The EU recently adopted new guidelines that clarify the existing rules on air passenger rights. The scope of these guidelines is also to ensure better application by air carriers and to help national authorities with the enforcement of the Air Passenger Rights Regulations to guarantee an equal level playing field for all air carriers.

These guidelines consolidate a number of judgements of the Court of Justice of the EU, which have affected the content and scope of Regulation 261/2004 on air passenger rights. Among the most important judgements, there is the ruling that entitles passengers who suffer long delays of three hours or more to the same financial compensation as if their flight was cancelled by the air carrier.

The European Court of Justice also ruled that the delay that should be taken into account is the delay at arrival, including flight connections. The court ruled that it does not matter whether the delay occurred at the departure airport, at the connecting airport (s) or any stage of the journey – only the delay at the final destination of the journey is relevant for the right to compensation.

Financial compensation, however, cannot be claimed if the long delay was caused by an extraordinary circumstance that could not have been avoided by the air carrier even if all reasonable measures had been taken. In a ruling, the European Court of Justice clarified that a technical problem which becomes evident during aircraft maintenance or is caused by failure to maintain an aircraft cannot be regarded as an extraordinary circumstance.

The court also sustained that the fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that the air carrier has taken all reasonable measures to relieve itself of the obligation to pay compensation.

The new guidelines also clarify that in situations of delays and cancellations due to extraordinary circumstances, the air carrier is still legally obliged to provide care to passengers, which is proportionate to the waiting time. This care should include refreshments, meals and, where appropriate, hotel accommodation and transport between airport and place of stay, as well as means of communication with third parties.

Regarding the concept of cancellation, the guidelines clarify that a situation in which an aircraft takes off but was subsequently forced to return to the airport of departure and then transfer passengers to other flights, also qualifies as cancellation and passengers are entitled to financial compensation.

These guidelines will apply pending adoption and entry into force of the new air passenger rights legislation proposed by the European Commission in 2013.

odette.vella@mccaa.org.mt

Odette Vella is director, Information, Education and Research Directorate, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.

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