Secondary Rights of Passengers

© Springer International Publishing Switzerland 2015
Francesco Rossi Dal PozzoEU Legal Framework for Safeguarding Air Passenger Rights10.1007/978-3-319-08090-1_6

6. Secondary Rights of Passengers

Francesco Rossi Dal Pozzo 

Dipartimento di Diritto pubblico italiano e sovranazionale – Department of Italian and Supranational Public Law, Università degli Studi di Milano – University of Milan, Milan, Italy



Francesco Rossi Dal Pozzo

6.1 Definition and Nature of ‘Secondary’ Rights of Passengers

The term ‘secondary rights’ is used to identify those rights of passengers that, unlike ‘primary rights’, do not pertain to life, to safety or even to the dignity of man, but are ascribable to the legitimate expectation of availing oneself of efficient service and being refunded when this does not happen. As will be seen, there are, from this point of view, various types of air carrier liability: contractual liability and extra-contractual liability , as well as overlaps of the two, the one international and the other at the level of the European Union, with an interrelationship between them to which I shall return. This all contributes to a lack of clarity of passenger rights, an asset that is as important as it is rare in the matter examined.

The cornucopia of regulations, laws, circulars, regular documents and so on, gives the impression that passengers may nowadays enjoy effective and unconditional protection.

As will become clear, this result is far from having been achieved and certain rights, although announced in many political manifestos, are still sketchy outlines which undermine their usefulness. It is for this very reason that in this Chapter great importance will be given to the Commission Proposal to revise EU legislation on the protection of consumers–passengers.

6.2 The ‘Charter of Passenger Rights’

The above-mentioned considerations were assimilated first and foremost by the EU legislature that, aware of the necessity of building a unified framework that included all international and Community provisions granting rights of any nature to passengers and users, adopted a document that could enable passengers to be fully aware of their rights.

This is the ‘Charter of Passenger Rights’ , a consolidated act on the rights that the European Union confers on passengers and the duties it imposes on air carriers.

The Charter originated in Commission Staff Working Paper ‘Air passenger rights in the European Union’ SEC (2000) 535 of 23 March 2000,1 and is mentioned in the Communication from the Commission to the European Parliament and the Council Protection of Air Passengers in the European Union of 21 June 2000,2 which states that the central element of the information campaign is ‘the publication of a charter of existing rights and its display where passengers will see it, beginning with airports and then moving on to the offices of travel agents and airlines’. The Charter was ‘consecrated’ as a fundamental instrument for the protection of EU passengers in the White Paper, European transport policy for 2010: time to decide.3

In the years which followed the Charter was constantly updated in the light of the changes introduced by EU law.4

In other words, the ‘Charter of Passenger Rights’ is simply a document summarising the essential features of international and EU legislation on the matter.5

At the strict EU level, the part played by Regulation (EC) No 2027/97 (now Regulation (EC) No 889/2002) to the Charter of Rights is expressly provided for under its Article 6 according to which passengers must be informed, at least in summary, of the main provisions governing liability for passengers and their luggage, at all points of sale, including sale by telephone and via the Internet.

This obligation to inform must absolutely include, at the moment of booking, the following information: (a) the airline operating the flight; (b) the flight schedule; (c) the type of aircraft; (d) tariffs and rates and any restrictive conditions linked to these;6 (e) the PNR—Passenger Name Record ;7 (f) any limitations to the air carrier’s liability in the case of death or injury of passengers ; (g) limitations to liability in the event of damage, destruction, loss or delayed delivery of luggage . Moreover, always on the matter of the obligation to inform, Regulation (EC) No 261/20048 expressly mentions the Charter in Article 14(1) providing that in the check-in area there must be a (clear and understandable) notice displaying the following message ‘If you are denied boarding or if your flight is cancelled or delayed for at least 2 h, ask at the check-in counter or boarding gate for the notice stating your rights, particularly with regard to assistance and possible compensation’.9

6.3 The Protection of the Secondary Rights of Passengers Under International Law

The first three Chapters have dwelt on the provisions of the Montreal Convention , as referred to in Regulation (EC) No 2027/97 (now Regulation (EC) No 889/2002) which extends its applicability to all Community air carriers , with some supplementary provisions, aimed at protecting primary rights of passengers and providing detailed rules for payment in the case of death or injuries.10

In this Chapter the Regulation will be examined only with regard to its provisions on secondary rights, as previously defined. The instances considered by the Montreal Convention are delays in the carriage of passengers and baggage and the destruction, loss or damage to the latter.11

For each of these cases the Montreal Convention sets a minimum amount for damages. Any contractual clause aiming to exonerate carriers from their liability or to fix an inferior to that provided for under the Convention provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention is null and void. In any event, this nullity is partial, and does not entail the nullity of the whole contract.

The Montreal Convention then fixes the terms of the notice of complaints . Where there is damage to luggage, the injured party must complain to the air carrier ‘forth with after the discovery of the damage’, that is as soon as possible and in any event within 7 days for the date of its receipt.

Where there is a delay, the complaint must be made at the latest within 21 days from the date on which the luggage or cargo have been received. In both cases complaints must be made in writing.

Mention must be made of the fact that, where the operating air carrier is not the contracting carrier whose name or code appears on the ticket, passengers may make a complaint or make claim for damages to both.

A civil action for damages, with a limitation of 2 years reckoned from the date of arrival at the destination, may instead be brought: (i) in the territory of the State of residence, (ii) before the Court of the domicile of the carrier or of its principal place of business, (iii) where it has a place of business through which the contract has been made, or (iv) before the Court at the place of destination, at the option of the claimant.12

(a) Delays in the carriage of passengers.

Where there are delays , the carrier is responsible for the damage unless it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take such measures. Its liability for the damage is limited to 4,694 SDR13 (Article 22(1) of the Montreal Convention–Annex to Regulation (EC) No 2027/9714).

Regulation (EC) No 2027/97 must then be appropriately taken in combination with Regulation (EC) No 261/2004 , which will be examined in the next Section,15 each in their respective field of jurisdiction and relevant legal classification.

(b) Delay in the carriage of luggage.

Where there is a delay , the carrier is liable for damage unless it took all measures that could reasonably be required to avoid the damage or that it was impossible to take such measures.

Liability for the damage is limited to 1,131 SDR (Article 22(2) of the Montreal Convention–Annex to Regulation (EC) No 2027/97).

(c) Destruction, loss or damage to luggage.

The air carrier is liable, in the case of destruction, loss or damage of luggage for up to 1,131 SDR (Article 22(2) of the Montreal Convention —Annex to Regulation (EC) No 2027/97 , as added by Regulation (EC) No 889/2002) .

An extra amount may be requested where the passenger has made, at the time when the checked luggage was handed over to the carrier, a special declaration of interest in delivery at destination; this amount must be calculated on the basis of a tariff proportionate to the additional costs linked to carriage and insurance of the luggage, in addition to those for the luggage assessed at a level up to liability limitations.

The air carrier is responsible for damage to registered luggage even where it is blameless, unless the damage was due to a shortcoming of the luggage itself. As regards unchecked luggage, air carriers are liable only if the damage is ascribable to them.

For all of the above-mentioned types of compensation , Article 5 of Regulation (EC) No 2027/97 provides that EU air carriers must ‘without delay, and in any event not later than 15 days after the identity of the natural person entitled to compensation has been established, make such advance payments as may be required to meet immediate economic needs on a basis proportional to the hardship suffered’.16

Moreover, the Regulation makes it clear that the advance payment does not constitute recognition of liability, although, independently of the effective liability of the Community air carrier , it is in any event not returnable, except in the cases expressly provided for or when its beneficiary is revealed as being a different individual from the one entitled to it.

In conclusion, regarding the ways in which a passenger may submit a complaint, where the carrier operating the flight is not the same as the carrier whose name or code appears on the ticket, the passenger may make a complaint or bring an action for damages in respect of both.

In the case of checked luggage the air carrier is liable even if its behaviour is blameless (duty of care), unless the damage is due to inherent defects of the luggage.

