EC promises to clear the air on pax rights

 - September 27, 2007, 6:46 AM

Regional airlines and politicians hope a new European Commission report on passenger rights expected this month will lead to clearer rules and more effective enforcement in some countries. The EC has acknowledged that European Union regulations introduced to ensure compensation and assistance for airline passengers facing denied boarding, flight cancellations or long delays involve “imprecise text.”

Earlier this year, the EC promised to work with operators and national authorities to overcome problems with implementation of the relevant law, EU Regulation 261/2004, which came into force in February 2005 and which the ERA has called “the worst air-transport regulation ever implemented in the EU.”

In discussions with the European Parliament and the EU Council of Ministers, the airline lobby group maintained from the outset that ambiguity and lack of clarity in the “fundamentally flawed” regulation would lead to legal difficulties. Airlines claimed that the law imposed remedies that would prove impossible to deliver.

Members of the European Parliament also have been pressing for change–albeit sometimes as a result of their own misunderstanding of the regulation–leading ERA officials to fear the EC might feel bound to make unnecessary changes to appear responsive. They attribute the misleading EC text to misunderstanding by members of the European Parliament that the regulation requires airlines always to compensate passengers for cancelled services. ERA estimates that less than 5 percent of flight cancellations would warrant such compensation.

For the past six months the EC has examined the problems and worked with European airlines and National Enforcement Bodies (NEBs) to achieve five objectives expected to improve implementation of the passenger rights regulation:

• clarification of disputed concepts, such as “extraordinary circumstances” and the right to rerouting;

• better information to identify cancelled or delayed flights;

• improved enforcement by NEBs;

• examination of airlines’ compliance, particularly in provision of information to passengers at airports; and

• provision of better information by the EC.

Plans to work with industry and enforcement bodies to improve application and enforcement of the regulation came out of an EC review published in April following earlier publication of a 200-page study of the law by consultants Steere Davies Gleave. At the time, EC officials found it inappropriate to adopt the consultancy’s recommendations for regulatory changes but said they would review that decision after six months. The EC also said it would begin infringement proceedings against EU member states if it was dissatisfied with progress on enforcement following its April review.

Misleading Data

The EC then published a new EC poster on air passenger rights for use at airports and in information leaflets aimed at correcting what ERA had previously attacked as “incorrect and misleading text.” After officials had declined to discuss the complaint, ERA brought a charge of maladministration against the EC. Upholding the complaint, the European Ombudsman criticized the EC for failing to publish correct information, for not reacting to ERA’s concerns and for not apologizing for problems arising from incorrect and misleading information.

Earlier this year, in line with the move toward greater consultation, the EC sought industry comment on its proposed passenger-rights text before publication. To reduce the number of proposed changes, ERA, the International Air Transport Association and the International Air Carrier Association collectively proposed several corrections and clarifications to the EC, which adopted all the ERA recommendations.

The increased cooperation appeared to presage a better relationship among all parties, but carriers were again disappointed to discover EC officials still misunderstood the EU regulation when they published “new and blatantly incorrect” passenger-rights advice on their Web site in August. The EC removed the errant material after ERA officials pointed out the mistake.

According to ERA air transport policy director Andrew Clarke, the updated information to passengers had omitted the fact that there exist significant exceptions to the rule covering compensation of travelers whose flights had been cancelled. For example, passengers aren’t due compensation under the regulation if the carrier offers alternative flights close to the original scheduled times, or if it can prove that “extraordinary circumstances” led to the cancellation.

At the request of the EC, the “extraordinary circumstances” clause in the regulation came up in discussions last month between airlines and NEBs. Clarke told AIN they generally agreed that producing a comprehensive list of all such potential events would prove impossible. In addition, they came to “almost unanimous” agreement on procedures that should be adopted when airlines claimed that an extraordinary circumstance had arisen (although details remain confidential pending publication of the EC’s latest review this month).

Apart from problems with interpretation or enforcement of the law, the ERA remains concerned that the current regulation is discriminatory. “Air passengers should have the same legal rights as other transport users. We can see no justification for singling out air passengers as being in need of legal protection different from that provided to, for example, rail passengers.” It says that generic consumer protection laws should sufficiently cover most travelers’ needs.

Clarke concluded that “politicians, the media and the public” have focused too much on provisions for passenger compensation when flights have to be cancelled. “The main benefit that has been overlooked is that passengers are looked after when their travel plans have been disrupted,” he said.