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Passenger Rights

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Overview Passenger Rights
ERA Position Paper - Passenger Rights
CJEU Press release 17 Apr 2018 - wildcat strikes.pdf
Greek CAA requirements for processing an EU261 claim.pdf
Swiss CAA treatment of claim agency reports.pdf
Joint Associations Gibraltar Letter
IAG Guidelines on Air Passenger Rights
EC Proposal for Revision to Regulation 261/2004
Presentation: APR at European Parliament, May 2013

Latest update 22 November 2019

Overview

Please see the download section on the top right hand corner of this page to read the overview of this section and scroll down the page to read the latest updates on ERA's activities and position.

Update

Latest update 22/11/2019: To support the concerns of its members, ERA published a study last month highlighting the impact of EU261 and the negative impact on aviation safety. As a result, the study revealed a worrying erosion of the safety defenses embedded in SOPs (Standard Operating Procedures), aircraft system integrity and measures implemented to mitigate the human factor.

The European Commission is currently re-evaluating its recommendations in respect to Regulation EU261 relating to Air Passenger Compensation with an analysis by Steer.

Last week, ERA held a meeting with senior European Unions Aviation Safety Agency (EASA) representatives to discuss the regulation and other safety-related matters of concern to its members. It was interesting to learn from EASA that they would support recommendations five and six of ERA’s study:

5)         There should be a complete exoneration if delays or cancellations arise for any safety related reason (in line with the recently-approved Canadian regulation)
6)         To allow the airline enough time to perform all the necessary operational checks, the time threshold should be extended from three to five hours.

With the concerns outlined above, ERA fully appreciates there is a sensitivity issue in terms of aviation safety. It is striking that Steer carried out hundreds of interviews but did not consult with EASA. ERA has therefore recommended that the European Commission engages in written consultation with EASA before publishing any recommendations on the revision of the regulation.

14/10/2019: ERA has published a study highlighting the particular impact of EU261 on its airline members and the negative impact on aviation safety. The study has been published to compliment the current review being conducted on behalf on the EU, as this does not recognise regional carriers and therefore will not provide a proper, full evaluation. The study is available to download from the top right-hand side of this page.

Contact

For further assistance please contact policy.technical@eraa.org

ERA’s Position

ERA and its member airlines support the protection of consumers. However, the rights of consumers must strike a fair balance between protecting passengers and not unduly burden airlines and passengers with excessive regulation or costs. All players within the aviation supply chain must be liable for their actions or misconduct affecting the rights of passengers.

The airline market within Europe is de-regulated and fiercely competitive. This has resulted in more routes being developed, innovative products and technologies, lower prices and greater choices for consumers.

ERA strongly opposes the imposition of any regulation which would reduce the ability of consumers to choose different products, services and prices for air travel.

Additional regulation to control a free market would reduce and limit consumer choice, stifle innovation and increase the cost of air travel. Additional regulation will also lead to a further discrimination of air transport compared to other modes of transport. Instead, common passenger rights should be established covering the basic rights on all modes of transport.

Update

01/05/2019: Airline representatives were invited to attend a half-day session in Brussels on 18 April, held at IATA premises, as part of the fact-finding study on air passenger rights (APR) conducted by Steer on behalf of the European Commission.

As well as airline associations (IATA, AIRE and ERA), several airline representatives (Air France/KLM, airBaltic, LOT, Lufthansa Group, Air Canada, Etihad) participated in the meeting that was initiated by the consultant with the aim of gathering specific examples and gain more understanding about the current situation on APR (regulated by EU 261/2004). At the beginning of the working session, delegates from Steer informed delegates about the current status of the ongoing study and thanked everyone for their active contribution in the stakeholder consultation, including ERA and its member airlines. The discussion was grouped around the following agenda topics: monitoring and enforcement, ADR, claim agencies, experience with airports and ground handlers and PRM issues. Steer was particularly interested to discuss examples of different approaches to enforcement, different interpretations of the regulation/application of CJEU case law, different assessment of extraordinary circumstances, imposition of sanctions etc. that all contribute to a fragmented enforcement of APR. Understanding the situation in member states with a combined NEB/ADR that can address individuals’ claims working for airlines, compared to other member states that have multiple separate bodies to deal with, was also brought to the table. Further questions aimed at reviewing/assessing how extraordinary circumstances vary by NEB and what difficulties this involves. Representatives also exchanged views on how the interaction with claim agencies works in practice, varying depending on size, approach or on the different jurisdictions. The last agenda topic was dedicated to care and assistance provision with a special focus on PRMs (also in light of the Commission’s planned revision of the PRM interpretative guidelines).     

