10 Compensation for air passengers
| (28573)
8708/07 + ADD1
COM(07)168
| Commission Communication pursuant to Article 17 of Regulation (EC) No 261/2004 on the operation and the results of this Regulation establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights
|
| Legal base | — |
| Document originated | 4 April 2007
|
| Deposited in Parliament | 26 April 2007
|
| Department | Transport |
| Basis of consideration | EM of 9 May 2007
|
| Previous Committee Report | None
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| To be discussed in Council | Not known
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| Committee's assessment | Politically important
|
| Committee's decision | Cleared
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Background
10.1 Regulation (EC) No. 261/2004[25]
provides for assistance and compensation to air passengers in
the event of denied boarding, cancellation or long delay to flights.
It applies to all flights from and within the Community and those
departing a third country and arriving at a Member State operated
by a Community carrier. Depending on the circumstances the Regulation
requires airlines to:
● provide
assistance in the form of accommodation, refreshments, meals and
communication facilities;
● offer
refunds or re-routing;
● pay
compensation of up to €600 (£400) per passenger; and
● inform
passengers about their rights under the Regulation.
The document
10.2 In this Communication the Commission, as required
by Article 17 of Regulation (EC) No. 261/2004, reports on the
operation and results of the Regulation. The objective is to assess
the extent to which airlines are complying with the Regulation
and to investigate whether the enforcement process is working
effectively. The Communication is accompanied by a staff working
document providing statistics to support the conclusions drawn
in the Communication.
10.3 The Commission:
● assesses
the extent to which airlines are complying with the Regulation
in the case of a cancellation, delay or denied boarding and whether
the quantity of cancellation, delays or instances of denied boarding
has changed as a result of the Regulation;
● says
that there are no publicly available statistics on the number
of instances of denied boarding and most airlines have refused
to provide information on this issue. It concludes that problems
are usually resolved on the spot as the obligation to call for
volunteers if flights are overbooked has resulted in more flexibility
for airlines and passengers;
● points
out that it is often difficult to distinguish whether a flight
has been delayed or cancelled;
● reflects
a concern that some airlines may reclassify cancellations as delays,
thereby affecting the payment of compensation;
● notes
that, as the Regulation does not define delay, there is confusion
concerning airlines' obligations with respect to delays over 24
hours;
● says
that in relation to cancellations there is a suspicion that airlines
use the "extraordinary circumstances" exclusion of the
Regulation too often, so allowing carriers to avoid to pay compensation,
but that the definition of "extraordinary circumstances"
has been found to be difficult to interpret;
● finds
that the levels of assistance given to passengers in the event
of delay vary greatly depending on the carrier and the facilities
at the airport. Airlines sometimes claim "extraordinary circumstances"
as an exclusion to the requirement to provide refreshments or
accommodation, even though there is no such exclusion in terms
of the provision of refreshments and accommodation — airlines
have a duty to provide refreshments and accommodation no matter
what the reason for the cancellation or delay;
● says
there is confusion regarding the practice of re-routing, which
is offered as an alternative to a refund in the event of denied
boarding or cancellation. The Regulation does not specify whether
re-routing should be only via the same carrier from which the
passenger purchased the flight, another carrier or via surface
transport;
● notes
that there is little statistical evidence available to suggest
that airlines are not complying with the Regulation and that most
evidence to support non-compliance is anecdotal and comes from
passenger complaints to National Enforcement Bodies (NEBs —
designated by each Member State to enforce the Regulation);
● is
unable to reach a conclusion as to whether the Regulation has
had a particular impact on the quantity of cancellations, delays
or instances of denied boarding;
● makes
as assessment of the efficacy of Member States' enforcement processes,
noting that the Regulation does not define NEB competencies or
functions so that passengers are faced with inconsistent methods
of dealing with their complaints and enforcement of their rights;
● says
infraction proceedings were initiated against the Government based
on the UK NEB's approach to handling complaints;
● considers
that further work is necessary in a number of areas to improve
the operation of the Regulation. It wishes to improve enforcement
of the Regulation through enhancing co- operation between NEBs,
possibly with a code of good practice, and wishes to discuss with
NEBs and airlines how to differentiate between cancellations and
delays as well as establishing guidelines on what constitutes
an "extraordinary circumstance";
● says
that over the six months from April 2007 it will organise meetings
with NEBs to tighten up enforcement procedures that it will provide
updated information to the public before summer 2007; and
● says
it does not propose amendment of the Regulation at this stage.