On the other hand, air carriers are liable for unchecked luggage only if the damage is ascribable to them (fault-based liability) . The loss must be reported before leaving the luggage reclaim area at the ‘Lost and Found’ office of the airport of arrival, using the PIR (Property Irregularity Report) forms. If within 21 days from the date of the PIR there is no news that the luggage has been found, the passenger may make a claim for compensation for any expenses incurred. Where there is any damage to luggage the passenger will be able to make a complaint within 7 days from the date of receipt of the item while in the event of a delay the period is extended to 21 days.

6.4 Regulation (EC) No 261/2004

The above-mentioned inconveniences are not , however, the only ones that users and passengers may have to face.

In the last few years, for instance, there has been a massive recourse to bookings using both traditional methods and new technologies.17

These booking services, without the actual purchase of a ticket, however entail the risk for carriers, especially traditional ones, of being left with unsold seats: this is the case of no-show passengers who do not turn up for boarding.

As is well known, airlines protect themselves from the risk of their flights taking off with empty seats by using the notorious practice of overbooking .

Essentially, some airlines take into account the fact that a proportion of expected passengers will not be present at boarding and thus tend to sell a number of tickets that is actually greater than the aircraft’s effective capacity. Until not very long ago any type of compensation was purely voluntary and thus left to the discretion of each carrier.

The first effort to regulate the phenomenon of overbooking dates back to Regulation (EEC) No 295/1991,18 which was criticised for failing to provide any type of protection in respect of delayed or cancelled flights.

Trying to fill the lacunae in the preceding legislation, Regulation (EC) No 261/2004 19 was adopted on 11 February 2004 which, in addition to matters relating to denied boarding , also regulates two more problems in relation to air transport, cancelled flights and prolonged delays, by means of a somewhat convoluted group of cross-references.

The scope of the Regulation covers passengers leaving from airports within the European Union, or arriving at an airport in the territory of a Member State by means of a Community air carrier , providing they are individuals travelling with fares that are available to the general public.

In particular, Article 3(1)(b), provides that the Regulation applies to passengers leaving from an airport in a third country for an airport set within the territory of a Member State, unless the passengers received ‘benefits or compensation and were given assistance in that third country’.

The Regulation thus aims to prevent those passengers who already enjoy compensation outwith the territory of the Union from being placed at an unjust advantage.

It clearly emerges from Article 3(1)(b) that the Community legislature had no intention of introducing any type of protection for Community passengers flying from a non-member country (with the exception of Norway, Iceland and Switzerland) to a Member State with a third-country carrier. In the same way, Regulation (EC) No 261/2004 will not be applicable in a situation that is completely outside the Union. This choice is the natural result of the fact that the Regulation cannot be enforced outside Community territory.

Moreover , passengers who: (a) travel free of charge or at a reduced fare not available directly or indirectly to the public (for instance airline, travel agent or tour operator employees) or (b) are denied boarding for reasons of health or safety or for not having valid travel documents cannot avail themselves of the protection granted by the Regulation.

The Court of Justice also had the opportunity of expressing an opinion on the matter of the territorial application of Regulation (EC) No 261/2004, with its judgment of 10 July 200820 on a reference for preliminary ruling under Article 267 TFEU, which arose during a dispute between Mr. Schenkel and Emirates Airlines regarding the interpretation of the concept of ‘flight’ (which is not contained in the definitions listed under Article 2 of Regulation (EC) No 261/2004) and the application of Article 3(1)(a) of Regulation (EC) No 261/2004. The dispute issued from the refusal, on the part of the airline, of compensating Mr. Schenkel following the cancellation of his flight from Manila, in the Philippines. In its judgment, the Court first and foremost marks the difference between ‘flight’ and ‘journey’. While the former is an air transport operation, and as such to be considered a ‘unit’ of such carriage operated by the air carrier fixing its ‘itinerary’,21 the latter is instead connected to the individual passenger choosing his or her destination and reaching it by means of various air carriers .22 The Court has, on this matter, clarified that the Regulation is not applicable to an outward and return journey originating from an airport located in a Member State if the return flight to that airport departs from an airport located in a non-Member country.23 For the Court, indeed, it is not relevant that the passenger has booked the two flights with the same reservation. On the other hand, considering the concept of ‘flight’ as an outward and return journey would have the effect of reducing the protection granted by the Community regulation, rather than increasing it. If such a concept included both the outward and the return flight, the result would be to deprive passengers of the rights granted to them where the outward flight was from the airport of a Member State but operated by a third-country carrier. There would then be an inequality in the treatment of passengers that, using this type of flight, initially left for a non-Member-State airport, compared to those passengers that travelled by the same flight, started their journey in an airport located within the boundaries of the European Union. The former, indeed, unlike the latter, would not be able to avail themselves of the protection provided by Regulation (EC) No 261/2004.24

Pursuing the analysis of the Regulation, what is noticeable is that, unlike Regulation (EEC) No 295/1991, the prerequisite of a ‘scheduled flight’ is no longer necessary, since it is sufficient that passengers ‘have a confirmed reservation on the flight concerned and […] present themselves for check-in […] at the time indicated […] or if no time is indicated—not later than 45 min before the published departure time’. Moreover, current regulations now allow also passengers with tickets issued within a frequent flyer programme to be protected.

Although it is true that many of the forms of compensations mentioned were in fact already practised, albeit on a voluntary basis, by most airlines and covered by general conditions of contract, and that others, as seen in the preceding Section, were expressly provided for under the Montreal Convention, one of the most valuable innovations of Regulation (EC) No 261/2004 is contained in the above-mentioned Article 14 which actually recognises and protects the right of passengers to be clearly and accurately informed in a framework of transparency which is consistently and uniformly applied in all the European Union.

Under the above-mentioned rule, air carriers are obliged to display at check-in a ‘clearly visible’ notice in which passenger rights in respect of denied boarding or of a flight being cancelled or delayed for more than 2 h:25 such rights cannot be subject to any restriction or waiver under exemption or restrictive clauses in the contract of carriage . The notice sets out the Charter of Passenger Rights or, as suggested above, a sort of ‘manifesto’ of rights which is constantly updated in step with current European and national regulations, which already been adopted and publicised before the entry into force of Regulation (EC) No 261/2004.

Checks by the Commission carried out a few years after the entry into force of the Regulation nevertheless showed that in many airports the Charter of Passenger Rights was neither displayed nor accessible and in some cases not even available on request.

Under Article 3(6) of the Statute, the European Ombudsman took a strong position on the correct implementation of Article 14 of the Regulation and asked the Commission to correct some information considered to be wrong or misleading on the rights of passengers as well as, in particular, to improve the means by which passenger rights are advertised and disseminated.

The European Ombudsman, who requested the Commission to answer by 31 March 2007, had been acting on a complaint of 5 March 2005, that is not long after the entry into force of Regulation (EC) No 261/2004, where several (over 60) airlines complained about the opacity of some of its provisions.

The objections raised by of the airlines, some of which were accepted by the Ombudsman (two out of five) concern, in particular, the information in the means of communication (one brochure, a poster and a video) by which passengers were informed of their rights.

These communications, drawn up by the Commission in English and then subsequently translated into various languages, must on the one hand inform passengers thoroughly, and on the other must do so using messages that should be short and catchy for the public. The two objectives are not always easily blended.

The European Ombudsman, in supporting the necessity of more clarity in communication, recalled a few of the passages in the informative notice originally set out by the Commission. In the notice ‘[i]f you are denied boarding or your flight is cancelled, the airline operating your flight must offer you financial compensation and assistance’. According to the Ombudsman, this sentence would induce passengers to believe that financial compensation is due whenever a flight is cancelled, while Regulation (EC) No 261/2004 excludes it in extraordinary circumstances, in the case of rerouting within a few hours’ time, or in case of at least 14 days’ notice.

The expression ‘Immediate and automatic compensation will be paid for delays, cancellations and overbooking’ , in the video message, would even induce one to believe that financial compensation was due in the case of flight delay, while the Regulation actually excludes this, or that in the case of cancellation or of denied boarding pecuniary compensation it must be paid immediately, while the Regulation actually provides for terms.

