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EU to overhaul air passenger rights


Author: Arseniy Herasymiv, Attorney At Law, Ilyashev & Partners Law Firm
Source: The Yurist i Zakon

European Union takes much effort to protect air passenger rights by improving legislation. In February 2005, Regulation (EC) 261/2004 was enacted setting up common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellations, or long delays of flights. New rules introduced significant changes in the aviation market imposing restrictions on denial of boarding and cancellation practices. On March 13, 2013, the European Commission announced another package of measures to ensure new and better rights for air passengers.

There are four main reasons underlying the need for new regulations, the Commission says. Firstly, lacking definitions and unclear provisions in the text of Regulation 261/2004 leave grey zones in the passengers’ rights which have led to inconsistencies and loose standards in the application of the law. Another reason is that passengers encounter difficulties in enforcing their rights directly with the airline: many would get a brush-off by for no good reason. Thirdly, there has been a lack of response to the violations of passenger rights on the part of national authorities. Finally, the financial cost of some of the obligations imposed on air carriers is disproportionate.

Proposed amendments to Regulation 261/2004

The current Regulation 261/2004 compels air carriers to provide passengers information on their rights, but does not contain requirements with regard to the on-the-spot information on the event itself. The proposal introduces an explicit obligation to inform passengers of the situation as soon as possible and in any event no later than 30 minutes after the scheduled departure time. Air carriers must inform passengers on any changes time as soon as this information is available.

Extraordinary circumstances

An important concern is term «extraordinary circumstances» which is not clearly defined in the current Regulation. The Commission’s proposal defines «extraordinary circumstances» as circumstances which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. For example, natural disasters or strikes by air traffic controllers should be seen as extraordinary, but technical problems identified during routine aircraft maintenance should not.

Long delays and tarmac delays

The extraordinary circumstances issue is closely related to passenger rights in case of delay. Today, passengers enjoy a right to assistance for delays of 2, 3 or 4 hours depending on flight distance. Following a judgement by the European Court of Justice in case Nelson and Others v Lufthansa, they may claim compensation at delays more then 3 hours (except in extraordinary circumstances).

In case of delays, Commission says, passengers need to be given clear information as well as care and assistance while they wait. For that reason, the proposal fixes the deadline for compensation at 3 to 5 hours for all intra-EU flights of less than 3,500 km. For international flights, the deadline is 9 hours for flights of less than 6,000 km and 12 hours for flights of more than 6,000 km. The aim of the 3-hour threshold is to give the air carriers a reasonable time to solve the problem without inconveniencing the passengers too much.

The European Commission has also proposed to improve rules applicable to delays on the tarmac, i.e. where the passengers are waiting on board the aircraft. This includes to right to refreshments / meals and the right to renounce to the flight after 5 hours. In addition, the proposal gives a right, where the tarmac delay exceeds one hour, to air conditioning, to the use of toilets, to medical assistance and to drinking water.


Another issue of concern is that passengers may be stranded for a long time while waiting for rerouting with another flight of the same air carrier. At what point the carrier must allow the passenger to rerouting via another airline remains unclear. The Commission’s proposal states that, where the air carrier cannot ensure the rerouting within 12 hours on its own services, it must offer rerouting with other air carriers.

New rights

The European Commission has also proposed to consider a number of new rights. In particular, it is not clear whether a passenger whose flight has been rescheduled enjoys similar rights as passengers of delayed or cancelled flights. The proposal clearly defines this equality of treatment where the flight was rescheduled less than 2 weeks before its original departure time.

Under the proposal, the passenger may request – free of charge – the correction of spelling mistakes in his name up to 48 hours before departure.

Commission has also proposed new rights with regard to mishandled baggage. Under the proposal, air carriers must offer the passengers with reduced mobility the possibility – at no additional cost – to declare the actual value of the mobility equipment at check-in and hence to raise the carrier’s liability limits to this actual value. The proposal also deals with the issue of transporting musical instruments: air carriers must also accept smaller instruments into the passenger cabin and must clearly indicate the terms and conditions for the transport of larger instruments in the cargo hold.

Submission of complaints and Insolvency

Under the proposal, air carriers must provide forms which allow the submission of complaints right at the airport and which the air carriers must accept as valid claims. Airlines will have to provide clear complaint-handling procedures (web form, e-mail address).

Due to increased cases of airline insolvency that have taken place both in Ukraine and in the European Union, the Commission proposed a number of measures to prevent the violation of passenger rights due to the insolvency of the air carrier. Notably, national authorities will ensure appropriate monitoring of the financial position of air carriers and where necessary adopt a coordinated approach to minimise the impact on passengers. Under the proposal, programs shall be developed to help minimise those risks, particularly by offering relevant insurance and similar products that would allow passengers to protect themselves against the risks associated with of airline insolvency.

In general, the measures proposed by the European Commission live up to the trends in the aviation market and to the problems faced by passengers. On November 28, 2012, Ukraine introduced new Rules for carriage of passengers by air that are basically the implementation of the Montreal Convention (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) and Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. However, if the changes proposed by the European Commission will be adopted these recent rules may become outdated. If Ukraine signs the Common Aviation Area Agreement with the EU, these EU regulations will then be transposed in Ukrainian national legislation.

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