Flight Rights: USA V Europe

19/04/2017 11:51 BST | Updated 19/04/2017 11:51 BST

The shocking scenes in the video showing a passenger being dragged off a 'full' internal US flight, while his fellow passengers expressed outrage, frankly represented exceptional poor judgement by the airline and its employees!

For British Consumers watching this awful event, they could be forgiven in thinking whether anything like this could happen to them here in Europe? We must remember that whilst the United States has a set of Consumer Rights called 'Fly Rights', which are often expressed as an advisory, with some specific obligations on the airline in the event of a denied boarding, they do not represent the full range of Rights available in Europe. In Europe, aviation rights are governed by EC Regulation 261/2004 which provides for extensive rights if your flight is delayed, cancelled or if you are denied boarding. 

Throughout the world it is normal practice for flights to be overbooked and there are no laws to prevent that happening. Airlines overbook because they claim that 'no-shows' or people changing their travel plans could mean that their aircraft will fly with empty seats; they are trying to maximise their profits.

British holidaymakers must bear in mind that whether it is in the United States or here in Europe, airlines are entitled to call for volunteers where a plane is overbooked. In the US, the Regulations do not stipulate what you should receive but an agreement should be made as to how they will resolve your claim; in Europe whilst they will call for agreement between the passenger and the airline, the law cements in the fact that you have to be offered either a refund of your fare or re-routing.

If flying in Europe and there are no volunteers, extensive European Rights apply which includes compensation as set out in the regulation, refund or re-routing along with meals, refreshments, hotel accommodation and transport where appropriate. In the US, there is some access to financial compensation, but the rights do not extend to those as found under EU Regulation, in fact there is a suggestion that you could take the airline to court to reclaim additional costs.

It is always important that no matter where you travel, that you take the time, particularly when booking your travel arrangements, to understand your rights and the differences in those rights against those that you are perhaps familiar with in Europe.

My advice to Consumers is once you know your rights (always carry a copy with you), present those rights where you think you are being denied boarding (or indeed if you are delayed or suffer a flight cancellation) and always take careful note of what is said and by whom; in an European scenario those actions can be presented to the National Enforcement Bodies charged with protecting your rights to help you find a resolution.

In the case of the USA, the 'Fly Rights' process strongly guides you toward reporting it to the airline directly; the 'regulation' however also offers the possibility to make a report to the Federal Aviation Administration but they only appear to suggest that enforcement action will be taken where 'a serious breach of the law has occurred'. Interestingly, the 'Fly Rights' page suggests that in the event that you are unable to resolve your complaint, you could always take it to the Small Claims Court; they reference a Department of Transportation Publication 'Tell it to the Judge' which is not linked from their page!

In Europe the process of complaints about an airline is closely linked to the Air Passenger Rights legislation (261/2004). Within that Legislation, each Member State is obligated to create a National Enforcement Body; in the case of the UK, it is the Civil Aviation Authority (CAA). If you have a complaint about an airline for their failures under the Regulation and you either have or intended to depart from the UK on an EU Registered Airline, then you should follow the complaints process as set out by the CAA. One important point to bear in mind is that there is a slight shift in emphasis by the CAA which in their own words suggests that they are 'only likely to consider your complaint if the airline or airport you've complained to is not a member' of an approved Alternative Dispute Resolution Body (ADR). This is an important distinction because it tends to suggest that the CAA will not deal with your complaint and that ADR will be strongly recommended to you. In entering ADR you should bear in mind that it is a legal process and that care should be exercised before you commit to ADR because of the complexity of flight delay, cancellation or denied boarding cases; in my view, you should exhaust all possible assistance from the CAA and carry out full research before you decide to commit to that route! If however, your flight was due to leave from a non-UK EU Member State, then you must make your complaint directly to the Enforcement Body in that Member State; the EU provides Consumers with access to a complaints form that they can use with any National Enforcement Body.

It may be that what we have seen in the US is the exception rather than the norm and I would always hope that airlines use common sense and dialogue to overcome any difficulties that are not the fault of Consumers; the incident does however stress the need for consumers to be familiar with their Rights against a Company that may not be keen to offer them!