Another objection was raised against a document attached to a Commission Press Release of 16 February 2005 (IP/05/181). The purpose of the press release was to provide a reliable interpretation of some of the provisions under Regulation (EC) No 261/2004, especially those on financial compensation due in the case of cancelled flights.26

In it, amongst the various instances considered, the Commission, responding to ‘Question 10’ clarified that fog or weather conditions such as rain, storms and snow, can only rarely constitute sufficiently extraordinary circumstances justifying non-compensation of passengers who had their flights cancelled. The Commission pointed out that in order to be exempted from having to pay compensation on the grounds of extraordinary circumstances, air carriers must first of all prove they have adopted all possible necessary measures to avoid any inconvenience to passengers.

According to the Commission, modern technology enables aircraft to take off and to land even in the most difficult weather conditions. The Commission also claimed astonishment that airlines continue to use this exemption improperly, resorting to it under any circumstances, as they used to do in the past.

The stance adopted by the Commission has been amply criticised by carriers.

Airlines pointed out that aircraft manufacturers themselves declare that some of their aircraft should not operate in certain weather conditions for safety reasons; moreover, there are aircraft that are not certified to fly in particularly difficult weather conditions. This is in addition to the fact that airports do not always have the facilities enabling aircraft to take off and land in the above-mentioned circumstances.

If this is true, there must be limitations placed on resorting to the exemption due to extraordinary circumstances on the part of air carriers.

The Commission itself had used telling, albeit not very clear, language regarding the limits to its application: ‘in almost all cases’ rather than ‘in all’ of them.

Faced with strong pressure from air carriers, the Commission decided to omit the answer to ‘Question 10’ from its press release, despite declaring it substantively correct.

On this and on the other points examined, the Commission at first, did not believe it needed to modify its informative poster, but then it did so remarkably late.

This initial attitude or refusing to modify or remove the above-mentioned expressions, led the European Ombudsman to believe that the Commission had not acted correctly, and had thus infringed Article 1227 of the European Code of Good Administrative Behaviour, endorsed by a Resolution of the European Parliament on 6 September 2001.

Furthermore, the Commission was also found to have infringed Article 1728 of the European Code of Good Administrative Behaviour for having failed to answer the carrier’s request for clarification and explanation within a reasonable time, not having done so until a full month later, and for having failed to inform the carriers of their right to appeal to the Ombudsman, under Article 19.29

The Commission, also as a result of the Ombudsman’s intervention and the numerous objections raised by consumer associations and the air carriers themselves, on 4 April 2007 published a new version of the manifesto in which passengers were informed of their rights, using expressions that were in every case concise, less ambiguous and more consistent with the provisions of Regulation (EC) No 261/2004 .30 The correction of the informative poster however, left many other questions unanswered, which were partly taken up again by the Commission in its first report pursuant to Article 17 of Regulation (EC) No 261/2004 on the implementation and the effects of the Regulation 2 years after its entry into force,31 including the measures for its implementation at national level. In its report, the Commission acknowledged that, while now passengers are more protected, there is still a need to ensure that airlines and Member States fulfil their obligations.

For the various studies, some of which were statistical, which accompanied the report, it emerges that air carriers actually had not always complied correctly with Regulation (EC) No 261/2004; in order to avoid their obligations, airlines did not hesitate to point to gaps and/or doubts over interpretation on some aspects of Community regulations.

In its Communication of 11 April 2011,32 7 years after the entry into force of the Regulation, the Commission stressed how, despite the fact that implementation of Community law on the rights of passengers had constantly improved, the above-mentioned problems had not been fully solved. They include, once again, the difficulty encountered by passengers to avail themselves of their rights fully and effectively. Following this Communication, the European Parliament adopted a Resolution in which it asked the Commission to specify better the protection granted to passengers, providing clear and precise explanations on some aspects of current EU legislation, to be referred to later in this Chapter, which were considered to be obscure or, in any event, problematic.33

In its Press Release of 13 March 2013 on the Proposal for new measures to strengthen air passenger rights ,34 the Commission again claimed that the main reasons for the problems lay in the gaps and doubts in the interpretation of certain aspects of current legislation. In particular, the Commission stressed the lack of homogeneity in the implementation of rules provided for under it, blaming: (a) lack of clarity or precise definitions in Regulation (EC) No 261/2004; (b) problems encountered by passengers in making complaints to air carriers in as much as the relevant procedures are unclear and confusing; (c) inconsistency, or poor efficiency of sanctioning policies implemented by national authorities; (d) excessive financial costs for air carriers in determined circumstances, not least in view of the crisis being suffered by the air transport system as a whole,35 with the risk that the burden might be then shifted on to passengers in the form of increased fares and rates.

For all these reasons, the Commission therefore decided to make the above-mentioned Proposal to revise EU legislation36 precisely in order to implement the rights that have already been granted to passengers and to provide for new ones.37 This revision then became necessary to make the Regulation comply with the large volume of new case-law of the Court of Justice which impacted upon many of the provisions in Regulation (EC) No 261/2004.38

In short,39 the Proposal essentially aims at clarifying some aspects of the Regulation, filling in obvious gaps in the current legislation that have given rise to many doubts on interpretation (within a very few years there have been more than 20 references for preliminary rulings under Article 267 TFEU, formerly Article 234 TEC). The Proposal introduces the express obligation to inform passengers in the case of flight delay or cancellation as soon as possible (that is, no later than 30 min after scheduled departure time)40 and explains such concepts as ‘extraordinary circumstances’41 and ‘long delay’ ,42 together with the assistance to be provided in the case of the latter and in the case of ‘tarmac delay’;43 it introduces new definitions under Article 2 (Definitions) of the Regulation;44 and explains the methods to ‘reroute’ passengers45 in more detail, together with their rights if they miss a connecting flight as a result of a delay of the previous flight.46 On the matter of the provision of new rights, the Proposal aims at making more even-handed the treatment provided for in the cases of delays and of cancellation, in the case of flight rescheduling, when the flight has been rescheduled less than 2 weeks before the scheduled time of departure.47 It provides for the correction of spelling mistakes in the names of passengers without additional charge up to 48 h before departure,48 and the right to board on the return journey on the ticket even when the passenger did not take the outward journey.49 The Commission Proposal then includes provisions for the strengthening of the implementation of the rules and the sanctioning system in case of any violation of the former, as well as the better handling of complaints.50 From this point of view, the Proposal aims at reinforcing collaboration between National Enforcement Bodies (NEBs) by improving the exchange of information and coordinating their work and by granting them the support of the Commission.51 NEBs are also called upon to play a preventive role, going beyond merely handling passenger complaints, and continuously monitoring individual airlines’ practices and strategies. The latter are also required to set out clear procedures (such as online forms or setting up specific email addresses) to handle complaints effectively. Air carriers will have to acknowledge receipt of complaints within 7 days of reception; they must provide a full reply to passengers within the following 2 months. In the case of disputes, there will be the opportunity of resolving them, simply and economically, out of court.52

Protective provisions have been provided for in the case of airline bankruptcy, so that the rights of passengers are not compromised. Indeed, in such cases, there are difficulties in honouring obligations to passengers–consumers to the point that even boarding passengers on alternative flights in the case of flight cancellation as provided for under Regulation (EC) No 261/2004 becomes a problem.53 Consequently, the reinforcement of checks on the financial situation of carriers on the part of national authorities has been proposed, together with a stronger intervention of trade associations, called upon to frame in regulation the existing voluntary agreements on rescue fares and to make adequate insurance products more easily accessible, while also informing passengers on the means available to protect themselves in the event of the airline going bankrupt under the national law of each Member State.54

