Published on June 27th, 2016 | by Jim Lee0
European Commission publish new guidelines clarifying Regulation (EC) No 261/2004 on passengers rights
On the 10th June, the European Commission published newly adopted guidelines, which clarify the existing rules on air passenger rights in the European Union and facilitate their application, for the benefit of travellers and businesses. As millions of European citizens prepare to travel over the summer period, the Commission wants better enforcement of rules, ahead of summer holidays and is taking action for the better enforcement of air passenger rights in the European Union.
In a statement, the Commission say that this is yet another deliverable of the Aviation Strategy for Europe, adopted by the Commission in December 2015, to strengthen the competitiveness of European aviation, and maintain the highest standards.
In a comment, EU Commissioner for Transport Violeta Bulc said: “Transport is first and foremost about people, and I am proud that the EU protects its passengers across all forms of transport. The guidelines published today will bring further clarity and legal certainty to ensure that the rules are applied properly. All EU citizens travelling by plane should receive the level of protection they are entitled to.”
The EU’s Air Passenger Rights legislation is said to be amongst the most advanced in the world, offering a high degree of protection against unforeseen circumstances to people travelling by air, to and from the EU. However, Regulation (EC) No 261/2004 – establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights – which entered into force in February 2005, has proved problematical and has been subject to various interpretations, leading to conflict and frustration. This has led to legal challenges in a number of member states and ultimately in the Court of Justice of the European Union (CJEU).
However, a number of judgements of the CJEU have, affected the content and scope of the legislation since it entered into force in 2005. A clarification was therefore needed for travellers, airlines, and the national authorities, which are in charge of making sure the rules are properly applied at national level.
The new guidelines summarise the existing case law and consolidate all ongoing practices. Of particular relevance are:
- Compensation for a delay: the right to compensation after a delay of three hours at the final destination.
- Compensation for a missed connecting flight: the right to compensation in case of a long delay on arrival due to missed connecting flights.
- Extraordinary circumstances: various situations such as technical defects linked to the premature malfunction of certain components of an aircraft or aircraft collisions with other aircraft/devices whereby airlines cannot be exempted from the payment of compensation in case of a cancellation and delay.
- Measures to be taken in extraordinary circumstances: the right to assistance and care during exceptional events such as the ash cloud in 2010.
The interpretative guidelines also make important clarifications in the following areas:
- Conditions for compensation for delays at final destination
- Conditions under which a diverted flight is considered as a cancellation
- Confirmation that delays and cancellation are distinct events.
The guidelines will apply pending the adoption and entry into force of the new Air passenger legislation, proposed by the Commission in 2013. The objective of this proposal was to clarify certain aspects of the current Regulation and to introduce new passenger rights, where necessary.
The guidelines will also help facilitate air travel for passengers, and thus assist air carriers and their agents to improve the application of the Regulation and will assist national authorities with the enforcement of the Regulation and ensure an equal level playing field for all air carriers. The legislative procedure in the European Parliament and Council is ongoing.
IATA welcomes clarity on EU Passenger Rights but fundamental changes still needed
In a statement on 10th June, the International Air Transport Association (IATA), welcomed the publication of Interpretative Guidelines on Regulation 261/2004 by the European Commission, which it believes brings greater clarity to the European Union’s passenger rights regulation. This it sees as an important “stop-gap measure until critical reforms to EU 261/2004 are implemented”.
“A transparent and level playing field is important for passengers and airlines. Today’s interpretative guidelines are an important step to ensure that EU 261 is applied with greater consistency across Europe. The industry’s issues with EU 261, however, remain unsolved. Revisions to the regulation proposed in March 2013 would help to provide a better balance between passenger rights and airline obligations. But they are being held in limbo as a result of a deadlocked dispute between Spain and the UK over Gibraltar,” said Tony Tyler, IATA’s Director General and CEO.
The IATA statement is critical of EU 261, which it said from the start, “contained ambiguities which resulted in inconsistencies in how the regulation was applied across Europe”. It noted that not only did the CJEU, affect the content and scope of the legislation, it actually expanded the scope of the regulation and created further inconsistencies, when applied.
While the interpretative guidelines will bring greater clarity for passengers and airlines, they are not a substitute for revisions proposed by the EC in March 2013 which will address some of the fundamental flaws in EU 261. These proposals include:
- Time limitations on the provision of care and assistance in extraordinary circumstances beyond the control of the airline
- The introduction of “trigger times” for delay compensation that vary by flight length
“Everybody is frustrated when travel plans are disrupted. Passenger rights should be fair, simple consistently applied and aligned with global standards. Todays’ guidelines will help with the consistent application. That’s an important step, but follow-up is needed. Many of the March 2013 proposals are welcome but on top of that, more dialogue is needed to address remaining fundamental problems with the regulation,” said Mr. Tyler.
“The industry’s support and concerns with the March 2013 proposals were outlined in a press release. IATA, with a coalition of European regional airline associations, continues to work constructively with the EC, the European Parliament and the Council towards the much-needed revisions of Regulation 261 to serve better the interests of both passengers and airlines in alignment with global standards,” said the IATA statement in conclusion.
Current rights of EU Passenger Rights affected by flight cancellations and long delays
Sustained disruption by French Air Traffic Controllers during the year, led to the Commission for Aviation Regulation (CAR), providing clarifications and information in a statement on 1st June, for passengers affected. This was in advance of the planned strike action, which affected French airports and flights in, or through French air-space, in June. CAR reminded passengers, that should their flight be delayed or cancelled, as a result of this strike action, that they should be aware of their rights and entitlements. See here
In the event that a passenger’s flight being cancelled, the air carrier must offer the choice between the following:
– re-routing as soon as possible:
– re-routing at a later date at your convenience: or
– a refund.
Where a passenger chooses the first option (re-routing as soon as possible), then the air carrier must provide care and assistance, while the passenger waits for the alternative flight. Care and assistance comprises:
– meals & refreshments in reasonable relation to the waiting time;
– hotel accommodation where an overnight stay becomes necessary;
– transport between the hotel accommodation and the airport;
– two free telephone calls/ access to email.
Where a flight is subject to a long delay (two hours plus), the air carrier must provide passengers with the care and assistance described above. In addition, if the flight is delayed by more than five hours, the airline must offer the choice between:
– continuing with the journey: or
– a refund of the cost of the ticket.
It should be noted that it is not possible for passengers to travel and avail of the full refund.
If the air carrier does not provide the care and assistance described above, passengers should make their own reasonable arrangements and retain all receipts in the process. Passengers are advised to then submit copies of these receipts to their air carrier for reimbursement.
In both situations (i.e. flight cancellations and long delays), air carriers should provide affected passengers with written notices, setting out their rights and entitlements, under EC Regulation 261/ 2004.
CAR notes however, that “generally cancellations which arise directly from strikes that affect the operation of an air carrier are regarded as exempt from compensation” (the famous ‘extraordinary circumstances beyond the control of the airline’ clause), it adds rather confusingly that, “compensation may be payable to passengers affected by flight cancellations or long flight delays as a result of this strike action” however “that an investigation will be required to determine this”. Its statement concludes that “in situations where an air carrier is unable to provide a suitable alternative flight and passengers travel at their own expense with an alternative air carrier, the original air carrier’s liability is limited to a full refund of the original flight costs”.
Passengers who remain unclear about their entitlements as set out in EC Regulation 261/ 2004, or who have further queries in relation to same, are advised to contact CAR on 1890 787 787 or + 353 1 6611700.