Imagine you're travelling with a baby and your flight is delayed or cancelled - you get your €250-€600 in compensation from the airline, but what about your child? Your baby didn't have a separate seat or its own e-ticket, but you may have paid an additional fee when making the booking so that your baby can fly with you.
Infants are not mentioned in Regulation 261/2004 - it is only Article 3(3) that implicitly refers to the rights of infants (i.e. passengers flying for free or on reduced fares not directly or indirectly available to the public). According to this article, the Regulation is not applicable to passengers travelling free of charge or at reduced fares not available directly or indirectly to the public.
I paid an additional fee for my child
What if your child did not travel "for free", as you had to pay an additional booking fee? This particular question has not yet been tested in the Court of Justice of the European Union, but there are a few national court cases which follow the following reasoning – no compensation for a ticketed lap child unless a fare has been paid for it and if such fare was available to the public. Two of the cases deal with Ryanair’s so called "administrative charge" for infants and whether this administrative charge constitutes an airline fare.
In both decisions, Joshua Baldwin (A Child) v Ryanair Ltd (2015) and Vago & Ors v Ryanair Ltd (2016), the County Court at Liverpool has held that infants carried in the arms of another passenger were not fare-paying passengers themselves, but had in fact travelled for free.
As a consequence, the infants were not eligible for the fixed compensation available to fare-paying passengers under the Regulation.
In both cases, the infant claimants flew with the airline after an adult passenger in the same party paid a small charge of around €20/€30. Ryanair argued that this was simply an administrative charge, not a fare, and that the infants had in fact travelled for free.
In Baldwin, the court found that the charge was an administration charge and not a fare. The Court looked at the reality and not the terminology. The airline could simply re-brand all their “fares” as “service/administration charges” thereby circumventing the flight regulation. The Court also found that the claim would in any event be excluded by Article 3(3) on the basis that he was not travelling on a fare available to the public as the facility was “only available to children who meet the specified age criteria travelling in the arms of an adult.”
My baby was travelling free of charge
On March 17, 2015 the German Supreme Court (BGH) passed a judgment relating to an infant flying free of charge with the parents. As the flight was delayed for more than 6 hours at arrival a law suit was filed for compensation pursuant to Regulation 261/2004. However, the claim failed to succeed and was dismissed in all instances because of Article 3 of the Regulation. The Supreme Court could not be convinced by the plaintiff's argument that the exemption would not apply if the free admission was available to any infant and thus had to be regarded as a "fare available to the public".
As a matter of principle, supported by the reasoning of judges in a few national court cases, infants with no seat flying free of charge fall outside the scope of the Regulation. In cases where airlines require a so called “administrative charge” to be paid for infants flying with no seat, then the level of charge needs to be assessed on case by case basis and compared with the applicable fares for non-infants. If the charge is excessively high, comparable to the non-infant fares, the cases may be pursued without a guarantee for success in the small claims courts with jurisdiction.