The Travel and Leisure Law People

On a topic very close to our hearts here at Travlaw, here is a view from our www.ITLN.co.uk partner firm, N.Pirilides & Co on EU 261/2004, often referred to in the UK as “The Denied Boarding Regulations”….

EU AIR PASSENGER RIGHTS REGULATION 261/2004

Flight delays, flight cancellations and denial of boarding are matters which undeniably haunt the minds and lives of many people in the 21st century. Hence, the European Union considered it, and rightly so, a matter necessary for providing a legal basis for, which can act as a ground of safety and a shield of protection for the millions of air passengers crossing European grounds daily. The EU Air Passenger Rights Regulation 261/2004 (hereinafter the “EU Regulation”) establishes minimum levels of assistance and compensation for passengers where there have been long delays in flights, cancellations and when passengers are denied boarding involuntarily due to overbooking or when the airline is unable to accommodate them in the class they had booked. The EU Regulation came into force on February 2005 and is binding on each member state. As it is a normative act as defined by Art 288 of the Treaty on the Functioning of the European Union (TFEU), it has a binding effect in its entirety and is directly applicable to all member states. Accordingly and as a result, every passenger who is a citizen of a member state can claim compensation for the trouble suffered directly under the EU Regulation.

The EU Regulation applies to anybody (regardless of age or nationality) whose flight departs from an airport based in an EU country or whose flight arrives into an EU country and is operated by an EU airline. However, there are some conditions to be met by the passenger in order to make a claim. The passenger must have a confirmed reservation on the flight concerned and, except in the case of cancellation, present himself for check-in, as stipulated and at the time indicated in advance or, if no time is indicated, not later than 45 minutes before the published departure time.

The EU Regulation provides passengers with the right to reimbursement or re-routing, right to care and assistance (refreshments, communication and accommodation) and right to compensation for delays over 3 hours, or cancellations as long as they are not caused by what the EU Regulation call an “extraordinary circumstance” (i.e. due to bad weather). Specifically, there is a standardized financial compensation for the trouble suffered which is prescribed in the EU Regulation and varies for each mode according to the time lost due to the disruption, the distance of the journey and/or the ticket price. A passenger can claim the flight compensation by submitting an “air passenger rights EU complaint” form to the relevant airline and if he/she is not satisfied with the reply, a complaint can also be made to the National Enforcement Body (hereinafter the “NEB”) in the EU country where the incident took place or where the incident happened at an airport of departure outside the EU but involved an EU country he was travelling to. Airlines are obliged to fully inform passengers of their rights in the event of denied boarding and of cancellation or long delay of flights so that they can effectively exercise their rights.

The application of the EU Regulation by member states:

Each member state shall designate a body responsible for the enforcement of this EU Regulation as regards flights from airports situated in its territory and flights from a third country to such airports. Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected”.

The enforcement of the EU Regulation in Cyprus:

Cyprus as a member state is under the obligation to implement and enforce the EU Regulation and has thus adopted Regulation 283/2005 (hereinafter the “Cyprus Regulation”). As a result, regarding flights from airports situated in Cyprus and flights from a third country travelling to Cyprus, a passenger has the right to first lodge a complaint with the carrier. Where the airline fails to reply within reasonable time or where the passenger is dissatisfied with the carriers’ answer, he/she can lodge a written complaint with the relevant details of the event within the competent NEB in Cyprus, which is the Civil Aviation Department (hereinafter the “CAD”) a body under the Ministry of Communications and Works. More specifically, the CAD in Cyprus is in charge of complaint handling and examination. However, it has merely a “consulting” and not a punitive power, in contrast to the Civil Aviation Authorities in some other EU countries which reserve the authority to punish the carriers in violation of the EU Regulation. Following the examination of any complaint, the CAD concludes whether the carrier is or is not at fault and in breach of the Cyprus Regulation and the passenger will then be informed accordingly. The violator (carrier) will be required to pay the passenger the amount of compensation as specified under the EU Regulation whilst the carrier will simultaneously be subject to administrative penalties when the relevant details of the event are not submitted to the CAD, when so requested.

Moreover, the EU Regulation has established the Consumer Protection Cooperation Network and the European Consumer Center (hereinafter the “ECC”) in each Member State can advise passengers on their rights on any of the above occasions. Accordingly, the ECC in Cyprus acts as a mediator trying to resolve the dispute between passenger and airline. For instance, a case was reported where a Cypriot passenger was traveling with his family from Cyprus to Bulgaria, whereby he was told that there was a delay in his flight and was misinformed to check-in later on in the afternoon, which he did. As a result he missed the flight, as he was eventually told that he should have checked-in in the morning, (i.e. not later than 45 minutes before the published departure time). In this case, after the intervention of the ECC in Cyprus and Bulgaria, the passenger was fully compensated while he was also offered an additional 50% reduction in the price of any future travelling ticket with the particular carrier.

When it comes to the operation and the results of the EU Regulation, the EU Commission Staff Working Document “Complaint Handling and Enforcement by Member States of the Air Passenger Rights Regulations” is a key document applicable for the period of 2010-2012, assessing the EU regulation’s effectiveness through the NEBs which are responsible for its enforcement. Although over the period reported, the NEBs received a total of 201879 complaints under the EU Regulation, sanctioning as a means to ensure compliance with the EU Regulation was not widely made use of, while in the case where sanctions were imposed, Member States had difficulty in collecting them, partly owing to time-consuming administrative and/or legal procedures. Regarding the performance of the EU Regulation in Cyprus in the aforesaid reporting period, the number of complaints received had been reduced from 165 to 122, whilst the number of letters sent to passengers closing their cases, with an average of 3 letters per complaint, have been reduced from 495 to 366. However, the number of other measures used, such as inspections, warnings and meetings, have been increased from 7 to 10 in the reporting period.

All in all, the complaint handling and enforcement of the EU Air Passenger Rights Regulations by the member states appears to be effective to a somewhat high degree and more specifically in Cyprus, as the relevant enforcement local body confirm, the majority of the carriers have so far been shown compliance with the Cyprus Regulation and payment of the relevant compensation has very rarely been denied in the event that the CAD in Cyprus evaluated that the carrier was in breach of its obligations under the EU Regulation. However, there is always room for improvement on the application and conformity to these Regulations. A better coordination of enforcement policies so that to ensure a more effective and consistent enforcement of these rights across the EU, as well as a more proportionate balance between the interests of passengers and those of the industry is the primary key to its success.

PIRILIDES & ASSOCIATES LLC

23.10.2015

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