27/04/2018: On 17 April 2018 the CJEU ruled that a ‘wildcat strike’ by flight staff following the surprise announcement of a restructuring does not constitute an ‘extraordinary circumstance’. See the press release from the CJEU which is available for download at the top of this page.

09/04/2018: As highlighted at the recent ERA Industry Affairs Group meeting in Brussels, the processing of EU261 claims can be difficult to validate when addressed directly to the airline, and even more so with the involvement of a claim agency, not only for the airline affected but also the competent authority at national level. Having had several Power of Attorneys from claim agencies with ‘obviously forged signatures’, infringements on consumer protection, marketing and data protection law, the Swiss Federal Office of Civil Aviation and the Hellenic Civil Aviation Authority have introduced guidelines to be followed before a claim will be processed.  ERA would like to encourage its member airlines to lobby with their respective NEB (see list: https://ec.europa.eu/transport/sites/transport/files/2004_261_national_enforcement_bodies.pdf), to follow similar paths as the Greek and the Swiss competent authorities. See the documents available to download from this page.

A suggested text that member airlines could follow will be sent to airline IAG representatives with ERA to further lobby Transport Committee members on the initiative.

ERA’s Industry Affairs Group has been carefully following EU261 developments for a number of years and would like to draw the following brief to our members attention. The European Court of Auditors is examining the actions taken by the Commission in the field of passenger rights: the possible inconsistencies between regimes in different modes of transport, the way passengers are informed about their rights and the way they are enforced throughout the EU. This audit will be finalised by the end of 2018 and the recommendations will be published in the Official Journal.

https://www.eca.europa.eu/Lists/ECADocuments/AB_PASSENGER/AB_PASSENGER_EN.pdf

ERA works closely with industry bodies and associations with regards to the matter and note that IATA has offered the following points on the brief by the ECA:

  • Page 4: there was an EU regulation for air passenger rights (limited to denied boarding) already in 1991 (Regulation 295/91).
  • Page 7: Regulation 261 does not give right to re-routing in cases of delay (whether the delay is more than 5 hours – as per a footnote - or less). There are very good reasons for this and there was no intention to change it in the EC proposed revision.
  • Page 6: in our view, public awareness of passenger rights is not something that can be measured by the claim rate. There are many reasons why a passenger, even though he is well informed about his rights and fully aware of them, does not claim for their application. To cite but one example: we know that if passengers are kept well informed about the reason and the length of a disruption and if they receive the right assistance, they will not necessarily claim for a compensation, even if a regulation gives them the right to do it.

The Industry Affairs Group within ERA will continue to monitor any further developments at EU level pertaining to EU261.

On 4 May 2017, the European Court of Justice (ECJ) ruled that bird strikes are extraordinary circumstances. This is a positive development in favour of airlines and means that operators are not obliged to pay compensation if a long delay (more than three hours) or cancellation is caused by bird strike.

The judge ruled that bird strikes are "neither intrinsically linked to an aircraft’s operating system nor inherent in a carriers’ normal activities".  This judgement went against an earlier ruling in a court, on a national level, and is a position long supported by the airline industry.

The full ECJ ruling can be found here.

On 22 March 2017, ERA submitted members' comments to the European Commission, together with other airspace user organisations, encouraging the Commission to publish guidance to passengers regarding the so called ‘claims farms’ following a number of allegations of incorrect practices and misbehaviour by some claim agencies.

This guidance has now been published on the Commission's website here and members are encouraged to put this link on their own websites for their passengers information.

In summary, the guidance details that:

Passengers should always try first to contact the airline before considering any other action. In addition, National Enforcement Bodies, which are public authorities responsible for the enforcement of passenger rights rules at national level, exist in all member states. They can be contacted freely and can provide all necessary information. Alternative Dispute Resolution processes can also help to mediate between passengers and air carriers.

The notice reminds passengers who have a claim to contact the airline first and it draws their attention to the following key legal obligations of claim agencies:

  • Claim agencies must clearly display the price of their services, i.e. showing an initial price on their website which includes all applicable fees.
  • Claim agencies must be able to produce a clear power of attorney, i.e. a lawyer entitled to practice such profession.
  • Claim agencies should not resort to persistent unsolicited telemarketing.
  • No ticket vendor, tour operator or travel agent is allowed to transmit the passenger personal data to claim agencies, unless specifically permitted by the passenger.