The new Proposal has also taken due account of air carrier needs. On this matter, the Commission provided detailed provisions on the types of assistance that airlines must guarantee whenever carriage service cannot be provided due to extraordinary circumstances and on the ways in which compensation is payable in the event of prolonged delays so that these two sanctions do not cause disproportionate and unjustified costs to the carriers themselves.55 Finally, for the first time, the joint financial liability of air carriers and third parties responsible for the interruption of service is recognised. In this regard, the provisions of some Member States could prevent carriers from seeking and obtaining compensation in their turn. However, the Proposal provides that the different national laws may not prevent the air carrier having a remedy against third parties. This provision, however, does not have repercussions on the passengers, since the latter will always only address their complaints to the air carriers.56

As already mentioned, the Proposal for a Regulation provides for a number of amendments to Regulation (EC) No 2027/97 on the liability of air carriers in the case of accidents, in particular on the management of passenger luggage by airlines. In this regard, making complaints is to be made as simple as possible by air carriers, through the provision of suitable forms (for instance, PIR forms—Property Irregularity Report). The submission of such forms by passengers equates to an actual complaint under Article 31.2, of the Montreal Convention .57 Moreover, there is to be greater transparency as regards information to passengers concerning carry-on and checked in luggage by requiring air carriers to state clearly what luggage is allowed and expressly indicate the additional costs for its carriage.58 Furthermore, new measures on the transport of musical instruments are introduced to the effect that they must be allowed on board if small and that, for bigger ones, the way in which they are transported in the hold must be declared.59 NEBs are responsible for the implementation of all the above-mentioned measures.

Finally and as previously stated, the Proposal includes new provisions for the protection of reduced-mobility passengers. They have the right to declare, without additional costs, the effective value of their mobility equipment, so as to adjust the carrier’s liability to the amount.60

On 11 July 2013 the European Economic and Social Committee (EESC) gave its opinion on the Commission Proposal for a new Regulation.61

In this document the EESC welcomed the higher level of legal certainty that the Proposal brought about and for the increase of some of the safeguards to passengers. According to the EESC, the provision for more precise definitions of the relevant concepts, which also takes into account the case-law of the Court of Justice of the European Union, will certainly bring about an improvement in the implementation of the measures , and consequently benefit both passengers and air carriers. However, it does criticise the fact that the Court of Justice’s case-law has been only partially taking account of in the Proposal. These observations will be taken up and analysed in the next Sections looking at individual provisions of Regulation (EC) No 261/2004.

On 5 February 2014, the European Parliament voted on Proposals from the Commission. In its vote, the European Parliament strongly supported several areas of the Commission Proposals, including many key points to strengthen air passenger rights , such as the right to care, the right to information, re-routing , connecting flights, luggage and complaint handling. Nevertheless, there were three issues in which the European Parliament’s legislative Resolution deeply diverged from the Commission (compensation for delays in short and medium flights, identification of extraordinary circumstances in which the air carrier is not required to pay compensation and air carrier liability in case of extraordinary circumstances, i.e. volcanic o ash or a major crisis, storms, strikes or air carrier failure).62

The Council discussion on the Commission Proposal is still on-going.On 10 October 2010, the Irish Presidency held an orientation debate at the Transport Council.Ministers expressed their agreement on the objectives of the Proposal, although they pointed out several concerns regarding the text put forward by the Commission. In particular, ministers’ concerns relate to new rules on connecting flights, long delay, cancellations and new provisions to link the compensation to the ticket price. Furthermore, some delegations underlined how travel by other modes of transport do not fall under the scope of the Regulation, according to the principle of clear and simple legislation. In view of the complexity and the political importance of this issue, despite the overall awareness of the need to revise and improve existing rules, the Lithuanian Presidency worked hard on the Proposal, drafting different compromise proposals, which all take into account the suggestions and comments received by the Member States and their ministers, with the aim of reaching a shared approach. In particular, the Presidency decided not to include provisions on linking compensation to ticket price and to delete provisions which would have applied Regulation (EC) No 261/2004 to travel carried out by other means of transport. The notion of extraordinary circumstances was discussed as well and significant progress was made with the delegations. In light of the above, the new Greek presidency and the other delegations worked systematically to reach a common approach at the meeting of the TTE Council on 5 June 2014.Overall, enforcement of the Regulation has been kept in focus, and the delegations reached a compromise on a simple and clear procedure for passengers to submit complaints and make use of alternative dispute Resolution bodies. Solid progress has been made: for instance, the improvement of the rules to inform passengers, in particular the Proposal to provide the Commission with the power to draw up standardised information notices for general use by airlines, the removal of the provisions giving rise to the application of air passenger rights in travel undertaken by other modes of transport and the removal of monetary limits on accommodation. Furthermore, the provisions on tarmac delay also have been fine-tuned and the notion of unexpected flight safety shortcomings has been established with the aim of precisely defining the conditions and the technical defects which allow an airline to seek exemption from the payment of compensation, in order to avoid abuse. Furthermore, as regards the change of schedule, the latest Presidency compromise maintains a separate Article to cover various cases of change of schedule, although several delegations wish to see its alignment to the Articles on delay and cancellations. Despite the intense work carried out and the fact that several technical solutions were found, a number of significant outstanding issues need to be further analysed in order to reach a compromise. These major outstanding issues are: Threshold of compensation, compensation for connecting flights, extraordinary circumstances and hand luggage. These issues will be subject to an in-depth analysis in the following Sections of this Chapter dedicated to the discussion of the individual provision of Regulation (EC) No 261/2004 and Regulation (EC) No 2027/97.63

6.4.1 Denied Boarding

The definition of denied boarding is generally described in terms of overbooking , although the former is a wider concept. For example, the failure to transport a passenger may also depend upon an unforeseen and sudden unavailability of aircraft with enough seats to satisfy all reservations. The Court of Justice, by two judgments of 4 October 2012, clarified the extent of the concept of denied boarding. In two separate requests for preliminary rulings the Juzgado de lo Mercantil No 2 de A Coruña (Spanish Commercial Court, Corunna)64 and the Korkein oikeus (Finnish Supreme Court)65 essentially requested the Court to clarify the scope of the concept, that is whether the latter exclusively concerns cases where flights have been overbooked or whether it may be extended to other circumstances. The Court clarified that the concept of ‘denied boarding’ cannot be limited to situations of overbooking but must also be extended to other reasons, in particular operational ones.66 Conversely, that is if a restrictive interpretation of the concept of ‘denied boarding’ were followed, limiting it only to cases of overbooking , the protection to passengers in similar situations which are not their fault would be unjustly reduced. This would be in fact contrary to the aims of the EU legislature when it granted high levels of protection to passengers. This purpose emerges from a perusal of Recitals 3, 4, 9 and 10 of the Preamble to Regulation (EC) No 261/2004 and by the Draft Proposals that led to the adoption of the Regulation. The Regulation, which aims to establish common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights ,67 was born from the desire of the EU legislature to increase passenger protection, reducing the number of denied boarding cases, in a period when such occurrences where very common, not least because of a gap in the preceding Regulation (EC) No 295/91, which only granted protection to those passengers who had been denied boarding because their scheduled flight had been overbooked.68

In the above-mentioned Case C-22/11, the Court was called upon to rule on an additional aspect of instances of denied boarding.

In its order for reference, the Finnish Supreme Court asked the CJEU if an air carrier may consider a strike as an exceptional circumstance for denying boarding to passengers on later flights (and thus not as such directly affected by events) to the one cancelled, without the obligation to pay compensation to said passengers. The Court ruled that the occurrence of this extraordinary circumstance cannot be grounds for denying boarding to passengers and cannot exempt that carrier from its obligation to compensate passengers booked on later flights, who were denied boarding .69 The Court indeed reiterates that the Regulation does provide situations in which boarding may be denied on reasonable grounds (such as reasons of health, safety or security, or inadequate travel documentation) which however could not apply to the case in point because the circumstances here was in no possible way ascribable to the passengers . As corollary to this last point, the Court highlights that any extraordinary circumstances may relate only to a particular flight on a particular day, and it is self-evident that these cannot be rely on in a case concerning the rescheduling of later flights.70 On the other hand, the Court pointed out that the air carrier could seek compensation from third parties who had any responsibility in causing the event.71

Having established that the Community concept of denied boarding is to be understood as having a wide scope, the Regulation provides for precise obligations on the part of carriers and specific rights in favour of passengers suffering it. In case of denied boarding, first of all, the carrier has the ‘obligation’ to call for volunteers to surrender their reservations in exchange for certain ‘benefits’, and, as already mentioned, to give precedence to persons with reduced mobility and anyone accompanying them. The previous regulation merely urged carriers to ‘include the possibility of a call for volunteers prepared not to board’. Today, instead, a clear obligation is provided for: only in the case the number of volunteers is not sufficient to allow the remaining passengers to board their flight can the carrier deny it to passengers ‘against their will’ (that is who do not desire to spontaneously renounce their reservations), and then they have the right to choose between compensation within seven working days72 or an alternative flight, (re-routing).

