Easyjet and its non-compliance of Regulation EC 261/2004 on passengers’ rights

You may recall the reference to passengers’ rights so many times repeated in the media in the wake of the Ryanair scandal originated in the cancellation of thousands of flights by the low-cost airline in September 2017. You may even remember that the UK regulator, the Civil Aviation Authority – CAA – threatened Ryanair with legal action if it did not respect those rights one of which was to pay compensation for cancelled flights to those passengers that were entitled to it under EU law (see here). Having that in mind you may not be surprised to learn that Easyjet sometimes disregards those rights, I know from first-hand experience.

Easyjet staff not only ignore the attempts passengers make to settle the matter in an amicable way, they also block your email address so you will not “bother” them with requests once they decide they will not pay what they owe. Further, Easyjet clearly chose to disregard the regulator’s decision in favour of the passenger, in this case me, which clearly states that it has to pay the compensation established by Article 7 of Regulation EC 261/2004. The Spanish regulator  ie Agencia Española de Seguridad Aérea – AESA said so on 10 October. Quote: “Teniendo en cuenta lo anterior, así como las pruebas aportadas por las partes, entiende AESA que la compañía no ha acreditado la concurrencia de circunstancias extraordinarias por lo que la compañía debe abonarle una compensación. Considerando que la distancia de su vuelo es inferior a 1.500 kilómetros y teniendo en cuenta el Artículo 7 del Reglamento CE 261/2004, la compensación debe ser de 250 euros por pasajero”.

What happened to me?

I booked return flights from London Stansted to Bilbao in July. I chose Easyjet not because I like the airline but because the departure time of the flights suited me nicely. It all went fine until I arrived to Bilbao airport for my return flight on 24 July just to discover the flight had been cancelled.

From then on it was all a struggle. Easyjet staff disappeared and we were left to deal with airport staff who informed us we had to “download the Easyjet app and deal with the situation via it” [thanks EU for the Regulation ending roaming charges!]. Via the app we found out that the reason our flight had been cancelled was that “due to delays in previous flights made by the assigned aircraft if our flight were to depart the crew would exceed the permitted flying hours. As a result the flight was cancelled.” Calling ground crew to take over was not contemplated nor any other solution.

A couple of hours later we received a text message indicating which hotel would provide accommodation for the night. Most of us were able to book a seat in the flight departing at 22.00 hs on 25 July ie 24 hours after the original departure time. Upon arrival to the hotel no meal was provided just breakfast the following day. No other meals or assistance was provided in the 26 hours it took for us to board our return flight to London, which departed on 26 July, as opposed to 25 July. Do you dare guess why? ….due to delays in previous flights.

As I have good understanding of EU law and of the Regulation that sets out the obligations of airlines in cases of delayed or cancelled flights I kept receipts of the very modest expenses I incurred during the whole day and once back in London I submitted the request for reimbursement. To my surprise Easyjet rejected all the receipts save for EUR 1.45 of the bus ticket to the airport. That, I consider an insult, to say the least.

As regards my request for compensation under EU law it was rejected claiming “extraordinary circumstances” as justification, which is allowed by the Regulation as exception to compensate. Please note that the so-called extraordinary circumstances took place in other EU Member States not in Bilbao-Spain ie the departure airport of the cancelled flight. This can hardly amount to extraordinary circumstances as it was foreseeable and could have been dealt with in an efficient manner.

What to do?

Following the steps set up by the airline did not bring any successful conclusion of the matter so I decided to leave it to the regulator. According to the Regulation I could submit a complaint to the regulator of the departure or arrival city. I chose to start with the Spanish regulator ie Agencia Española de Seguridad Aérea – AESA – and submitted all the documentation necessary for them to assess the situation.  AESA stated it would come to a decision within 90 days.

Out of the blue, in early September, I was contacted by Easyjet offering a “goodwill gesture” that did not even amount to my rejected expenses. So I decided to try a different approach and contacted Easyjet’s CEO directly. Even though I am positive that Carolyn McCall never read my email one of her assistants did and contacted me – we managed to settle the expenses matter in no time. However, there was no result on the compensation for the cancelled flight even though I stressed a few times that the argument of “extraordinary circumstances” did not apply in this case.

My second attempt to contact the CEO failed as it became clear that once Easyjet staff [on their own or guided by internal procedures] decide the matter is closed your email address is blocked.

