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Forums Other Flight changes and cancellations help EU261 compensation from BA-ticketed, Aer Lingus-operated flights

  • AL 571 posts

    There’s been some disjointed chit-chat on the daily topics about how I managed to get Aer Lingus, and their franchisee Emerald Airlines, to pay out EU261 compensation. I figured that writing it in one post might help others. A special welcome to those of you joining from, er, search engines.

    In February 2023, I booked a BA-ticketed, EI-marketed return flight from MAN to DUB, across two sectors. I did this because I wanted the Avios and Tier Points in to my BA account, and this is the only way to do that.

    The outbound sector was uneventful, aside from a little surprise at boarding an A321 rather than an ATR. It departed on time, arrived on time and Manchester Terminal 1 was as crap as ever. The return sector, however, was due to depart at 1540 (approx.), but was heavily delayed. At 1800, we were told that the flight had been cancelled as the aircraft had ‘gone tech’ (i.e. it had technical problems).

    What follows is, firstly, a brief primer about how these services are run (so we can once and for all deduce who the operating airline is, for the purposes of EU261 compensation) and, secondly, how that information helped me to get a resolution to my issue.

    The Less Than Strange Case of the Hidden Operator

    Aer Lingus has a slightly complex structure. It is an airline, a shared brand and a member of the IAG group of companies. Like its sister airlines in IAG, it operates with some autonomy – it has been suggested that the main reason that an airline might look to IAG is for financial backing and a better negotiating position with aircraft manufacturers. Aer Lingus is comprised of four airlines:

    – Aer Lingus
    – Aer Lingus Transatlantic
    – Aer Lingus UK
    – Aer Lingus Regional

    Aer Lingus operates services to and from Ireland to international destinations, aside from to the USA. Aer Lingus Transatlantic operates services from Ireland to the USA (and, possibly, the Caribbean). Aer Lingus UK operates Aer Lingus’ services from the UK to other destinations without transiting via Ireland (e.g. MAN-MCO). That leaves us with Aer Lingus Regional.

    Aer Lingus Regional operates services to and from the UK, and within Ireland, that are run by franchise partners. It has, since its inception in 2010, always worked this way. The first franchise partner was Aer Arran which, in 2014, became Stobart Air after a refinancing deal. In 2021, following Stobart Air’s liquidation, services ceased until a new franchise partner – Emerald Airlines – was appointed later in 2021, and services started to operate once again in 2022.

    Despite aircraft being liveried as Aer Lingus, the operator of these flights is the current franchisee of the Aer Lingus Regional operation. This is Emerald Airlines, who hold their own Air Operator Certificate with the Irish Aviation Authority.

    When compensation is due under EU261 due, for example, to a cancellation or a heavy delay, it is the operating airline’s responsibility to compensate passengers for the full amount due, per EU261 regulations, so long as the passenger’s claim is valid. Aer Lingus’ view is that, when it comes to compensation claims, these are due to be investigated (and, potentially, subsequently paid) by Emerald Airlines. Aer Lingus’ responsibility, in its eyes, stops at paying expenses incurred as a direct result of the cancellation.

    EU261 clearly defines the ‘operator’ (clause 7) of a flight as follows:

    In order to ensure the effective application of this Regulation, the obligations that it creates should rest with the operating air carrier who performs or intends to perform a flight, whether with owned aircraft, under dry or wet lease, or on any other basis.

    Aer Lingus’ business relationship with Emerald Airlines is a wet lease – Aer Lingus rents the aircraft and crew from Emerald Airlines – versus a dry lease, where only the aircraft is rented, and Aer Lingus would need to provide its own staff. We can, therefore, see that EU261 makes it clear that it is the operating air carrier who intends to perform the flight who is responsible for making payment.

    It has been previously suggested that airlines like this franchise arrangement as it affords them the opportunity to shirk their responsibilities. In this case, that is possible given the broad definition applied to ‘intends to perform’, as both Aer Lingus and Emerald Airlines have valid operating certificates.

    How Do You Solve A Problem Like Aer Lingus?

    My return sector started on a Thursday afternoon, having arrived from southern Ireland by car. I checked in, and passed through security, at Terminal 2. The airside situation at Dublin isn’t ideal, so I opted to wait near the gate for longer than I would ordinarily do. I’ve been to the gates in question before, and they are usually fairly busy as people wait for buses to take them to their aircraft, since DUB does not provide air bridges for ATR-72 aircraft which usually operate the Regional services.

    After some delay, gate agents advised that boarding passes had been loaded with credit for use at the Starbucks at the gate. There was no mention how much credit had been loaded, so I instead paid by card, took a receipt and opted to see if I could claim it back via EU261 (or, quite frankly, absorb it).

    Eventually, the flight was cancelled. Gate agents advised that there would be more communication from Aer Lingus in due course. We were led to arrivals and told that we should proceed back through customs and collect our baggage. Communication from the gate agent was poor, either through lack of training or lack of interest, and whilst walking back to collect luggage, I spotted that (a) I had been re-booked on to another service the next day, and (b) a Ryanair flight left from Terminal 1 in a few hours. With no offer of accommodation, sustenance or otherwise from Aer Lingus’ ground staff, and needing to be home that evening, I booked a Ryanair flight out of pocket, intending to claim this back.

    By this point, we were well over 3 hours after the flight had due to depart. The Ryanair flight timing meant that I would arrive at least three hours after my scheduled arrival, meaning that I was now due reimbursement for my Starbucks order, my Ryanair flight and my compensation.

