EC Regulation 261/2004 gives airline passengers the right to financial compensation and/or assistance in the event of flight delays or cancellations or if they are denied boarding. This regulation is now widely known, especially after the so-called Sturgeon judgment from the European Court of Justice of 19 November 2009. Since this judgment, passengers whose flights are delayed are also entitled to financial compensation instead of just assistance.
According to the European Commission, there have been many problems with application of the regulation, however, and extensive case law on the interpretation and application of EC Regulation 261/2004 has been developed both on the European and national level. For this reason the European Commission now wants to change a few aspects of the regulation which it deems important and clarify a few ‘grey areas’. To this end, on 13 March 2013 it submitted a proposed revision of EC Regulation 261/2004, to which a number of amendments have since been made. A few of the relevant changes are as follows.
First it must be more clearly established what constitutes extraordinary circumstances. This could involve labour strikes, weather conditions or technical faults. In the Wallentin-Hermann judgment the European Court of Justice decided on the details of whether and when a technical fault constitutes an extraordinary circumstance. Since that time virtually all technical problems with an aircraft have been designated as inherent to the business and as such not as an extraordinary circumstance. Even a fault that occurs after take-off, causing the aircraft to return to the airport, is not an extraordinary circumstance under Dutch case law. The new proposal clearly states that technical problems ascertained during routine maintenance of the aircraft are not extraordinary circumstances. That is not the case now either, but this clear determination may offer some possibilities when it comes to qualifying technical faults as extraordinary circumstances if the fault comes to light outside of routine maintenance.
Another important change is the delay period that entitles passengers to financial compensation. In the original proposal, the delay after which passengers are entitled to compensation was extended from 3 to 5 hours for flights within the European Union and short international flights of less than 3,500 kilometres. Passengers would be entitled to financial compensation after a delay of 9 hours for flights of more than 3,500 but less than 6,000 kilometres and after a delay of 12 hours for flights of more than 6,000 kilometres. The aim of this was to give air carriers a reasonable time period in which to solve the problem and encourage them to carry out the flight rather than simply cancel it. The current three-hour time period is generally too short to install replacement parts or arrange a replacement aircraft, according to the European Commission. Amendments have changed these time periods once again, however. According to the most recent draft the following time periods are proposed: a delay of 3 hours or more entitles passengers to compensation of € 300 for flights of up to 3,500 kilometres, a delay of 5 or more hours entitles them to compensation of € 400 for flights of 3,500 to 6,000 kilometres and a delay of at least 7 hours entitles them to compensation of € 600 for flights of more than 6,000 kilometres. These amendments, especially the minimum delay of 3 hours, honour the importance that is generally attached to passenger rights. However, given the amended flight distances in combination with the compensation amounts, the interests of the air carriers have also been taken into account. The drafters have not stuck to the original consideration that three hours is too short a time frame for air carriers to take appropriate measures to prevent further delay – as has emerged repeatedly in practice.
Clear rules are also stated for when an air carrier must offer re-routing via another carrier, for which there are no rules whatsoever at the moment. As a consequence, passengers must sometimes wait 24 hours until the next day’s flight to take them to their final destination. According to the proposal, the air carrier must ensure that this takes place within 12 hours and if it cannot, it must call on another air carrier or even other modes of transport, if there are seats available.
Finally, the new proposal defines clearly when a passenger has the right to assistance and compensation if he misses a connecting flight because of a delay in his first flight. The duration of the delay in arrival mentioned above must be referred to here, as is already done in the case law under Dutch law.
As we can see above, changes are primarily being made to the length of the delay in combination with the flight distance. The compensation amounts remain the same, but only in the event of longer flight distances are passengers entitled to higher amounts, in contrast to the current regulation. When it comes to technical faults, the new, more specific regulation may also offer air carriers more latitude than in the current regime. The Wallentin-Hermann judgment of the European Court of Justice is applied so strictly – at least in the Dutch courts – that air carriers are not given any lenience. This may change and more uniformity in the interpretation and application of the term “extraordinary circumstances” may also be introduced in Europe.
By: Christien Beernink