The remedies of re-routing and compensation must be examined together. There are, indeed, a few contradictions with regard to the obligation of air carriers , as an alternative to refunding tickets , to put passengers on board alternative flights or organise their re-routing, in cases of denied boarding, flight cancellation or flights delayed beyond 5 h, each of which will be analysed in depth in the Sections below.

In theory Regulation (EC) No 261/2004 requires airlines to offer passengers the choice; in fact, carriers often are not able to offer alternative flights on their own aircraft, and consequently passengers can only request the refund of the price of their tickets and, if necessary, a return flight to the first point of departure.

The EU Regulation moreover provides that passenger re-routing to the final destination should be in comparable transport conditions, ‘at the earliest opportunity’ (Article 8(1)(b)), or ‘at a later date at the passenger’s convenience, subject to availability of seats’ (Article 8(1)(c)).

There are doubts in particular as to the interpretation of the expression ‘comparable transport conditions’ that seems exceedingly vague and lends itself to divergent interpretations.

While traditional undertakings generally do not have particular problems in rerouting passengers on the aircraft of other carriers, on the basis of reciprocity agreements with the latter, low cost companies are not able to negotiate deals as advantageous as these and so tend to prefer refunding tickets. In the absence of reciprocity agreements, low-cost carriers would have no alternative but to buy tickets at other companies’ market rates, incurring costs that would certainly be much higher than those of refunding tickets. In this case the carriers themselves, in order to incur less costly economic loss, could also decide to take passengers to their destination via alternative mode of transport, such as train or coach, although the transfer might be rather long.

In order to avoid solutions that would be unacceptable and clearly prejudicial to consumer rights, the term ‘comparable’ should be connected to a strictly temporal concept, so that it might not be rely on when passengers are offered transport having a noticeably longer duration than that of the flight.

Another case is where the carriers unable to re-route the passenger on a direct flight, but on one entailing one or more stopovers. The Regulation does not mention this point. It is clear, however, that this must be the only way and far from being a free choice on the part of the original carrier.

The current Regulation does not specify within what time period passengers must be guaranteed re-routing.

The amendment proposed for the Regulation involved a maximum limit of 12 h after which, if the air carrier has not been able to re-route passengers offering an alternative flight on its services, it will have to re-route them via another air carrier or another mode of transport if available.73

It must be borne in mind that the choice between accepting a refund or re-routing always belongs to the passengers, and in any event, the competent National Authorities must check that the carriers have behaved in good faith, or that its behaviour was based on a clear commercial strategy.

Finally, Article 8(3) provides that where there are several airports (for instance, Milan-Malpensa, Milan-Linate and Milan-Orio al Serio) serving the same city, when an operating air carrier offers passengers the flight offered by the operating air carrier is to a different airport to that for which the booking was made, the carrier is to bear the cost of transferring the passenger.74

When passengers are re-routed on an alternative flight, they might be placed by the carrier in a class above or below that originally booked. In the former case the passenger, enjoying an advantage, will of course not be entitled to any compensation. If set in a lower class, the carrier must refund passengers, within 7 (work) days, by bank transfer or cheque or, subject to an agreement with the passengers, by travel vouchers and/or other services: (a) 30% of the price of the ticket 75 for all flights of 1500 km or less; or (b) 50% of the price of the ticket for all intra-Community flights of more than 1500 km, ‘except flights between the European territory of the Member States and the French overseas departments, and for all other flights between 1500 and 3500 km’; or (c) 75% of the price of all remaining flights.

This apparently clear provision is actually somewhat ambiguous.

It is not clear whether, for instance, where a journey consists of several parts in one of which a passenger was placed in a lower class, the distance on which the percentage of the ticket price to be refunded should be calculated in proportion to the part in question or to the overall journey. The solution to this question may be found in Case C-173/07,76 where the Court clearly differentiates between the concept of ‘flight’ and that of ‘journey’, holding that the former essentially consists of a unit of air transport operated by the carrier. The concept of ‘single route’ being in essence comparable to that of ‘unit’, it seems, then, that the basis on which the distance must be calculated is that of the single route and not the overall ‘journey’.

Another issue that is not expressly dealt with in the Regulation is where the price difference between the ticket bought and that belonging to the lower class exceeds the refund guaranteed under the Regulations. In this case the passenger is entitled to the higher amount. The second is where the passenger refuses to fly in a lower class. In this situation, the passenger should be refunded the entire price originally paid. In addition to these remedies, passengers are entitled to the fullest ground assistance including hotel accommodation, and compensation (EUR 250 for flights of 1500 km or less, a minimum amount which is moreover challenged by the European Low Fares Airline Association (ELFAA); EUR 400 for intra-Community flights of more than 1500 km and up to 3500 km; EUR 600 for all remaining flights).77 Compensation must be granted ‘immediately’ (Article 4) by air carriers, in cash, by electronic bank transfers or cheques or, subject to prior agreement with the passenger, with travel vouchers and/or other services (Article 7). The Proposal introduces the possibility for air carriers to conclude with passengers a voluntary agreement, in writing replacing the provisions on pecuniary compensation.78

There is a contradiction between Articles 4 and 7 of the Regulation in this connection. Article 4, requiring compensation to be immediate, would lead one to think that passengers are to be paid while still in the airport. However, the fact that Article 7(3) provides instead for payment by bank transfer implicitly acknowledges that payment of compensation may also take place subsequently. The conflict between the two rules could ostensibly be solved by providing for reasonable terms, such as 7 work days, within which passenger–users could be compensated; and within that period, moreover, the passenger will be entitled (under Article 8 of Regulation (EC) No 261/2004) to claim a refund under Article 7(3) of the Regulation. Compensation may be reduced by 50% when arrangements are made to re-route passengers to their final destination within 2, 3, or 4 h, according to the length of their flight.

This is naturally subject to the right of passengers to obtain, as is the case with long delays and flight cancellations , ‘further compensation’ (Article 12),79 if entitled to do so by other national, Community, or international regulations, in particular by the Montreal convention.

Despite the absence of significant statistics, Regulation (EC) No 261/2004 has undoubtedly had a beneficial effect with respect to denied boarding . In daily practice, regulations on denied boarding have been overall respected by most airlines, and do not create great concerns.80 On the one hand there has been a significant drop in cases involving denied boarding; on the other, when boarding is denied, the problem is resolved quite swiftly.

6.4.2 Long Delays of Flights.

In case of delay 81 airlines must offer minimum ground services entailing the right of passengers to receive meals and refreshments, as well as the possibility of making two ‘free of charge telephone calls, telex or fax messages, or e-mails’.

Indeed, care is guaranteed whenever expected delays are longer than: (a) for 2 h or more in the case of flights of 1500 km or less; or (b) for 3 h or more in the case of all intra-Union flights of more than 1500 km and of all other flights between 1500 and 3500 km; or (c) for 4 h or more, regardless of the length of the flight.

If the time of departure is expected to be the following day, passengers have the right to receive free hotel accommodation (and transport to and from the hotel).

In alternative to these forms of care, if the delay is protracted for at least 5 h, passengers may opt for full refund of the ticket price with, if necessary, a return flight to the first point of departure. The refund of the full price of the ticket (to be paid within 7 days, for the amount of the original purchase) must concern the part of the journey not made, or even the part already made if ‘the flight is no longer serving any purpose in relation to the passenger’s original travel plan’.82

Beyond the remedies offered by the Regulation, the concrete implementation of its current provisions has raised several doubts from the very beginning.