The Government's view
10.4 The Parliamentary Under-Secretary of State,
Department for Transport (Gillian Merron) tells us that the Government:
● welcomes
the Commission's study and agrees with its view about not re-opening
the legislation at the moment;
● agrees,
in line with its own better regulation principles, with the aim
of clarifying the NEBs' common understanding of the legislation,
including "extraordinary circumstances". However, it
notes that only the Courts can provide any definitive further
interpretation of the Regulation and that a Danish case on the
definition of "extraordinary circumstances" is currently
before the European Court of Justice; and
● welcomes
the Commission's desire to clarify aspects of the Regulation with
a code of good practice. This should include harmonising policy
about which NEB should handle a particular complaint — the
principle area of difficulty experienced by the Government.
10.5 The Minister also comments in some detail on
the infraction proceedings initiated against the UK, saying these
were started on the basis of the former approach to handling complaints
from non-UK residents, but the issue has now been resolved and
the Government understands that the proceedings will not be taken
forward. She explains that:
● subsequent
to implementation of the Regulation the Air Transport Users Council
(AUC), designated as the UK body to handle the complaints part
of the NEB procedure, experienced an increase of 300% in the complaints
it received;
● in
order to maintain its levels of service, the AUC was forced to
prioritise the complaints it handled. It chose to give priority
to those from UK residents over those from non-UK residents. The
Commission believed this practice was discriminatory and initiated
infraction procedures on that basis;
● the
AUC now accepts complaints from any passenger, no matter their
country of residence, as long as they confirm they want the AUC
to handle their complaint and accept that this will be done in
English;
● the
Regulation does not set out how NEBs should cooperate to handle
complaints. Some NEBs only handle complaints in which the incident
in question took place within their national borders;
● these
NEBs forward complaints (including complaints from their own citizens)
about incidents which occurred outside their borders to the NEB
of the airport in question. Sometimes complaints are forwarded
to other NEBs without the complainant's knowledge or agreement.
This practice can result in linguistic difficulties for passengers
and NEBs as well as significant delays in complaints being resolved;
● the
Government believes this is unhelpful to the passenger and considers
that it could contravene the Regulation, which suggests that passengers
have the right for their complaint to be handled by any NEB no
matter where the incident occurred or where they live; and
● the
Government is considering how the process of which NEB should
handle a particular complaint can be harmonised and will present
a paper on this subject to other Member State NEBs shortly.
10.6 The Minister adds that in the UK the enforcement
part of the NEB process is undertaken by the Civil Aviation Authority
(CAA). The AUC refers trends of non-compliance to the CAA for
enforcement action. The focus of the CAA's enforcement is to ensure
that passengers receive what they are entitled to and that the
airline amends its practices to prevent repetition. This is undertaken
by means of direct interaction with the carrier concerned —
the CAA has found this process to be effective. The CAA can prosecute
for breaches of the Regulation and, although no prosecutions have
been brought to date, the CAA would consider doing so if appropriate.
Conclusion
10.7 This document gives a useful, albeit interim,
view of how the aviation compensation and assistance Regulation
is working. Although there is no legislative revision in immediate
prospect and so we clear the document, we draw it to the attention
of Members for its intrinsic interest.
25 (23121) 5129/02 (23947) 13312/02: see HC 152-xxiii
(2001-02), paragraph 6 (10 April 2002), HC 63-ii (2002-03), paragraph
1 (27 November 2002) and Stg Co Debs, European Standing
Committee A, 18 December 2002, cols. 3-22 and (24862) 12190/03
(24936) 10823/03: see HC 63-xxxiv (2002-03), para 13 (22 October
2003). Back
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