On 13th August the European Commission sent the European Parliament its opinion on the Parliament’s first reading position on the new Air Passenger Rights Regulation. The document outlines in detail the Commission’s stance on each of the over 160 amendments adopted by MEPs during a Plenary vote in February this year.  The European Parliament is keen to start negotiations with the Council as soon as possible after the recess, but the EU Member States have not so far agreed on a common position that would allow inter-institutional negotiations to start. The industry position seems to be endorsed by the Commission in some crucial areas of the proposal, namely on: requirements for insolvency insurance and/or guarantee fund for stranded passengers; airline liability to delays caused by other modes of transport; Re-routing in case of delays; Liability of carriers for delays caused by other modes of transport in multimodal journeys; Definition of technical problems as “extraordinary circumstances”; Delay thresholds triggering compensation; Compensation levels for short-haul flights; Cap for hotel nights accommodation in case of extraordinary circumstances; Exemption from accommodation obligations for very short regional routes (<250 kms); provision of extensive information to NEBs on all technical problems occurred; Cabin baggage allowance; no show policy; right of redress to recover costs from third parties causing disruption.On the other hand, the Commission’s views are not aligned with the industry’s in the following subjects: Compensation in case of missed connecting flights; Re-routing on another air carrier/transport mode if expected delay at destination is more than 8 hours (iso 12 hrs); Obligation for carriers to inform the passenger, within 30 minutes after the scheduled departure time, whether it will transport the passenger on its own services; Right for passenger to refuse re-routing on other transport mode; Lack of EU-wide statutory limitation of 2 years for civil-law claims.On 13th August the European Commission sent the European Parliament its opinion on the Parliament’s first reading position on the new Air Passenger Rights Regulation. The document outlines in detail the Commission’s stance on each of the over 160 amendments adopted by MEPs during a Plenary vote in February this year.  The European Parliament is keen to start negotiations with the Council as soon as possible after the recess, but the EU Member States have not so far agreed on a common position that would allow inter-institutional negotiations to start. The industry position seems to be endorsed by the Commission in some crucial areas of the proposal, namely on: requirements for insolvency insurance and/or guarantee fund for stranded passengers; airline liability to delays caused by other modes of transport; Re-routing in case of delays; Liability of carriers for delays caused by other modes of transport in multimodal journeys; Definition of technical problems as “extraordinary circumstances”; Delay thresholds triggering compensation; Compensation levels for short-haul flights; Cap for hotel nights accommodation in case of extraordinary circumstances; Exemption from accommodation obligations for very short regional routes (<250 kms); provision of extensive information to NEBs on all technical problems occurred; Cabin baggage allowance; no show policy; right of redress to recover costs from third parties causing disruption.On the other hand, the Commission’s views are not aligned with the industry’s in the following subjects: Compensation in case of missed connecting flights; Re-routing on another air carrier/transport mode if expected delay at destination is more than 8 hours (iso 12 hrs); Obligation for carriers to inform the passenger, within 30 minutes after the scheduled departure time, whether it will transport the passenger on its own services; Right for passenger to refuse re-routing on other transport mode; Lack of EU-wide statutory limitation of 2 years for civil-law claims.What we are planning
The revision process of EU Regulation 261/2004 on Air Passenger Rights is far from complete. Following adoption of the Parliament position, the EU member States (Council) must agree its own position before the final law is adopted. ERA will continue to lobby to redress some of the key areas of concern emerging from the recent Parliament’s vote. The September ERA’s Industry Affairs Group has discussed a draft document that includes best practice advice to minimise potential claims, based on member’s own experiences. The Guidelines have now been finalized and posted on the ERA website for ‘members only’.
Timescales
Following the inability of the Council to reach a general approach before the summer, the Italian Presidency (July-December 2014) is expected to continue talks within the Council’s aviation working party in the autumn, possibly with a view to agreeing a general approach at a meeting of EU Transport Ministers in r December.  The final Air Passenger Rights Regulation is expected to be adopted in 2015 at the earliest, with the new rules entering into force in 2016-17. The last Industry Affairs advisory Group, that took place in London on 9-10 September, represented another good opportunity for ERA members to share their main concerns on the on-going revision process of Air Passenger legislation and to further steer the Directorate’s lobbyin