across the world. Within a few days in March 2020, air traffic was almost suspended worldwide and
limited to repatriation flights. Airlines had to cancel many passenger flights. As a result, airlines faced
tremendous, unexpected uncertainty in the process of planning their networks. Implemented flight
bans and restrictions on entry to many countries resulted in a significant drop in demand and further
flight cancellations.
Current regulatory process
In 2013 the Commission proposed a revision of Regulation 261/2004 to better safeguard the
passenger rights in case of crisis. The Parliament approved the proposal; however, it has been
rejected by the Council. In February 2020 Council of the European Union published a new Proposal
for a Regulation of the European Parliament and the Council amending Regulation (EC) No 261/2004.
Unfortunately, the further process has been interrupted by the outbreak of Covid-19. In March 2020,
the European Parliament called on the Commission to return to negotiations with the Council to
update the Resolution.
Special report of European Court of Auditors
End of June 2021 European Court of Auditors published a special report, “Air passenger rights during
the COVID-19 pandemic”, which stated that airlines did not respect passenger rights adequately
despite Commission efforts.
The ECA made a good observation about missing update of Regulation 261/2004: “This 2013
proposal (…) included solutions that could have helped to better enforce passenger rights in times
of crisis, such as better complaint handling procedures, and strengthened enforcement, monitoring
and sanctioning to safeguard passenger rights.”
AIRE position
The existing legislation is not appropriate in times of crisis. AIRE agrees with the ECA that passenger
rights should be better protected. To safeguard passenger rights while balancing the airlines’
obligations, the revision of Regulation 261/2004 is immediately needed. Had the updated Regulation
261/2004 be adopted a few years ago, civil aviation would have been in a much better situation
before the crisis, and the reimbursement backlog towards passengers would not be that significant.
Therefore, AIRE requests adoption of the EC 261/2004 Commission update proposal from 2013
which was already approved by the European Parliament and incorporated the following
amendments:
- better information to the passengers on their rights,
- better enforcement of compensation for cancellations and delays,
- non-exhaustive list of extraordinary circumstances,
- change of delay threshold depending on distance,
- limitation of airline responsibility for passenger accommodation in case of extraordinary
circumstances.
We recommend one additional amendment, that compensation should be limited to the ticket price
to avoid malpractices.
The point regarding re-routing (p. 8 (1) b) should also be better specified. Neither the exciting
Regulation EC 261/2004, nor any of the amendment proposals, have included a reference to the right
to re-routing in art. 8 (1)(b) in case of delay and re-routing should not be considered as a one of
reasonable measures in the meaning of Regulation 261/2004. Courts should not value higher
whether an airline has searched for re-routing possibilities for passengers on a delayed flight than
whether the airline has undertook other measures to avoid or minimize a delay.
It should be clarified whether the time limit for submitting a complaint to the air carrier in the
proposed art. 16a is absolute and whether claims which have not been submitted to the air carrier
within the deadline set in art. 16a cannot be brought to a national court. With multiple jurisdictions
and vast differences in the Member States’ national rules regarding statute of limitation (varying
from three to ten years) and deadline for complaints (from 2 months to non-existing) for claims for
delay compensation, it is crucial to have a clear common deadline for claims for delay compensation.
Raising the amendment to Regulation (EC) No 261/2004, which needs to be discussed and accepted
without further delay, is of high importance for airlines struggling to recover.
AIRE maintains its position published in the “Joint airlines’ position on the revision of Regulation
261/2004”, co-signed in February 2020 with IATA, A4E, ERA, Airlines for America and AAC.