Summary: Our team has been busy for months with the question of whether you are entitled to a compensation payment after a long delay. In EU countries, this is undoubtedly the case, but in Switzerland, however, there are different opinions on this. The cancelled.ch team tries to present the background of this ambiguity in an understandable way.
According to EU passenger rights regulation 261/2004, only cancellations and non-promotions are entitled to compensation. However, in the so-called Sturgeon ruling of 2009, the European Court of Justice (ECJ) decided to extend this rule to delays of three hours or more. The reason is obvious: If my flight is cancelled and I get a replacement flight a few hours later, it comes out the same for me as if my original flight would have been delayed by many hours. Incidentally, before 2009, there were frequently cases in which flights were carried out with more than 20 hours delay.
Since this Sturgeon ruling, you are now also entitled to € 250 to € 600 (depending on the flight distance) in cases of delays of more than three hours. Above all, Swiss airlines almost always refuse to pay out these amounts. Why this is the case, we would like to show below:
ECJ judgments and thus also the mentioned Sturgeon ruling are not binding in Switzerland. However, as Switzerland has taken over the EU passenger rights regulation, Swiss courts are meaningfully referring to the ECJ rulings on questions in this regard. They were even obliged to do this by the federal court. It noted that they should only deviate from relevant ECJ rulings if justified by valid reasons.
The main purpose of the EU Passenger Rights Regulation is to strengthen consumer rights and international harmonization of intellectual property rights. It is therefore very difficult and requires a lot of creativity to find any justifiable reasons why Swiss passengers should be made worse off than those from the European Union.
Why do airlines on flights to and from Switzerland still take the view that they have no obligations? Very easily; they have little interest in spending a lot of money and adequately compensating passengers. This is absurd: if, for example, I have a very delayed flight from Zurich to Vienna, I could theoretically also complain in Vienna. The local courts would almost certainly approve of an action, since the courts there must follow the Sturgeon ruling.
The situation is quite tricky, especially because the Bülach district court seemed to have found such valid reasons in the past. In fact, however, rulings are only made according to its own interpretation. The importance of the above-mentioned goals and the Sturgeon judgment generally play a subordinate role. Furthermore, the interpretation was made in accordance with the principles of Swiss law, rather than those of the actually applicable Vienna Convention on the Law of Treaties. Regrettably, no one has ever made such a judgment. We believe there is a high likelihood that higher-level bodies would tend to interpret on a more European-compatible and thus more consumer-friendly basis. Depending on the circumstances, cancelled.ch, as an advocate of Swiss air passenger rights, will initiate such a process and, if necessary, contribute to a more consumer-friendly practice.
Last but not least, it is pleasing to add that the current EU passenger rights regulations are being revised. Due to Brexit, this process has been delayed somewhat. The revised version will most likely include compensation for heavy delays. This would then provide clarity in this way and the rights of Swiss consumers would be up to date again.
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