Airlines provided with greater clarity regarding passenger rights

Regulations (EC) No 261/2004

On 10 June 2016, the European Commission has adopted interpretative guidelines on 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 (Guidelines referenced ‘C(2016) 3502 final’).

These guidelines do not aim at creating new legal provisions but merely clarifying, on the one hand, the provisions of the Regulation, mostly in light of the decisions handed down by the European Court of Justice over the past 10 years, and, on the other hand, how and with which entity a claim based under the Regulation can be filed against an airline. These interpretative guidelines bring clarity on how the Regulation shall apply (especially regarding flight delays) and should harmonise the future decisions rendered by domestic courts.

These guidelines clarify several concepts addressed by the Regulation in order for the airlines to have a better visibility of the situations where a compensation may be due to the passenger. They also remind how a passenger can file a claim against an airline under the Regulation.

“Flight”

A round trip journey cannot be regarded as a single flight but two units of air transport. This means that when a passenger who has originally departed an airport situated in the European Union travels back to that airport, on a flight operated by a non-EU carrier, it does not fall within the scope of the Regulation.

“Denied boarding”

It is interesting to note that a situation where a passenger holding a reservation for a roundtrip flight, who did not take the outbound flight, is denied to board on the inbound flight (so-called ‘no-show’) does not constitute a denial of boarding within the meaning of the Regulation. This is a welcome interpretation, bearing in mind that it has never been adopted so far by the European Court of Justice. However, the ‘no-show’ practice, usually prohibited by the airlines’ terms and conditions, might not comply with national law.

“Cancelled flight”

This concept covers inter alia a situation where an aircraft that has taken off is forced to return to the airport of departure. Moreover, a diverted flight (i.e. “a flight by which a passenger finally arrives at an airport which does not correspond to the airport indicated as the final destination in accordance with the passenger’s original travel plan”) shall, as a matter of principle, characterise a cancellation of flight. However, it is also likely to constitute a delayed situation, from one of the following:

  • The passenger is proposed re-routing under comparable transport conditions at the earliest opportunity by the air carrier to the airport of original final destination or to any destination agreed with the passenger.
  • The airport of arrival and the airport of the original final destination serve the same town, city or region.

It is important to note that “although a flight may generally tend to be considered as cancelled when its flight number changes, it might not always be a determinant criterion”. For instance, a delayed flight departing the day after it was scheduled, and to which an annoted flight number was given to distinguish it from the flight of the same number on that subsequent day, shall not be considered as a cancelled flight but a delayed one.

“Delayed flight” and right to compensation

The length of the delay shall be determined in light of the “time of arrival”, which corresponds to “the time at which at least one of the doors of the aircraft is opened”. In case of directly connecting flights, the delay shall be assessed by taking into account the destination of the last flight taken by the passenger, bearing in mind that the compensation shall not be paid to the passenger when the missed connecting flight is due to significant delays at security checks or passengers failing to respect the boarding time of their flight at their airport of transfer. In any case, in the context of a flight departing from an airport in an non-EU country to an airport situated in the territory of a Member State, with directly connecting flights operated successively by non-EU and EU carriers, the right to compensation shall be determined only in relation to the flights operated by EU carriers.

“Extraordinary circumstances”

Regarding extraordinary circumstances (in the context of which no compensation is due to the passenger), their existence must be interpreted strictly and determined on a case-by-case basis, bearing in mind that the European Court of Justice has ruled that a technical problem which comes to light during aircraft maintenance or the collision of mobile stairs with an aircraft cannot qualify as ‘extraordinary circumstances’, as they constitute events inherent in the normal exercise of the activity of the air carrier.

“Enforcement of the Regulation”

In order to ensure that the air carriers comply with all the rules provided for by the Regulation, it is reminded that the passenger who alleges that his or her rights would have been infringed has several options:

  • Making a complaint to the national enforcement body of the country where the incident occurred.
  • Submitting the contractual dispute with the airline to alternative dispute resolution (ADR) entities established under the Regulation No 2013/11 or, if the ticket has been bought online, to the Online Dispute Resolution (ODR) platform established under the Regulation No 524/2013.
  • Filing a claim before the national courts under the Regulation, bearing in mind that the courts which have jurisdiction to deal with such a claim are the ones for the place of departure or the place of arrival or the place where the defendant is domiciled.

It is important to remember that these Interpretative Guidelines only concern the Regulation No 261/2004, for which a proposal for an amendment has been presented by the European Commission in 2013. This amendment is still under discussion and we cannot anticipate when it could be adopted.

Note: Law is accurate to the date of publication. Following the decision by the United Kingdom to leave the European Union on 24 June 2016 it is possible that there will be some divergence between UK and EU law in the future.

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