In particular, the Regulation does not set a clear limit beyond which a delay to all intents and purposes equals a flight cancellation. The identification of one or the other instance is not a secondary issue; indeed, compensation is provided for only in particular circumstances when a flight is cancelled, while where there are delays, the Regulation only provides for care, ticket refund, and re-routing.83

It is exactly for economic reasons that some airlines were induced, at least before the Court of Justice intervened on the issue, to reclassify cancellations as long delays, in order to avoid claims for refund.

Consequently, the lack of provisions for compensation in the case of long delays is an evident weakness of Regulation (EC) No 261/2004 that has over time enabled airlines to misbehave. Indeed, a considerable delay is often the cause of severe discomfort to passengers, no less than that deriving from flight cancellations or denied boarding . It is really difficult to understand, then, for what reason passengers should be entitled to less protection when there are delays. Certainly both the Montreal Convention and Regulation (EC) No 2027/97 expressly provide for compensation, but the two laws move on different legislative planes and cannot overlap.

It is surprising that originally the legislature aimed at ensuring, under certain conditions, a number of remedies (re-routing, or ticket refund, care) common to all disservices, while, compensation, on the other hand, operates only for some.

This misaligned setting of the Regulation was corrected by the Court of Justice, via its case-law, on 19 November 2009, which was confirmed by a subsequent judgment of 23 October 2012.

The first of these, Joint Cases C-402/07 and C-403/07,84 concerned a reference for a preliminary ruling seeking an interpretation of Articles 2(l), and 5(1)(c) of Regulation (EC) No 261/2004. In the first of the two cases the Bundesgerichtshof(Supreme Court of Germany) asked the Court whether, in order to consider a situation to be a ‘cancellation’ the original flight scheduling is not abandoned, regardless of how long the delay, and whether it would constitute a cancellation. The German Court also asked in what circumstances was a delay of the planned flight no longer to be regarded as a delay but as a cancellation, and if the answer to this question was dependent on the length of the delay . In the second case, the Austrian Court (Handelsgericht Wien) referred three closely linked questions to the Court: the first was whether Article 5 (Flight cancellation) , read in conjunction with Articles 2(l) (Definitions) and 6 (Delay) of Regulation (EC) No 261/2004 must be interpreted as meaning that a long delay (in the case in point, 22 h) in the time of departure constitutes a ‘delay’. The second question is whether an instance in which passengers are transported significantly later on a flight operating under a modified flight number carrying only a part of the passengers booked on the initial flight, together with other passengers not booked on the initial flight, constitutes a ‘cancellation’ rather than a ‘delay’. The third and last question was whether Article 5(3) of Regulation (EC) No 261/2004, which exonerates carriers from paying compensation, should be interpreted as meaning that technical problems of the aircraft and the resulting changes to the flight schedule represent extraordinary circumstances, which could not in any event have been avoided even if all adequate measures had been taken.85

In its judgment the Court dispelled many interpretative doubts by holding that a delayed flight, regardless of the length of the delay cannot be considered cancelled when it is operated in accordance with the air carrier’s original pre-arranged planning86 (thus considering ‘planning’ to be the same as itinerary). The fact that passengers reclaim their baggage or are issued new boarding tickets does not constitute a discriminating factor. Flight cancellation , on the other hand, is when passengers are re-routed on a scheduled flight.87 However, according to the Court, and this is the most significant aspect of the judgment, passengers of delayed flights may be assimilated to those of cancelled flights for the purposes of the application of the right to compensation when, on account of a delayed flight, they suffer a loss of time equal to or in excess of 3 h, that is to say when they reach their final destination 3 h or more after the arrival time originally scheduled by the air carrier.88 Essentially, this places flight cancelled with less than a week’s notice on a par with a long delay so long as, in the latter case, the loss of time is at least of 3 h. However, no compensation is due in the presence of an extraordinary circumstance, that is in the presence of events that for their nature or origin are not inherent to the normal service activities of the carrier and thus could not have been avoided even if all adequate measures had been implemented, in other words: circumstances beyond the carrier’s control.89

In a more recent judgment on 23 October 2012, the Court ruled in the same terms, namely that passengers of flights that undergo long delays, with the consequent loss of at least 3 h, are entitled to compensation under circumstances provided for by Regulation (EC) No 261/2004 (Joined Cases C-581/10 and C-629/10).90 The Court held that the obligation to compensate provided for also in the case of long delays is to be considered fully compliant with the principles of legal certainty and proportionality. In particular, with reference to the principle of proportionality , the Court notes that the obligation to pay compensation does not arise in every case where there are delays (but only those long delays resulting in a loss of time of 3 h or more) and that carriers are exempted in the presence of extraordinary circumstances.91

In the same judgment the Court also deals with the issue of the compatibility of the obligation to recognise the right to compensation to passengers suffering a delay in their flight, provided for under the Regulation, with the provision of the Montreal Convention . The different nature and purposes of these laws have already been noted, and will be returned to later. It is sufficient here to say that according to the Court there is no incompatibility: the loss of time deriving from a delay most certainly constitutes an inconvenience under the provisions of Regulation (EC) No 261/2004 but does not necessarily amount to ‘damage’ under Article 19 of the Montreal Convention; indeed, the constitutive elements of the provision require that the damage derive from a delay, that there is a causal relationship, and that the damage be individualised according to the different types of prejudice suffered by the various passengers.

Conversely, the loss of time suffered is identical for all passengers and it is therefore possible to remedy it according to a standardised measure that must be immediately adopted, regardless of the existence of a causal relationship between the delay itself and the alleged loss of time. When however both requirements exist, that is a causal relationship and the presence of individualised damage, the passengers may sue the carrier responsible under Article 19 of the Montreal Convention.92

Finally, the Court considered the request of the airlines party to the case to limit the temporal effects of its judgment ex nunc. The Court predictably took the view that the conditions were not met since it had already expressed itself in the same way in the above-mentioned Sturgeon Case.93 However, it should be noted that the Court can exceptionally decide to limit ex nunc the effects of its judgments where there is the pressing necessity to save and accordingly not challenge legal relations constituted in good faith, as well as to safeguard the principle of legal certainty. The limitation of the temporal effects of judgments on interpretation of the Court of Justice moreover requires the cumulative presence of two conditions: the good faith of the parties, which arises where there is objective, significant uncertainty regarding the implications of the EU provisions and the risk of serious incidents of social and economic order. Those conditions are evidently lacking in the case in point.

This judgment was further confirmed in Folkerts Case, which is notable for providing an interpretation which fills an obvious lacuna in the existing legislation.94 In this case, the referring German Court asked the CJEU if compensation is also due to passengers who, having left on a delayed flight, have missed the connecting flights, reaching their destinations at least 3 h later than the scheduled arrival time. The Court held that, on the basis of its case-law, passengers of a flight with one or more connecting flights who are delayed upon departure (although the delay does not exceed the limits set out in Article 6 of Regulation No 261/2004) and who reach their final destination with a delay of 3 h or more are entitled to compensation. The Court has, indeed, noted that the inconvenience suffered by passengers ‘materialises, with regard to delayed flights, on arrival at the final destination’, recalling that final destination (under Article 2(h) of Regulation (EC) No 261/2004) means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight.95

The fact that the case concerned flights operated by the same air carrier is not relevant, and consequently it is also applicable to those cases where the carrier operating the delayed flight is different from the one operating the missed connecting flight, provided the ticket covers both flights and is covered by a single contract of carriage .96 The passenger acquiring two separate tickets takes on the risk, and will consequently not be able to rely on the Regulation; in this last case, the passenger will still be entitled to resort to national private and contractual law remedies.

