The following legislation is in force in the EU:
DBC: Regulation No 261/2004 of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
Air Carrier Liability: Regulation No 889/2002 of 13 May 2002 on air carrier liability in the event of accidents.
Air Services Regulation: Regulation No 1008/2008 of 24 September 2008 on common rules for the operation of air services in the community.
PRMs: Regulation No 1107/2006 of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.
ABTA’s input into the Commission’s work is both direct and via ECTAA.
The issues of greatest interest to us are listed below.
Over the years there have been many failures of scheduled airlines. ABTA has consistently lobbied for consumer financial protection to be extended to scheduled airlines to ensure a level playing field for Members organising package holidays both in the UK and in the EU. Despite these repeated attempts to extend consumer financial protection to all airlines, there has been great reluctance by successive governments and the European Commission to put legislation in place.
MEPs voted overwhelmingly in November 2010 in plenary session of the European Parliament for a legislative proposal to provide compensation and repatriation of passengers in case of airline failure. This has not been implemented despite great support from MEPs including written questions in the European Parliament asked by MEPs on ABTA’s behalf. The Commission prefers instead to rely on voluntary measures to airline insolvency encouraging airlines to assist stranded passengers and individual passenger travel insurance.
Regulation 261/2004 came into force in February 2005 increasing the levels of DBC payable and expanding the regulation to cover delays in addition to denied boarding and cancellation. The current levels of DBC are:
- Flights up to 1,500 km – €250
- 1,500 – 3,000 km - €400
- Over 3,000 km – €600
ABTA Members can get more information from our Member guidance.
Following its Spring 2012 consultation, in March 2013 the Commission published proposals on Air Passenger Rights, including Regulation 261 on DBC and Regulation 2027 on baggage. These have undergone a vigorous process by the European institutions (Commission, Council and Parliament) but stalled in mid-2015 due to sovereignty over Gibraltar. The principle points still at issue relate to the trigger points for delay compensation, the level of compensation, and the definition of Extraordinary Circumstances.
In the meantime, the European Court of Justice (ECoJ) has been requested by national courts to clarify certain provisions of Regulation 261. Its interpretative judgments reflect the current state of EU law and have to be enforced by national authorities. The most important decisions are:
- Sturgeon - whereby delays may be treated the same as cancellations. Passengers whose flights arrive at their final destination more than three hours late may be entitled to claim compensation from airlines for the delay unless the airline can prove that the long delay was caused by Extraordinary Circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the airline.
- Wallentin-Hermann - the ECoJ clarified that a technical problem which comes to light during aircraft maintenance or is caused by failure to maintain an aircraft cannot be regarded as Extraordinary Circumstances. Moreover, the fact that an airline has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that the airline has taken all reasonable measures to relieve itself of its obligation to pay compensation. A subsequent ECoJ decision stated that the collision of mobile boarding stairs with an aircraft cannot be considered as Extraordinary Circumstances.
- Cuadrench Moré - the time limits for bringing actions for compensation for flight cancellation under EU law are determined in accordance with the rules of each Member State on the limitation of actions, thus six years in the UK. The provisions of the Warsaw and Montreal Conventions are not deemed relevant.
The industry has serious concerns regarding these decisions which impact financially upon airlines and have unintended consequences for consumers. ABTA believes this will not only lead to increased flight cancellations to mitigate delays over three hours but also to price increases, with a consequential loss of consumer choice as marginal routes are withdrawn. ABTA has liaised with the UK airlines in making representation to Government and ECTAA has worked closely with the International Air Carrier Association (IACA).
The Commission also wishes to ensure that the National Enforcement Bodies (NEB) in each EU Member State - the Civil Aviation Authority fulfils this role in the UK – take a common approach.
The European Commission recommends that, in the first instance, passengers should contact their airline regarding a potential DBC claim. Should the airline not resolve the issue to the passenger’s satisfaction, they have the opportunity to pursue their claim through Alternative Dispute Resolution (ADR) which many airlines now offer. The Civil Aviation Authority provides a service for passengers of those airlines which do not offer ADR. It’s understood that, following the June 2016 Commission guidance, airlines are now handling claims more promptly. The CAA keeps the airline policies and procedures under review.
Some passengers turn to claims agencies. The Commission requires that such agencies must clearly display the price of their services (understood to be up to 27% of any compensation eventually paid). It’s recommended that passengers deal directly with airlines who should not withhold any of the compensation due.
The Commission announced in June 2012 that it would not make any legislative changes relating to PRMs. It issued interpretative guidelines with which the UK is largely compliant. ABTA has done a lot of work raising awareness and making it easier for PRMs to fly, through an industry group comprising the Civil Aviation Authority, Department for Transport, agents, operators, airlines, airports, PRM service providers and disability representatives.
See our guidance at https://abta.com/tips-and-latest/accessible-travel
Regulation No 1371/2007 of 23 October 2007 on rail passengers’ rights and obligations came into force on 3 December 2009. The regulation establishes a set of minimum rights for rail passengers that apply to all rail services – international and domestic. This includes information to be provided by rail companies; the liability of those rail companies and their insurance obligations for passengers and their luggage; obligations in the event of cancellation and delays; rights of PRMs to travel by rail; service quality standards; handling of complaints; and general rules on enforcement.
Regulation No 1177/2010 of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway comes into effect on 18 December 2012. The regulation applies to passengers travelling by sea and on inland waterways on passenger services (ferries) and cruises. The regulation covers information to be provided; the liability of maritime companies and their insurance obligations for passengers; obligations in the event of cancellation and delays; rights of PRMs to travel; service quality standards; handling of complaints; and general rules on enforcement.
Regulation No 181/2011 of 16 February 2011 concerning the rights of passengers in bus and coach transport comes into force on 1 March 2013. The regulation includes liability for accidents resulting in death or injury of passengers and loss or damage to their baggage; no discrimination on grounds of nationality or place of residence of the passenger; assistance and compensation in the event of delays or cancellations; assistance to PRMs; and handling of complaints.
ABTA wishes to ensure that principals comply with their obligations under the Regulations so that consumers obtain any appropriate refunds and compensation, but a balance has to be found when it comes to Extraordinary Circumstances such as long delays.