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More rights for air passengers

The rights currently enjoyed by air passengers and legal certainty for airline companies are both set to increase. With the European Parliament’s recent vote on a proposal to enhance existing rights, in force since 2005, the coming into force of new rights for air passengers has become more of a reality.

The proposed law seeks to ensure that air passengers are better informed about their rights. In terms of the new law, air carriers would be obliged to set up, at each airport where they operate, contact points where a staff member gives passengers information about their rights to reimbursement, rerouting and the like and in particular information about the complaints procedure to be followed in the eventuality of any complaints. Such staff member must assist passengers and take immediate action in the event of cancelled or delayed flights, denied boarding and lost or delayed baggage. When flights are delayed, air carriers would be obliged to inform passengers of the rescheduled flight time within 30 minutes of the scheduled departure time.

Community air carriers and ground handlers acting on their behalf must set up a service to provide passengers with a complaint form which allows them to lodge a complaint about damaged or delayed baggage immediately upon arrival at all EU airports where they operate. Such complaint forms must be handed out, upon request, at the check-in desks and/or at service desks and should also be available on the carrier’s website. In terms of the new law, national authorities would be responsible for enforcing compensation rules for mishandled baggage.

Statistics show that only two per cent of passengers actually get compensation after filing a complaint against an airline

The proposed law introduces the right of passengers to disembark from an aircraft in the eventuality of delays of two hours or more on the tarmac unless there are security reasons for negating such a right. Access to water and toilet facilities, adequate heating and cooling should be ensured in the aircraft cabin. After a delay of more than three hours, passengers would have the option of reimbursement, return flight or rerouting.

The compensation amounts in the eventuality of delays or cancellation as well as the trigger points for such compensation have also been revised in favour of air passengers. Thus, for example, passengers are now entitled to €300 for delays of more than three hours for short journeys which are less than 2,500km.

The proposed law also caters for the eventuality of the cancellation of a flight due to insolvency, bankruptcy, or the suspension or cessation of the activities of an air carrier. In all such cases, stranded passengers would be entitled to reimbursement, to a return flight to the point of departure or re-routing as well as to care. Air carriers would be obliged to take measures such as taking out insurance policies or setting up guarantee funds for this purpose.

Complaints to the air carrier must be lodged by passengers within three months of a flight. Air carriers would have to confirm receipt of a complaint within seven working days and respond within two months. Air carriers which fail to reply to a complaint within two months would be deemed to have accepted the passenger’s claims.

The new rules also provide much- needed legal certainty for airline companies by clarifying and limiting an airline’s responsibility in extraordinary circumstances. Basing itself on factual recent experiences, it lays down an exhaustive list of extraordinary circumstances in which compensation does not have to be paid by airlines. It is now clear that airlines would not need to pay compensation in the eventuality of a bird strike, political unrest, or unforeseen labour disputes. However, they would have to provide proof of the existence of extraordinary circumstances in written form to passengers.

In cases which involve extraordinary circumstances such as in the case of the ash cloud crisis, the new rules limit the provision of accommodation to passengers to five nights in the eventuality of delays. This serves to protect air carriers from excessive costs in situations which are totally beyond their control. The ball is now in the court of the Council of Ministers which may either accept Parliament’s position or adopt its own position and re-discuss same with Parliament.

Statistics show that only two per cent of passengers actually get compensation after filing a complaint against an airline. The endowment of national authorities with powers of enforcement ought to improve upon this. The proposed law also seeks to strike a balance between the need to enhance air passenger rights and that of industry to enjoy an amount of flexibility where compensation is concerned specifically in cases which involve force majeure.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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