The proposed 2013 revision of EU air passenger rights, the EU261 Regulation, seemed stuck in EU legislative by being blocked within the Council. It was surprise then that the Council of the EU announced its intention to reopen the discussions at the most recent meeting of transport ministers late in 2024.
While everyone waits to see if this is opening a Pandora’s box or was actually an early Christmas present, let’s refresh our mind on where things stand with passenger rights.
In recent years, airline responsibility when things go wrong has been massively increased by the Court of Justice of the EU (CJEU). This means that the right to compensation now also covers delays and fewer cases can be considered as extraordinary circumstances which would exempt carriers from paying compensation. A perfectly illustration of how the scope has been expanded is that a dying pilot is no longer considered an extraordinary circumstance by the CJEUCJEU Joined Cases C-156/22, C-157/22 and C-158/22, TAP Portugal. Airlines want to run their schedules on time and ensure they get passengers from Point A to Point B. But the ever expanding scope of EU261 has led to a significant increase in the cost of the EU261 frameworkThe cost of compliance with EU261 “has increased by 13,6 per cent every year since 2011 to reach a staggering €5.3 billion in 2018 representing €4.4 per passenger which has to be compared to an average profit margin of 4.7€ per passenger” Study on the current level of protection of air passenger rights in the EU, Final Report, Steer for European Commission, January 2020 which ultimately adds to the cost pressure of flying in Europe.
It is clear that something has got to give to ensure we have an efficient and effective legislative framework which reflects the current configuration of the airline market and which ensures a fair balance for consumers and airlines alike. The European Commission should be commended for its efforts to reach a passenger rights legal framework that strikes this balance better in the 2013 proposal, yet some elements are missing still.
The introduction of a definition of extraordinary circumstancesArticle 1 (e)(m) of proposal 2013/0072 including a non-exhaustive list of examplesAnnex 1 proposal 2013/0072 included in the 2013 proposal would bring legal clarity and predictability, both for airlines and consumers.
Despite this, there is still room for improvement on the 2013 proposal. The definition remains very broad with general terms such as “normal exercise of the activity”, which could leave room for a lot of interpretation by the courts. On top of this, the list of examples of extraordinary circumstances although non-exhaustive, could benefit from an update and include things such as pandemics and industrial action both by the operating air carrier staff and any essential service providers (e.g. airport staff and air navigation service providers).
That same proposal extends the threshold for triggering compensation in cases of long delaysArticle 6. 2. Proposal 2013/0072 to 5 hours which would act as a strong incentive for airlines to solve any possible delays before reaching the threshold. This would align with the passenger priority to get to their destinationSpecial Eurobarometer 485, January 2020. instead of having their flight cancelled.
More broadly when it comes to passenger rights, the Commission also made proposals in 2023. These proposals address, amongst other things, the rise of Online Travel Agents (OTAs) in how consumers book their travel today. Under the 2023 proposals, there will be a requirement for OTA to share information , such as passenger details, directly with direct travel providers such as airlinesArticle 14a Proposal 2023/0437. They would also help clarify the sharing of liability between the different actors in ticket distribution when things go wrong.
However, while such measures are welcome, they do elevate the risk of increased red tape for air carriers through reporting obligations on things like service quality standardsArticle 15a Proposal 2023/0437 and they do not balance liability sufficiently towards OTAs when they fail to reimburse passengers.
For years there was nothing but deathly silence on reforming EU 261. Now between the intention to move the 2013 proposal along and the 2023 proposals from the Commission, passenger rights is back on the legislative menu. There remains much work to do to achieve ensure the EU serves up an effective passenger rights framework for airlines and passengers alike.