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A recent case heard by the European Court of Justice (ECJ) has found that passengers who have the right to claim reimbursement from their package tour operator for delayed or cancelled flights, cannot make a claim from the aircraft carrier directly under regulation 261/2004.

This is will be the case even if the tour operator is financially incapable of reimbursing the cost of ticket and has failed to take safeguarding measures to guarantee reimbursement.

The case
The passengers had booked return flights to Corfu in July 2015 with Hellas Travel BV (‘Hellas’), a tour operator based in the Netherlands. These flights were to be operated by Aegean Airlines under a charter arrangement.

Just days before departure, the passengers were informed by Hellas that their flights had been cancelled. This was due to the fact that Hellas was unable to meet the financial obligations under the charter agreement and so Aegean Airlines refused to fly.

In normal circumstances, the passengers would have the right to make a claim under the Package Travel Directive with Hellas, However, the company became insolvent and was unable to provide reimbursement, so clarification was sought as to whether the passengers could hold the air carrier liable in its place. In this case, the court found that they could not.

The outcome
Whilst the findings may not be what many airline passengers would have hoped for, it is likely to be welcomed by the airline industry as, historically, the Courts have sought to widen the amount of protection offered to passengers beyond that already provided in the legislation.

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