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Advantages and disadvantages of the proposal for a Regulation of the European Parliament and the Council amending Regulation (EC) No 261/2004 presented at the Travel Law Forum 2018

Celestyal Cruises

Evanthia Kardoulia
Attorney-at-Law, member of the Athens Bar Association
Ph.D. Candidate in Tourism Law, Aristotle University of Thessaloniki
LL.M. in Tourism and Tax Law, Université Paris 1 Panthéon-Sorbonne

During the first panel of the Travel Law Forum, which took place in N.J.V. Athens Plaza, on Friday, March 16th, 2018, Mrs Monique De Smet, Regional Director for Europe in International Air Transport Association (IATA), presented IATA’s position on the proposal for a Regulation of the European Parliament and the Council amending Regulation (EC) No 261/20041. During the second panel of the Travel Law Forum, Mrs Victoria Nguyen, Manager of Overall Strategy and Air Traffic Rights in Lufthansa Group, gave a presentation on the process of law making, entitled: “The Challenge to amend Regulation 261 – Passengers’ needs and airlines’ responsibility to cater that need”. Following these two very interesting presentations, I hereby present the key elements that constitute the EU Commission’s proposal.

Originally, the main reasons that led to this proposal for a revision of Regulation (EC) No 261/2004 were to make passenger rights clear as well as to make passenger rights simple to implement. In addition to this, the need to ensure legal certainty combined with fair balance of consumer and industry interests contributed to the proposed revision of Regulation (EC) No 261/2004.

The EU Commission’s proposal includes changes regarding: a) the definition of “extraordinary circumstances”2 (Annex 1 of the proposal gives a non-exhaustive list of circumstances considered as extraordinary circumstances for the purposes of the Regulation), b) the right to compensation in case of long delays3, c) the right to re-routing4, d) the right to care5, e) missed connecting flights6, f) tarmac delays7, g) partial ban of the “no show” policy8 and h) rescheduling9 and information10 to passengers.

Furthermore, the EU Commission’s proposal contains various positive elements as it clarifies the current rules, provides a list of extraordinary circumstances, enforces the right of redress and provides contingency plans in case of massive disruptions. Additionally, the EU Commission’s proposal re-balances passenger rights with airline obligations, by triggering points for compensation after long delays as well as by providing for time limitation for assistance in case of extraordinary circumstances. Thus, the right to compensation in case of delay will arise after five (5) hours for all journeys within the EU. For journeys to/from third countries, taking into account the particular problems encountered by air carriers to handle causes of delays at remote airports, these thresholds will be made dependent upon the journey distance: five (5) hours for extra-EU journeys of 3500 km or less, nine (9) hours for extra–EU journeys between 3500 and 6000 km and twelve (12) hours for extra-EU journeys of 6000 km and more. If the operating air carrier can prove that the cancellation, delay or change of schedule is caused by extraordinary circumstances and that the cancellation, delay or change of schedule could not have been avoided even if all reasonable measures had been taken, it may limit the total cost of accommodation provided to EUR 100 per night and per passenger and to a maximum of three (3) nights. If the operating air carrier chooses to apply this limitation, it shall nevertheless provide the passengers with information about available accommodation after the three (3) nights, in addition to the continued obligations for information.

Moreover, the EU Commission’s proposal gives real additional rights. For instance, where currently the time threshold for care is dependent on the flight distance (2, 3 or 4 hours), the EU Commission’s proposal simplifies by introducing a single time threshold of two (2) hours for flights of all distances. Also, the EU Commission’s proposal complies with the proportionality principle. Any additional costs for economic operators and national authorities are limited to those necessary to improve the application and enforcement of passengers’ rights. Cost increases related to the provision of care and assistance or to compensation in case of long delays are offset by modifications in the time thresholds giving rise to the right to compensation. In addition to this, the information given to passengers shall be better and correct and any spelling mistakes shall be corrected.

On the other hand, the EU Commission’s proposal possesses certain negative elements, such as the fact that it sends a bad signal on safety issues, creates “false” passenger rights and the definition of a delay at final destination jeopardizes interlining and regional connectivity. With regard to safety issues, diversions should not be cancellations and inherent technical problems can be considered as extraordinary circumstances (i.e. lightning strikes). Regarding “false”passenger rights, the partial ban of the “no show” policy would lead to higher prices and more overbooking/directional imbalances.

Concluding, there is a concern about the fact that the revision of Regulation (EC) No 261/2004 has been blocked by the status of Gibraltar’s airport, mainly in result of the dispute between Spain and the UK over the inclusion of Gibraltar’s airport in the Regulation. Therefore, I believe that there is a need to separate the revision of Regulation (EC) No 261/2004 from the political file in order to establish a better and more efficient passenger rights legal framework.


1 Proposal for a Regulation of the European Parliament and the Council amending 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 and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air (COM/2013/0130 final – 2013/0072 (COD).

2 The EU Commission’s proposal clearly defines the term in line with the European Court’s decision in the case C-549/07 (Wallentin-Herman), i.e. circumstances which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. Furthermore, for further legal certainty, the proposal introduces a non-exhaustive list of circumstances to be regarded as extraordinary and of circumstances to be regarded as non-extraordinary.

3 The EU Commission’s proposal explicitly introduces the right to compensation in case of long delays – as announced by the ECJ in the joined cases C-407/07 and C-432/07 (Sturgeon) – into the text of Regulation (EC) No 261/2004. However, to avoid an increase in cancellations (which are in general more inconvenient to passengers), the time threshold after which the right to compensation arises is proposed to be increased from three to five hours for all journeys within the EU. While a single threshold is proposed for the EU, for journeys to/from third countries, the threshold will be made dependent upon the journey distance to take into account the practical problems encountered by air carriers when addressing the causes of delays at remote airports

4 The EU Commission’s proposal clarifies that if the air carrier cannot reroute the passenger on its own services within twelve (12) hours, it must consider other carriers or other transport modes, subject to seat availability.

5 The EU Commission’s proposal introduces a single time threshold of two (2) hours for flights of all distances.

6 The EU Commission’s proposal confirms that passengers that miss a flight connection because their previous flight was delayed have a right to care (to be provided by the operating air carrier of the missed flight which is best positioned to provide this care) and, under certain circumstances, a right to compensation (to be provided by the air carrier operating the delayed flight as it was at the origin of the total delay). However, such right would only apply where the connecting flights are part of a single contract of carriage as in that case the air carriers concerned have committed to and are aware of the intended connection between the flights. The air carriers retain the right to agree on distributing costs between themselves.

7 The EU Commission’s proposal clearly sets out the rights of passengers when their aircraft is delayed on the tarmac, in particular a right to disembark after five (5) hours (in line with the right to reimbursement).

8 The EU Commission’s proposal confirms that passengers may not be denied boarding on a return journey of the same ticket on the grounds that they did not take the outward journey. However, such ban does not affect the right of airlines to impose particular rules with regard to the sequential use of flights within a same journey. The Commission decided against a full ban of the “no show” policy because it would impair airlines from offering indirect flights at lower prices than direct flights and therefore hurt competition

9 The EU Commission’s proposal confirms that passengers of flights rescheduled with a notice of period of less than two (2) weeks in advance of the originally scheduled time have similar rights to delayed passengers.

10 The EU Commission’s proposal points out that passengers should have a right to information about the flight disruption as soon as the information is available.

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