Air transportation: boarding denied, flight cancellation and delays

Passenger rights in air transportation in case of denied boarding, flight cancellation and delays are included in the (EU) Regulation n. 261/2004 dated February 11th 2004. This Regulation regards passenger rights for compensation as well as the airline’s obligations for passengers’ assistance in the abovementioned cases. Nevertheless, the Regulation does not provide any information on how much time passengers have to assert their rights, which leads us to consider whether the claims made by the passengers should abide by the general limitation period of 5 years determined by the Civil Code, or by the limitation period of 2 years provided for in the Montreal Convention on the international air carriage of passengers.


The Court of Justice of the European Union, in its judgment dated November 22nd 2012, confirms that the time limit for the execution of compensation claims provided for in the Regulation must be determined in accordance with the regulation of each Member State, as far as the time bar for action is regarded, adding that the established scheme in the Regulation is autonomous and different from the Montreal Convention regulation. This has led to the fact that our judicial organs have progressively adhered to the applicability of the general limitation period provided for in the Civil Code, as shown, for instance, by the High Court of Madrid (Audiencia Provincial de Madrid) in its judgment dated June 6th 2014, or the Mercantile Court (Juzgado de lo Mercantil) n. 1 of Bilbao in its judgment dated November 17th 2015, among others.

Notwithstanding the above, we are still facing a controversial issue since some Courts apply, without hesitation, the Montreal Convention period (for example, Mercantile Court n. 3 of Vigo, Judgment dated March 3rd 2016). However, in these cases it will still be necessary to clarify the exact nature of the limitation period of 2 years provided for in the Convention (and applicable to passenger transportation as well as to transport of goods) in order to determine to what extent it may be interrupted and if it may be considered by Court ex officio, an issue that still has not been settled in a satisfactory way by our judicial organs and that, given its importance, will be subjected to subsequent analysis.