    I put this to Aer Lingus, who admitted liability within a few days for the directly-incurred expenses, but pointed me toward the operator – Emerald Airlines – for the compensation element. Aer Lingus told me that they had raised a case with Emerald Airlines, and gave me an email address (customer.claims@emeraldairlines.com) and a case number to forward further correspondence to.

    I tried to get in touch with Emerald Airlines multiple times over nearly a month. I put it to Aer Lingus that they were, by virtue of their IATA code existing on the flight number, the responsible operating carrier. Ultimately, I gave up and raising a complaint with the Irish Aviation Authority, via their website. Once I had done this, I informed Emerald Airlines that I had submitted a complaint to the IAA. I am quite certain that, since Aer Lingus operate via wet lease, compensation is due from them irrespective of whether they have a commercial arrangement in place that knocks responsibility over to Emerald Airlines.

    Shockingly, within a few business days, I received a response from Emerald Airlines that stated that (a) they were acknowledging responsibility for the cancelled flight, and (b) that they agree that I was due compensation. They claim the long delay in acknowledgement was due to the fact that they were implementing new systems and hiring new staff, which felt a convenient answer more than a necessarily truthful one.

    I am waiting for the compensation to be received, but Emerald Airlines does have my payment details. I am keeping the case with the IAA open (I don’t expect them to start investigating, given they have admitted to having a large backlog).

    Conclusion

    In conclusion, I do not believe that passengers should have to work their way through Aer Lingus’ structure and relationships in order to claim compensation. It feels to me that this is done to disrupt the compensation flow, with a view that fewer passengers will actually claim. But, if you persist, it does appear that you can get your claim paid out, so long as it is valid.

    Godspeed! 🫡

    JDB 4,138 posts

    @AL thank you for the huge amount of work in putting this together to add to the HfP knowledge base. I think EI must have a special arrangement with Emerald, because if it were a wet lease, EI should be liable, per CJEU decision in Worth v Thomson Airways. When Stobart was the franchisee, there was a published document as to who was responsible for compensation and right to care.

    As you say it is used as an excuse for the franchisor and franchisee to pass the buck. EI/Emerald is OK because the regulator is there, SAS/CityJet is sort of solvable, but Iberia/Air Nostrum is very tricky as if you ask Iberia Regional Air Nostrum for compensation, they will say it’s all handled by Iberia (as with every other aspect of customer service) but Iberia will reject. If you take them to court they say they are independent companies and leave it at that! However, as it is essentially, for all practical purposes, a wet lease they may come unstuck. There is also another CJEU judgment that further blurs the previously understood definition of operator – CS and Others v České aerolinie a.s which is quite helpful if there is another sensible carrier (ie not Iberia) involved against whom one can make the claim.

    AL 571 posts

    Not a problem, @JDB – thank you for your continued work in putting us all straight with the legalities of EU261 and for your sage advice!

    I would think that, in the eyes of the EU, EI are the responsible operator. In my view, it shouldn’t be on the passenger to have to work out what relationships EI has with their suppliers: the operator should just pay out and, if they have a relationship that passes the buck onward, then that should be internally accounted for after recompense. Then again, I have enough of a time in my day job ‘convincing’ people of common sense, so I’m not too inclined to start petitioning EI!

    Flyer5192 1 post

    The customer.claims@emeraldairlines.com email is no longer working. I am going round in circles trying to get in touch with Emerald. Does anyone know alternate email address. Aer lingus not being helpful with this either.

    AL 571 posts

    I just received EU250 from Emerald Airlines, so from submitting the claim to receiving the payment has been 2 months and 1 week.

    AL 571 posts

    The customer.claims@emeraldairlines.com email is no longer working. I am going round in circles trying to get in touch with Emerald. Does anyone know alternate email address. Aer lingus not being helpful with this either.

    If Emerald Airlines are not being helpful, I would push the issue back on to Aer Lingus, noting that EU261 specifically calls out:

    In cases where an airline hires (under a wet lease) an aircraft including crew from another airline, the airline which hires the aircraft has operational responsibility for the flight and is regarded as the operating airline under EU rules (specifically Regulation 261/2004).

    Aer Lingus are therefore responsible.

    I could have done this with my case, but I played ball with Aer Lingus’ charades.

    JDB 4,138 posts

    @AL Aer Lingus/Emerald Airlines is a franchise agreement, not a wet lease. In many practical terms it comes to the same thing but whereas wet lease arrangements work exactly as you say, per CJEU judgment in Wirth v Thomson Airways nothing is spelt out for franchises even if they exhibit all the same characteristics. Currently litigating this point with Iberia/Iberia Regional Air Nostrum.

    Lady London 1,929 posts

    Surely in this type of complicated situation where the passenger can’t be expected to know all the legal ins and outs of various contracting/leasing arrangements, the best thing to do is name all airlines involved as defendants and let the judge sort out who’s responsible in what proportion for what?

    JDB 4,138 posts

    Surely in this type of complicated situation where the passenger can’t be expected to know all the legal ins and outs of various contracting/leasing arrangements, the best thing to do is name all airlines involved as defendants and let the judge sort out who’s responsible in what proportion for what?

    Well, that would be the easy answer, but the other airline doesn’t necessarily have a UK address for service (eg Air Nostrum). There is a CJEU case where the pax flew with Czech Airlines from Prague to Abu Dhabi connecting with Etihad on to Bangkok. The first flight was on time but the Etihad flight was heavily delayed. The pax claimed compensation from Czech Airlines, won at first instance in Prague, that was upheld on appeal, but then set aside by the Czech Constitutional Court and ultimately won in the CJEU. Could occasionally be useful to someone!

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