The above-mentioned case-law has strongly inspired the Commission Proposal for amending Regulation (EC) No 261/2004 expressly providing for the right of passengers to assistance and compensation in the case of long delays. Although it substantially took account of the above-mentioned case-law, the Commission however slightly deviated from them when determining the temporal threshold beyond which passengers have the right to compensation. It raised the 3 h delay in reaching their final destination required by the Court to benefit from this remedy to five since, according to the Commission, this would prevent the negative effect of a multiplication of cancelled flights, allowing air carriers to solve operational problems they might incur within a reasonable time. The 5 h threshold, besides operating for all flights within the European Union, also concerns extra-EU flights97 within 3500 km. For the remaining extra EU flights the threshold is 9 h for flights between 3500 and 6000 km, and 12 h for flights of more than 6000 km.98

The European Economic and Social Committee, in its above-mentioned Opinion of 11 July 2013, strongly criticised the raising of the temporal threshold by the Commission, which was manifestly contrary to CJEU case-law. Indeed, according to the Committee, claiming that raising the first threshold would bring about a reduction of cancelled flights is completely unfounded, considering that in either case air carriers would be obliged to pay compensation to passengers. The EESC, moreover, challenged the 9 and 12 h thresholds for medium to long extra-EU flights as being too long, in its opinion, and consequently called on the Commission to find adequate incentives to make carriers remain below such parameters. Finally, for the EESC, all expected delay periods should be further reduced where persons with reduced mobility are involved.

The European Parliament, in compliance with the judgments in the Sturgeon and Böck Cases, and the suggestions made by the EESC, adopted amendment 74 lowering the thresholds to 3, 5 and 7 h respectively.99

The Commission Proposal, however, in agreement with Court of Justice case-law expressly confirms that passengers missing a connecting flight are entitled to assistance and, depending on the delay calculated on the basis of the scheduled time of arrival to the final destination, to a pecuniary compensation which will have to be paid by the air carrier operating the connecting flight to or from an EU airport, even if it is a third-country carrier.100

Another delicate aspect concerns the means by which passengers are provided with the assistance provided for under Regulation (EC) No 261/2004. It is a precise obligation that in fact is rarely carried out, especially by low-cost carriers.101 Although the latter on average, for a variety of reasons, offer a more punctual service than traditional airlines, they appear less inclined to provide necessary assistance. The companies, generally operating from airports that are regional or in any event secondary compared to national hubs, justify themselves by pointing out the scarcity of adequate receptive structures. Indeed, sometimes hotels in the vicinity of airports are full, while those with vacancies are too distant.

At smaller airports, especially after a certain time, it is not always easy to access satisfactory catering services. In these cases there is a widespread practice, which should not for all that be tolerated, of issuing passengers with meal tickets which cannot in fact be used.

These justifications, which are partly understandable, should not however be considered valid, not least in view of the fact that Regulation (EC) No 261/2004 makes no distinction between airports on the basis of their size or location.

There certainly may be borderline situations that the EU Regulation does not take into account. For instance, passengers in transit to and from a third country could encounter difficulties in going through immigration control within a Member State to reach an airport located outside the airport area.

In any event, there can be no doubt that the duty of assistance for carriers entails the obligation to provide adequate accommodation. Passengers may consequently refuse to spend the night in a hotel they do not consider to match their expectations; in this case the carrier, unless there is absolutely nothing available, will have to place them in a higher class of hotel. On the other hand, the EU Regulation does not expressly provide for any limit to the accommodation that must be provided by the carrier, other than that it should be reasonable.

In this regard, the Commission’s Proposal of March 2013 offers some guidance by redefining the temporal limits within which assistance must be provided to passengers, at the same time establishing more precisely the means by which it must be provided.102 In particular, the Proposal tends to simplify the temporal thresholds, introducing a single 2 h limit for flights of any length (the current regulation provides that the thresholds for assistance are of 2, 3 or 4 h according to the length of flights).103 Regarding the means by which assistance must be given, the new Proposal takes air carriers’ economic issues and their financial capacities into greater consideration. The Commission, indeed, provides that where there are delays and cancellations due to ‘extraordinary circumstances’, air carriers may limit the right to hotel accommodation to three nights, with a maximum cost of EUR 100 each.104 The provision, which could seem like a limitation to the protection granted to passengers, according to the Commission would only have limited impact on the passengers–consumers, since they should be granted, under the above-mentioned new provisions, a more timely rerouting to other flights and, when this were not possible, airport management authorities and air carriers themselves are to draw up contingency plans. These plans, required for airports whose annual traffic has been not less than 3 million passengers for at least 3 consecutive years,105 should enable timely and adequate assistance to passengers stranded at the airport in cases of multiple cancellations and/or delays of flights, including in cases of airline insolvency or withdrawal of the operating licence.106 While it accepted limiting the right to accommodation to only 3 nights in the case of extraordinary circumstances, the EESC in its opinion on the Proposal advised the Commission to leave each Member State set the price limit for the overnights.107 This limit should not be applied to people with reduced mobility or other persons requiring special assistance.

Further limitations to passenger assistance are then provided for minor operations, namely regional flights. Where flights are of 250 km or less and operated by an aircraft with a maximum capacity of 80 seats or less (except where the flight is a connecting flight), under the Commission Proposal air carriers are not obliged to offer accommodation to passengers.

None of the limitations to assistance illustrated here applies to passengers with reduced mobility or the persons accompanying them, to persons in need of specific medical assistance, to unaccompanied children or to pregnant women provided the carrier was notified at least 48 h before the scheduled time of departure of the flight.108

Finally, the Commission Proposal clearly lays down what rights the passengers are entitled to where an aircraft is delayed on the tarmac. If the delay exceeds 1 h, carriers will have provide free of charge access to drinking water and toilet facilities while ensuring comfort of the passenger cabin by providing adequate heating or cooling. Carriers will also have to ensure that medical attention is available if required. When a tarmac delay reaches 5 h at the most,109 the aircraft shall return to the gate or another suitable disembarkation point to allow passengers to disembark (unless safety related reasons do not allow this).110 Disembarked passengers will benefit from the same protection granted under the Regulation Proposal in the case of long delays.111

6.4.3 Cancellations

Another aspect regulated by Article 5 of Regulation (EC) No 261/2004 is, as above-mentioned, the case of flight cancellation 112 that Article 2(l) laconically defines as ‘the non-operation of a flight which was previously planned and on which at least one place was reserved’.

It should be said that the definition of ‘flight cancellation’ should have been better specified by the EU legislature, which has given rise to a number of doubts regarding interpretation which have been resolved, albeit several years after the entry into force of the Regulation, by the consistent action of the Court of Justice.

The first time was the CJEU judgment in Sousa Rodríguez Case113 concerning a reference for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Pontevedra(Commercial Court, Pontevedra, Spain) which, after staying proceedings, asked the Court whether the concept of ‘flight cancellation’ was to be interpreted as referring only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons.

The Court in its reasoning recalled the definitions of ‘flight’ and ‘itinerary’ as clarified in its judgments in the Emirates Airlines and Sturgeon Cases respectively. According to this case-law, ‘a flight consists, in essence, of an air transport operation, being as it were a ‘unit’ of such transport, performed by an air carrier which fixes its itinerary’.114 The term ‘Itinerary’ is held to mean the journey to be made by aeroplane from the airport of departure to the airport of arrival according to a fixed time span, so that circumstances in which take-off occurred but the aeroplane then returned to the airport of departure for technical reasons without ever having reached the destination cannot fall within the terms of this definition.115 The Court also specified that where the planning for the original flight is abandoned all that matters in that regard is the individual situation of each passenger so transported, since it is not at all necessary that all the passengers who had booked a place on the originally scheduled flight be transported on another flight. For the Court, then, the concept of ‘flight cancellation’ does not refer only to the situation in which the aeroplane in question fails to take off at all, but also covers the case in which that aeroplane took off but, for whatever reason, was subsequently forced to return to the airport of departure. However, this consideration is also valid in the case in which the aircraft was obliged to land in a different airport form the one of destination.

