Ahead of the anticipated travel surge during the summer holidays, the European Commission adopted new interpretative guidelines in a bid to achieve a uniform interpretation and enforcement of EU passengers’ rights across the European Union.
These guidelines are meant to clarify passenger rights and air carrier liability arising from the 2004 EU Regulation relating to compensation and assistance to passengers in the event of denied boarding, cancellations or long delays, and the 2007 Regulation on air carrier liability in the case of accidents.
The freshly released guidelines will aid passengers in understanding their rights, and assist air carriers and their agents to ascertain their obligations and extent of liability in the eyes of the law.
Although the guidelines do not create new legal provisions, the necessity of their adoption was called for in the light of caselawof the Court of Justice of the European Union (CJEU) that changed, to a certain degree, the content and scope of current legislation. In turn this led to inconsistent application of the law across Europe. These guidelines will thus afford greater legal certainty in the industry.
For this reason they are considered as a temporary expedient until overhauls to existing legislation are made.
Specifically, the guidelines clarify that in the case of connecting flights, passengers are entitled to compensation after a delay of three hours at the final destination. Travellers who miss a connection within the EU or outside the EU with a flight coming from an airportof a member state, are entitled to compensation, if they arrive at final destination with a delay of more than three hours. Whether the carrier operating the connecting flights is an EU carrier or not is irrelevant.
Denied boarding – for various reasons such as overbooking – also carries an obligation on the airline to compensate the passenger involved. The Commission clarified that denied boarding for operational reasons would also give rise to compensation. The guidelines state that passengers are entitled to compensation when they are refused carriage on a return flight due to the fact that the operating air carrier has cancelled the outbound flight and rerouted the passengers on another flight. Similarly, boarding is considered as denied if it results from a mistake made by ground staff when checking passenger travel documents but an airline can legitimately deny boarding to passengers with inadequate travel documents. Air carriers retain the right to deny boarding for security, health or safety reasons on reasonable grounds.
Flight cancellations give rise to a right to care and a right to compensation. Compensation does not have to be paid to the passenger if the carrier can prove that the cancellation is caused by extraordinary circumstances that could not be avoided even if all reasonable measures had been taken. What classifies as extraordinary circumstances has been a thorny matter since the inception of the EU Regulation. The Commission clarified in its guidelines that airlines cannot be exempted from paying compensation in the event of technical delays. A mechanical fault of an aircraft, plane collisions with other aircraft/devices are not considered as extraordinary circumstances, and consequently airlines cannot be exempted from the payment of compensation in case of a cancellation and delay.
Similarly, a collision of mobile boarding stairs with an aircraft is not deemed an extraordinary circumstance exempting the air carrier from payment of compensation.
In the case of exceptional events, such as the 2010 Icelandic volcano eruption which closed the airspace over most of northern Europe leaving millions of passengers stranded, the Commission stated that passengers still have the right to assistance and care. This follows the ruling of the CJEU that upheld a claim brought by a passenger against Ryanair for costs of meals, hotels and transport incurred by him as a result of the flight cancellation. The concept of flight cancellation also includes the case of an aircraft that returns to its point of departure. Cancellation of flights after the aircraft is airborne for whatever reason, following which the passengers of the said aircraft are transferred onto other flights, is considered a cancellation. Even a flight that is diverted to an alternate airport is considered as a cancellation, unless passengers are rerouted to the final destination later or the alternate airport is in the same city and the transportation to the original airport is provided.
In its guidelines, the Commission explains that while air carriers have the right to upgrade a passenger, this cannot come at a cost to the passenger. Downgrading, on the other hand, must be complemented by compensation in the form of reimbursement of a percentage of the ticket price. These guidelines will apply pending the adoption of the new air passenger legislation proposed by the EU Commission in 2013. The legislative procedure in the European Parliament and Council is currently ongoing.
jgrech@demarcoassociates.com
Josette Grech is adviser on EU law at Guido de Marco & Associates.