What exactly a passenger is entitled to under EU law?

The legislation in force regarding delayed and cancelled flights is Regulation EC 261/2004 which is directly applicable in the EU territory and as such to any EU based airline such as Easyjet. The rights it recognises are self-executing and directly enforceable. This means that passengers only need to invoke their rights and airlines should know better than to blatantly disregard those and the obligations that stem from the Regulation. However, as you can imagine some airlines’ business models are pushed to the extreme in the hope that, if something goes wrong, they may get away with it as the passengers may not even know (or care) they have enforceable rights or, because they can always find a “reason” not to pay such as the “extraordinary circumstances” exception contained in the legislation.

The issue arises when airlines stumble with people that know their rights and want companies to comply with their obligations. Even in this case, a further attempt to end the matter by ignoring the requests or not giving effect to a regulator’s decision is made in the hope that the customer will give in by exhaustion.

These are the core provisions you must remember:

Article 5 – Cancellations

  1. In case of cancellation of a flight, the passengers concerned shall:

(a) be offered assistance by the operating air carrier in accordance with Article 8; and

(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

[…]

  1. 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.

[…]

Article 7 – Right to compensation

  1. Where reference is made to this Article, passengers shall receive compensation amounting to:

(a) EUR 250 for all flights of 1500 kilometres or less;

[…]

  1. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.

Article 9 – Right to care

  1. Where reference is made to this Article, passengers shall be offered free of charge:

(a) meals and refreshments in a reasonable relation to the waiting time;

(b) hotel accommodation in cases

– where a stay of one or more nights becomes necessary, or

– where a stay additional to that intended by the passenger becomes necessary;

(c) transport between the airport and place of accommodation (hotel or other).

[…]

Article 16 – Infringements

  1. Each Member State shall designate a body responsible for the enforcement of this Regulation as regards flights from airports situated on its territory and flights from a third country to such airports. Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected. […]
  2. […] each passenger may complain to any body designated under paragraph 1, or to any other competent body designated by a Member State, about an alleged infringement of this Regulation at any airport situated on the territory of a Member State or concerning any flight from a third country to an airport situated on that territory.
  3. The sanctions laid down by Member States for infringements of this Regulation shall be effective, proportionate and dissuasive.

In light of the above it is clear that Easyjet breached most of the mentioned legal provisions.

Easyjet rejected the reimbursement of the very modest expenses I incurred during my 28 hs stranded in Bilbao except for the EUR 1.45 bus ticket from the city to the airport to catch the re-scheduled flight. On the bright side, the accommodation provided was above average.

When it came to compensation Easyjet staff [when they decided to contact me] kept on bringing up the extraordinary circumstances exception.

Easyjet business model relies on the same aircraft making several trips across different Member States in any given day and, in most cases, it is a good model. However, when one leg of those trips is affected there is a cascade effect on the remainder which, in cases like mine, results in flights being cancelled either for lack of willingness to find a solution or simply because they do not have staff on the ground to take over. None of those scenarios amount to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Easyjet chose to leave 150+ passengers stranded and when some of those tried to enforce their rights they were simply insulted or ignored.

During my stay in Bilbao I found out that even Ryanair pays up in similar circumstances to those endured by the passengers of flight EZY3228 (let’s leave aside the Ryanair scandal as it involves 50 000 flights not a few random cancellations). One of my fellow passengers had complete confidence in Easyjet abiding by the Regulation as I did, at least for a while.

One would have thought that in the wake of the Ryanair scandal Easyjet would be paying close attention to its brand perception by low-cost airlines passengers as it is in line to benefit from Ryanair’s reputational damage. However, it seems not even a regulator’s decision can make them fulfil their obligations under EU law. So, that leaves a question unanswered…. is this acceptable to you as a customer or, perhaps, it is better to rely on airlines that do comply with the law?

What next?

The next step is to submit a complaint to the UK regulator CAA and see whether Easyjet prefers to abide then. If that also fails there are still some options. Meanwhile, if you are one of those 150 passengers remember you have rights you just need to enforce them however possible (ask directly for the compensation and if that doesn’t work contact the regulators and let others know what happened to you eg contact some journalists). I got my expenses back….. now I want the amount that by law Easyjet owes me.

 

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