The European Parliament has introduced a proposal1 to amend Regulation (EC) No 261/2004 on compensation and assistance to passengers in the event of denied boarding, flight cancellations or long flight delays. The amendments are aimed at clarifying some of the grey areas in the original Regulation, which became apparent through a number of cases which have come before the European Court of Justice since the Regulation first came into force in February 2005. The clarifications are intended to avoid the inconsistent application of the Regulation by airlines and strengthen passenger rights, while at the same time balance the economic burden on airlines under the Regulation.
One of the amendments that would have a significant effect on airlines and passengers relates to the rights of passengers to seek compensation for long delays. Under the current state of the law following the decision of the ECJ in the Sturgeon case2, any passenger who arrives at their destination 3 or more hours after the scheduled arrival time is entitled to compensation under Article 7 of the Regulation. That entitlement is not expressly provided for in the current wording of the Regulation. The proposed legislative amendments partly ratify the Sturgeon decision by expressly giving passengers a right to compensation under Article 7 of the Regulation if passengers experience a long delay. However, the draft amendments propose to extend the length of delay passengers must experience before they are entitled to financial compensation. The draft amendments would see the threshold move from 3 hours to:
- five hours for all intra-EU flights and international flights of 3,500 km or less;
- nine hours for all international flights between 3,500 km and 6,000 km; and
- twelve hours for all international flights of 6,000 km or more.
Although the proposed amendments are aimed at confirming passengers’ rights to compensation in the event of long delays, such changes to the thresholds should result in a noticeable reduction of certain delay claims against airlines. Passengers who experience delays of between 3 and 5 hours under the existing regime would lose their entitlement to financial compensation under the proposed amendments.
The draft amendments also propose to clarify when an airline is exempt from having to pay compensation due to ‘extraordinary circumstances’ beyond their control. For that purpose, the draft amendments propose to insert a new definition of the phrase which, on its face, adopts the approach of the ECJ in Wallentin-Hermann (C-549/07). It defines ‘extraordinary circumstances’ as ‘circumstances which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.’ However, the draft amendments also include in Annex 1 a non-exhaustive list of circumstances which are deemed to be ‘extraordinary circumstances’ for the purpose of the Regulation. Among other things, the list includes natural disasters, poor weather conditions and security risks rendering the safe operation of the flight impossible. The list also includes badly drafted exceptions for technical problems experienced by the aircraft. The list states that for the purpose of the Regulation, ‘extraordinary circumstances’ include ‘technical problems which are not inherent in the normal operation of the aircraft…’, but do not include ‘technical problems inherent in the normal operation of the aircraft…’.3
Despite this unfortunate drafting and apparent inconsistency, it nevertheless evinces a clear intention by the legislature to give airlines some breathing space when flights are interrupted due to unexpected technical problems. These amendments certainly favour airlines and are likely to enable them to invoke the ‘extraordinary circumstances’ exception more frequently.
Some of the other proposed changes include:
- a right for passengers to be re-routed ‘via another carrier or another mode of transport where the operating air carrier cannot transport the passenger on its own services and in time to arrive at the final destination within 12 hours of the scheduled arrival time’;4
- a partial ban of the ‘no show’ policy. Passengers who fail to take their outward journey will nevertheless be entitled to use their return journey under the same ticket;5
- an express obligation on airlines to provide passengers with information about why their flight has been cancelled or delayed;6
- confirmation that a passenger has a right to compensation under the Regulation when a flight delay causes the passenger to miss a connecting flight;7
- a right for passengers to correct mistakes to the spelling of their name up to 48 hours before departure, free of charge;8
- a number of administrative changes such as the way airlines handle complaints; and
- changes to the functions of national enforcement bodies.
1 COM (2013) 130 (final).
2 Joined cases C-402/07 and C-432/07.
3 Annex 1, (1)(ii) and (2)(i) of the proposal.
4 Article 1(8) of the proposal, Article 8(5) of the amended Regulation (EC) 261/2004.
5 Article 1(3)(b) of the proposal, Article 4(4) of the amended Regulation (EC) 261/2004.
6 Article 1(13) of the proposal, Article 14(5) of the amended Regulation (EC) 261/2004.
7 Article 1(6) of the proposal, Article 6(a) of the amended Regulation (EC) 261/2004.
8 Article 3(b) of the proposal, Article 4(5) of the amended Regulation (EC) 261/2004.
