Last week was a good one for millions of passengers, as regulatory bodies stepped up consumer protections. The EU led the charge, issuing additional guidance on its famed EU261/2004 rules to clarify when travelers are entitled to care and compensation from airlines in the event of flight delays, overbookings or cancellations.
It is not surprising that airlines have tried to avoid paying out claims under the EU261 rules. In some cases carriers sought alternate interpretations of terms in the law such as “extraordinary circumstances”, or argued that delays suffered by passengers misconnecting to onward flights should be treated differently than single segment trips.
The latest EU guidance is explicit in defining passengers’ rights in these circumstances, providing advice based on prior court rulings that have defined precedence in these areas.
Passengers booked on itineraries involving connections have previously faced uncertainty about airline obligations in the event of a short flight delay that would not typically qualify for compensation but which also resulted in missing a connection and, ultimately, a long delay in reaching the final destination. The new guidance makes it abundantly clear that most of these scenarios are covered under the EU261 rules, even if the onward connection is operated from a non-EU member state by a non-EU airline.
Says the EU:
In accordance with Article 3(1)(a), passengers who missed a connection within the EU, or outside the EU with a flight coming from an airport situated in the territory of a Member State, should be entitled to compensation, if they arrived at final destination with a delay of more than three hours. Whether the carrier operating the connecting flights is an EU carrier or a non-EU carrier is not relevant.
In the case of passengers departing from an airport in an non-EU country to an airport situated in the territory of a Member State as their final destination in accordance with Article 3(1)(b), with directly connecting flights operated successively by non-EU and EU carriers or by EU carriers only, the right to compensation in case of a long delay on arrival at the final destination should be assessed only in relation to the flights operated by EU carriers.
A number of specific scenarios are described whereby passengers may or may not be eligible for compensation if denied boarding on a flight. Connecting passengers receive protection in cases where an inbound flight is delayed and the airline offloads them from the connection, assuming the passengers will not arrive in time. If travelers are at the gate and denied boarding, that scenario is now covered in the new rules (those on separate itineraries are not covered by this revised guidance, however). Passengers who are not carried “due to a mistake made by ground staff when checking their travel documents (including visas)” are due compensation under the denied boarding section of the EU261 rules. The EU explicitly cites the TIMATIC database as the source of guidance for ensuring proper documentation.
The EU provided two examples of uncertain flight cancellation circumstances to clarify its policies. If a flight takes off and then “for whatever reason, being subsequently forced to return to the airport of departure where the passengers of the said aircraft are transferred onto other flights”, that is considered a cancellation. Similarly, a flight which departs and is diverted to an alternate airport is considered a cancellation unless passengers are ultimately rerouted to the final destination (delay rules still apply) or the alternate airport serves the same city and transportation to the original airport is provided.
Mechanical faults are no longer considered “extraordinary circumstances” under the fresh guidance so passengers are due compensation when such an event transpires. Historically a number of airlines have suggested otherwise when claims were filed.
Says the EU:
A breakdown, such as that at issue which was caused by the premature malfunction of certain components of an aircraft may constitute an unexpected event. Nevertheless, such a breakdown remains intrinsically linked to the very complex operating system of the aircraft, which is operated by the air carrier in conditions, particularly meteorological conditions, which are often difficult or even extreme, it being understood moreover that no component of an aircraft lasts forever. Therefore, it must be held that unexpected event is inherent in the normal exercise of the air carrier’s activity.
As regards technical defects, the fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken all reasonable measures to relieve that carrier of its obligation to pay compensation.
This policy also extends to interaction between aircraft and the ground handling equipment at airports. Such interactions are explicitly defined as normal and thus improper performance of such tasks cannot be exempted as extraordinary.
Mobile stairs or gangways can be regarded as indispensable to air passenger transport, and therefore air carriers are regularly faced with situations arising from the use of such equipment. A collision between an aircraft and a set of mobile boarding stairs is, hence, an event inherent in the normal exercise of the activity of the air carrier.
IATA Weighs In
The EU guidance is meant to serve as interim rules pending finalization of updates to the legislation introduced in 2013. It is expected that the final version of that revision will see certain protections reduced, mostly in the form of larger delay thresholds before compensation is paid out, though many of these other improvements to the care criteria will remain.
Responding to the new interpretive guidance, IATA Director General Tony Tyler praised the effort but also bemoaned the lack of further progress on refining the rules. “[The] interpretative guidelines are an important step to ensure that EU 261 is applied with greater consistency across Europe,” he said. “The industry’s issues with EU 261, however, remain unsolved.”
Tyler, IATA and particularly the European member airlines are still waiting for a cap on the time over which an airline is responsible for providing care in case of a flight cancellation and more lenient rules regarding delays for longer flights.
Not to be outdone by the EU, India also got in on the act this month, establishing wide-ranging limits on fees and adding new passenger protections. Included in the new rules are caps on excess baggage fees, removal of processing fees to refund tickets, and increased compensation values for denied boarding and flight cancellations.
Indian regulators are also reportedly adding a price cap on shorter, regional flights (to be subsidized by the government) and reducing the restrictions on new airlines offering international service in an effort to increase competition.