Passenger disruption rights upheld as Emirates loses test case over missed connection payments

The UK Supreme Court last week refused Emirates Airline permission to appeal in relation to a previous ruling over passenger compensation for missed connections outside the European Union (EU), a case that global airlines that offer connecting flights that touch Europe have been watching closely.

The United Arab Emirates (UAE) based carrier was one of five airlines that the UK Civil Aviation Authority (CAA) commenced enforcement action against in Spring 2017, for failing to compensate passengers that had suffered a long delay as a result of a missed connection outside the EU.

While four of the airlines moved into compliance following the CAA’s enforcement action, Emirates sought leave to appeal to the Supreme Court. In its decision, the Supreme Court stated that Emirates’ appeal “did not raise an arguable point of law,” because the Court of Justice of the EU had already given a clear answer.

Effectively, the Supreme Court ruling reaffirms that passengers are entitled to compensation for missed connections according to the length of delay in arriving at their final destination, regardless if their end point or connecting airport are in or outside the EU. The ruling will mean numerous airlines across the world will need to pay out claims for passengers under such circumstances.

Emirates had declined compensation on flights between Europe and Dubai that had arrived less than the three hour late requirement even if passengers missed subsequent onward flight connections. It and several others had originally argued that because the onward flight began outside the EU that EU rules did not apply.

The Court’s decision confirms the CAA’s interpretation of the EC 261/2004 passenger compensation law and the regulator has urged Emirates to “comply immediately and pay compensation in compliance with the law”. It says it will now “progress its enforcement action” against Emirates to ensure that it “complies with the law, requiring them to amend their policies and practices and to pay claims” it had incorrectly refused previously.

“Emirates priority should be looking after its passengers, not finding ways in which they can prevent passengers accessing their rights,” says Andrew Haines, CEO at the UK CAA. “They have failed in their attempts to overturn the Court of Appeal Judgement, which now means that millions of pounds worth of compensation is due to its customers. It is time for Emirates to pay what is owed.”

Emirates has expressed “disappointment” at being refused permission to appeal and could now be forced to pay out EUR600 compensation claims to thousands of passengers for delayed flights dating back many years. It is unclear how many compensation claims Emirates has previously refused to honour for these reasons, but it could be facing a significant payout as a result of the Supreme Court ruling.

In its judgment handed down in Oct-2017, the Court of Appeal ruled against the Gulf-based carrier’s original appeal to a prior decision by the Liverpool County Court which ruled the wording of the regulations and subsequent interpretative case law clearly stated that delays were quantifiable based on a passenger’s time of arrival at their final destination, irrespective of whether that journey was broken into two separate legs.

Emirates had argued that the Montreal Regulations – which aligned EU laws with the provisions of the Montreal Convention in 2002 – do not apply to non-community carriers and claimed that the Court of Appeal was not bound by any interpretation of those regulations by the European courts, because the interpretation of international treaties such as the Montreal Convention is a matter for domestic courts.

The Blue Swan Daily analysis of OAG flight schedule data for the current winter 2017/2018 schedule highlights that Emirates Airline is the largest non-European carrier by capacity currently serving the European market. During this period, the airline has more than 4.8 million one-way seats into European destinations.  This actually ranks it as the 24th largest airline in Europe by seats ahead of local operators such as Air Europa, Brussels Airlines, LOT Polish Airlines, Transavia and Aegean Airlines.