The definition of ‘flight cancellation’ given by the Court was fully taken into account by the Commission Proposal for amending Regulation (EC) No 261/2004, where it lays down that: ‘A flight where the aircraft took off but, for whatever reason, was subsequently forced to land at an airport other than the airport of destination or to return to the airport of departure, shall be considered a cancelled flight’.116 It will fall to the air carrier to later demonstrate that despite having taken all possible measures available, it could not have prevented, except at the cost of intolerable sacrifice, the extraordinary circumstances it faced as a result of the cancellation of the flight. Only in this case is the carrier exempted from paying the compensation provided for under Article 5(3) of Regulation (EC) No 261/2004 .117

In the case of flight cancellation , in addition to refunding the price of the ticket or re-routing by alternative flights,118 air carriers must pay compensation of between EUR 250 and 600 according to the length of the flight,119 save when the cancellation is caused by ‘extraordinary circumstances’,120 or that passengers were notified of said cancellation with at least 2 weeks of notice.

Notice may also be less than 2 weeks, or even 7 days, provided passengers are offered, on notification, an alternative flight (re-routing) enabling them to reach their final destination less than 4 or 2 h after the original scheduled time of arrival respectively. Also in this case no compensation is to be paid to the passengers by the air carrier.

With regard to the instances of flight cancellation , the greatest doubts concerning interpretation are inevitably on the limitations to the application of the exoneration on grounds of extraordinary circumstances that enables air carrier to avoid paying the compensation which would otherwise be payable under the Regulation.

Regulation (EC) No 261/2004 in this regard does not give a definition of ‘extraordinary circumstances’ but merely provides a few examples, mainly in the non-binding recitals of its preamble, which the Commission has interpreted restrictively. Recital 14, in particular, includes, in a list that should by no means be considered exhaustive, five examples of extraordinary circumstances: cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes. According to Recital 15, however, an exceptional circumstance should be the case when the cancellation to a flight is the consequence of an air traffic management decision.

The absence of a clear and specific rule in the Regulation inevitably encourages abuse by airlines, which, a flight has to be cancelled, are more likely to invoke extraordinary circumstances in order to avoid paying any compensation.

Thus, for example, carriers often justify flight cancellations with technical problems , despite the fact that these setbacks recur time after time without being solved, or with the presence of adverse weather conditions, such as fog, despite the lack of any restrictions on the part of the competent airport management authority.

On this point, the Opinion of Advocate General Sharpston delivered on 27 September 2007 in the context of a reference for a preliminary ruling from the Østre Landsret (Eastern Regional Court of Appeal) is to be noted.121 The main question asked by the Danish Court was whether an airline could invoke Article 5(3) that exonerates air carriers from paying compensation to passengers when an aircraft is taken out of operation due to technical problems, with the result that a flight is cancelled. The other questions, closely linked and subordinated to the main one, and partially reformulated by the Advocate General, concern the behaviour expected of the carrier in the case of technical problems to one of its aircraft. In particular, what measures the air carrier could have reasonably adopted to avoid the cancellation of the flight, that is when the latter is actually ‘lawful’. Finally, and this is not a secondary aspect, the Court was asked how relevant it is that the documentation concerning the technical problems originates solely from the air carrier itself.

Before assessing the contents of the questions asked by the reference for a preliminary ruling, the Advocate General proceeded to a careful textual analysis of Article 5(3) of Regulation (EC) No 261/2004.

The inspiration for this analysis derives from the view of the referring Court, according to which the cancellation of a flight must depend on extraordinary circumstances that it was impossible to avoid by taking all reasonable measures.

On the contrary, according to Advocate Sharpston it is not necessary that the airline actually took all reasonable measures. The air carrier must only demonstrate that the circumstances could not have been avoided, in any event, even if it had taken them.122

In other words, Article 5(3) must be deconstructed in two parts. To be applied, it is necessary that the circumstances considered could not have been avoided ‘even if all reasonable measures’ had been taken. Furthermore, the circumstances must be exceptional. Indeed, according to Advocate General Sharpston, the second part of the definition cannot be interpreted as a mere explanation, since otherwise the term ‘exceptional’ would be made redundant, since it would take on the same meaning of ‘inevitable’.

This position would contradict the interpretation offered by Commission in the same Case, which espouses the interpretation of Article 5(3) given by the referring Court based on the reference to the Montreal Convention in Recital 14. Article 19 of the Convention provides that reasonable measures must be taken to avoid damage (caused by a delay).

On this point, Advocate Sharpston correctly highlights how the reference to the Montreal Convention in the 14th Recital of Regulation (EC) No 261/2004 is of a general nature and how there is no specific connection between the provisions of the two laws.123 It is not a coincidence, as previously stated, that Article 19 of the Montreal Convention does not contain the expression ‘extraordinary circumstances’.

Coming back to the possibility of invoking the extenuation under Article 5(3), there is no doubt that the withdrawal of an aircraft from service because of technical problems cannot automatically lead to the cancellation of a flight the carrier should have operated (Recital 14 implies that in some cases technical problems entailing ‘safety risks’ or ‘unexpected flight safety shortcomings’ may be considered extraordinary circumstances). The flight may be operated by resorting to a replacement aircraft.

In order to consider a technical problem as an exceptional circumstance , in the opinion of Advocate Sharpston, it should be only national courts who determine, by careful assessment, if air carriers behaved in the most appropriate way in the immediate aftermath of the discovery of the technical problems.

In particular, national courts should determine whether taking reasonable measures would in fact have prevented the withdrawal of the allotted aircraft or the actual unavailability of a replacement aircraft. From this point of view, national courts should also decide how many spare aircraft an air carrier should have at its disposal and, conversely, how many an air carrier should charter from other companies.

It must be noted that on this matter the Commission merely stated that a technical problem is an exceptional circumstance according to its nature, gravity and frequency. In less generic and more concrete terms, Advocate Sharpston holds that technical problem requiring an aircraft to be withdrawn from operation should be considered extraordinary under Article 5(3) of Regulation (EC) No 261/2004 , provided they do not regularly affect all planes or a particular type of aircraft and, in particular, have not previously occurred on the particular aircraft in question. It is thus an assessment of fact for the national court, taking into account their frequency and recurrence. In other words, the air carrier cannot rely on extraordinary circumstances to excuse behaviour indicating negligence or inexperience.

In conclusion, compensation is not payable where technical problems could not have been avoided even if the carrier had taken all reasonable measures. This includes when an aircraft is withdrawn from operation despite observing proper and timely compliance with the maintenance schedule and checks on the aircraft and, once signs of the technical problem appear, when every reasonable step in the circumstances to resolve it without withdrawing the aircraft from operation has been taken. When no replacement aircraft is available, no compensation is due if there has been adequate provision for replacements in the light of past experience. The second necessary condition is that to qualify as extraordinary circumstances, technical problems must be occasional and the unavailability of a replacement aircraft must be circumstances unforeseeable by a carrier in the light of past experience.

Another important aspect discussed in the preliminary ruling was that of sufficient evidence.

The national Court, in this connection, asked if the documentation concerning the technical problems, which originates solely from the air carrier itself, on which the burden of proof lies, is enough to prove that there actually was a technical problem that may be considered a reasonably unavoidable exceptional circumstance.

It must be noted that the Regulation does not specify the type of evidence required nor what evidence is admissible.

Consequently, in the absence of a specific harmonising measure for EU law, the only conclusion can be that this includes any means of evidence allowed by the procedural laws of Member States in similar procedures and that in any event it is for national courts to determine, on the basis of their domestic rules of evidence, whether the party bearing the burden of proof has satisfied it. Furthermore, just as for all national provisions applicable to actions based on breach of Community law, those regarding evidence must also respect the principles of equivalence and effectiveness. Indeed, requiring a degree of proof that would make demonstrating their case excessively difficult or impossible to carriers would, in particular, go against the latter principle. The case, however, did not proceed to judgment. By Order of the President of the Fourth Chamber of the Court of 11 April 2008 the case was removed from the Register.124

The Court of Justice did specify, however, in subsequent judgments, the scope of the concept of ‘exceptional circumstance’ and on whom the burden of proof should lie.