Can you claim more than the fixed sum? Article 12 and further compensation

Compensation under Article 7 is determined by the distance of the flight, not by what the disruption cost you. In Joined Cases C-581/10 Nelson and Others v Deutsche Lufthansa AG and C-629/10 TUI Travel plc and Others v Civil Aviation Authority, decided by the Grand Chamber on 23 October 2012, the Court of Justice described loss of time as an inconvenience - not as damage arising as a result of a delay within the meaning of Article 19 of the Montreal Convention. That is precisely why the fixed-sum compensation was held to be compatible with the Convention.

The same reasoning recurs in Case C-354/18, Rusu v Blue Air, decided on 29 July 2019. The case concerned denied boarding. Blue Air offered the passengers EUR 400 each under the Regulation, but they considered that the amount compensated only their non-material damage and also claimed their lost salary. The Court of Justice answered that the amount referred to in Article 7(1)(b) is not intended to compensate damage such as loss of salary, and that such damage may instead be the subject of further compensation under Article 12(1). Fixed-sum amounts relate to damage that is almost identical for every passenger concerned, whereas individual damage requires a case-by-case assessment and can only be compensated subsequently.

The practical conclusion is straightforward: there is no point arguing for a higher fixed-sum amount than the distance gives. If you want your actual losses covered, you have to take the other route.

Article 12(1) consists of two sentences. The first states that the Regulation applies without prejudice to a passenger's rights to further compensation. The second states that the compensation granted under the Regulation may be deducted from such compensation.

What that means was tested in Case C-83/10, Sousa Rodríguez and Others v Air France SA, judgment of the Third Chamber of 13 October 2011. The Court interpreted the meaning of 'further compensation' to the effect that it allows the national court to award compensation, under the conditions provided for by the Montreal Convention or national law, for damage, including non-material damage, arising from breach of a contract of carriage by air.

Article 12 is therefore not a free-standing monetary right of its own. It is a door held open. What can be claimed, how it must be proved and how much it comes to is settled by national law or by the Convention - not by the Regulation. In practice it is a civil claim, where you normally need to be able to show both the loss and its link to the disruption. If the claim is based on the Montreal Convention, the carrier may also escape liability for damage caused by delay if it proves that it took all measures that could reasonably be required to avoid the damage, and its liability is limited to a maximum amount per passenger (Articles 19 and 22).

Article 12(2) further provides that paragraph 1 does not apply to passengers who have voluntarily surrendered a reservation under Article 4(1), that is, who gave up their seat in exchange for benefits when the carrier expected to have to deny boarding. This is, however, without prejudice to relevant principles and rules of national law, including case-law.

All of this describes Article 12 as currently worded. Regulation (EU) 2026/2202 replaces Article 12 with a new text that applies from 23 October 2027. Under it, compensation granted under Article 7 is to be deducted from compensation or a price reduction granted under other legal acts, and vice versa, if the rights concerned safeguard the same interest or have the same objective. In those cases, deduction therefore becomes mandatory. How the new rule relates to damages under national law or the Montreal Convention has not yet been tested by the Court of Justice.