarified when a technical problem in an aircraft cannot be regarded as an extraordinary circumstance ."

 

This significantly narrowed the constitution of 'extraordinary circumstance' for technical faults.

 

Furthermore, the joined cases of Sturgeon v Condor, and Bock v Air France (C-402/07 and C-432/07), article 5 paragraph 3 states:

 

"Thus, the answer to the third question in Case C‑432/07 is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation or delay 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. "

 

The fourth Chamber also ruled that the definition of extraordinary circumstances , technical faults within an aircraft isn't included.

 

Ms. R. Rohatgi earlier stated:

 

"We would like to clarify that the aircraft scheduled to operate at AF 445 developed a mechanical failure due to electrical flashings in the cockpit."

 

I'm done dicking around with them. Now I take action.

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I got this nice email from europa.eu

 

Dear Mr XXXX,

 

Thank you for your message. We invite you to consult Article 15 of Regulation 261/2004 on the exclusion of waiver, which states that: “Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage”.

 

According to recital 14 of the Regulation, extraordinary circumstances "may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier".

 

In addition, the ruling of the Court of Justice of the European Union (case C-549/07) issued on 22-12-2008 established that, as a general rule, air carriers are obliged to pay compensation to passengers in case of cancellations due to technical problems in the aircraft. The Court of Justice ruled that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of "extraordinary circumstances" exonerating air carriers, 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, which would have to be proven by the carrier.

 

You may consult the press release from the Court of Justice of the European Union on case C-549/07:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-03/cp080100en.pdf

 

Please also note that the Court of Justice ruling in joint cases C-402/07 and C-432/07 sets a precedent for cases of long delay but not of cancellation. Nevertheless, you may consult press release No 102/09 of the 19 November 2009 from the Court, as it provides general information on the ruling on the two cases:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-11/cp090102en.pdf

 

Finally, we would like to inform you that Regulation 261/2004 covers all charter, regular and domestic flights departing from any EU/EEA/Swiss airport. However it only applies to flights departing from an airport outside the EU/EEA/Switzerland to an EU/EEA/Swiss airport, when the flight is operated by an EU/EEA/Swiss airline and the passenger has not received any compensation in a third country.

 

We hope that this information will be of use to you and we remain at your disposal should you have further questions about the EU.

 

With kind regards,

The "Passengers' Rights Team"/EUROPE DIRECT Contact Centre

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  • 1 month later...

Hi there, it is interesting to see that there are other people struggling to get their rights with AirFrance. We are in similar situation only that our flight was canceled without giving us the reason and still they claim that “Air France cannot be held liable for the circumstances that happened, as it was beyond control and according to current EU regulations, there is no compensation for unforeseen circumstances.“ The day before our fligh (which was at 6am)there was a very strong wind – gale which disrupted all flights in Scotland, however, by the evening it calmed down and all flights in the morning were scheduled except for 3 flights – one was ours – so we dont expect it was canceled because of the weather. Still we were really surprised to hear that they will not compensate us! How did it go with your claim in the end? Did you managed to get it sorted and meet your rights? cheers, Marti

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  • 3 months later...

Genjix,

 

Please please please give us an update as I am just about to start the fight with Air France.

 

Thinking of going direct to the CAA first? Not sure if that is possible but got to try as if I get another email back from India I will hit the roof....

 

Thanks,

 

Lynsey

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Genjix,

 

Please please please give us an update as I am just about to start the fight with Air France.

 

Thinking of going direct to the CAA first? Not sure if that is possible but got to try as if I get another email back from India I will hit the roof....

 

Thanks,

 

Lynsey

 

Lynsey

 

Genjix last logged on here on 22nd December so may not be looking at this forum any more. Why don't you post more details of your case here and forum members can then offer you further advice?

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