Airlines suffered a blow to attempts to limit compensation to passengers for lengthy flight delays in a ruling by a senior European Court of Justice (ECJ) official.

ECJ advocate-general Yves Bot ruled against British Airways, easyJet, Tui Travel, Lufthansa and airline association IATA and in favour of passengers in a judgment sought by the High Court in London and a court in Cologne.

Passengers on flights delayed three hours or more should be treated as though the flight was cancelled and entitled to compensation of up to euro600 (£500), according to Bot.

The ruling is not-binding on the UK and German courts, but national courts frequently decide in line with such decisions from Europe.

BA, easyJet, Tui Travel and IATA challenged the UK Civil Aviation Authority (CAA) in the High Court after the CAA declined to give assurances it would not interpret the EU passenger-protection regulations of 2004 as meaning airlines had to compensate for delays.

European Regulation (EC) No 261/2004 on passenger rights entitles passengers to compensation for cancelled flights, but limited this entitlement to payment for food and drinks when there are delays. However, an ECJ ruling in 2009 extended compensation rights to flight delays of three hours or more.

Airlines’ concerns at the costs of passenger compensation were heightened when they were forced to pay out following the six-day shutdown of European airspace by volcanic ash in April 2010.

Lufthansa is involved in a separate case in Cologne brought by a passenger who suffered a 24-hour delay on a Frankfurt to Lagos flight.

Bot explained his decision by saying: “The proportion of flights for which delay confers entitlement to the compensation is less than 0.15%.”
He argued the airlines had presented “nothing new which might call into question the interpretation the court gave of the provisions [in 2009]”.

BA said it was “aware of the non-binding opinion”, adding: “The ECJ ruling regarding the case in November 2009 has come under criticism from many parties and we believe the ruling was wrong.”

Bot also ruled in favour of passenger compensation in March in a case involving Ryanair and a passenger stranded by the ash cloud, after Ryanair refused a claim for accommodation.

The ruling comes as the EC considers placing limits on the liability of airlines towards passengers in light of the cost of the ash crisis. European transport commissioner Siim Kallas is undertaking a review of Regulation (EC) No 261/2004.