LEGAL IAN SKUSE
PASSENGER RIGHTS IN THE SPOTLIGHT
THE LATEST ISSUES ARISING FROM REGULATION 261/2004 DO NOT LOOK FAVOURABLE FOR AIRLINES
body for European Union (EU) Regulation 261/2004, regarding the provision of help and assistance at airports and the compensation for passengers when flights are cancelled or delayed. The CAA has carried out a six- month review, including an analysis of the performance of 15 major airlines, regarding the implementation of compensation, particularly after some key legal decisions mainly in favour of passengers.
T
COMPENSATION Most passengers taking flights from an EU airport, or flying with a community carrier, will be aware of the scope of the regulation. In particular, passengers are entitled to financial compensation when cancellation or long delays occur, providing these are within the airline’s own control, and within the scope of the operation of the airline and its equipment.
Airlines see themselves as easy targets: despite
well-managed and maintained fleets, and effective cockpit crews, they can be faced with unexpected and serious technical problems with
BUYINGBUSINESSTRAVEL.COM
he Civil Aviation Authority (CAA) is the UK’s national enforcement
aircraft where grounding and repair is mandatory, and where spare parts might not be readily available.
Other causes of delays might be weather, industrial action, air traffic control, late arrival of inbound aircraft or cabin crew sickness. Short delays can become compounded and result in missed slots and connections. Payment of compensation under the regulation has become a major financial issue for airlines operating in Europe.
LEGAL ISSUES There have been various developments in a number of recent high-profile cases regarding passenger rights and Regulation 261/2004. In the case of Jet2 versus
Huzar, during October 2014, the UK Supreme Court dismissed an application to appeal against two rulings from the previous July, to the effect that nearly all technical faults to an aircraft will not be ‘extraordinary’ circumstances entitling airlines to defend technical delay claims. Regarding Dawson versus Thomson Airways, the Supreme Court refused to interfere regarding the limitation period during which a claim must be brought under the regulation. The airlines
Airlines see
themselves as easy targets, despite well managed and maintained fleets
argued that two years should apply as usual for airline claims, but the ruling was that compensation claims remain live for up to six years from the flight date. Finally, 2015 has seen a
further referral to the European Court of Justice (ECJ) in the case of Van der Lans versus KLM, on whether technical delays provide a defence for the airline, with an interpretation sought by the Dutch courts. The progress of this case to the ECJ will take many months, and the result is uncertain. Some airlines had put technical delay claims on hold pending this decision but this has now been stopped by test cases at Liverpool County Court in February finding in favour of the delayed passengers.
CAA TAKES ACTION In view of these continuing problems, the CAA’s six-month review resulted in its report, Financial Compensation, Technical Faults and Time Limitations – Compliance Report. In this review, some 15 airlines were required to respond to questions raised by the CAA, particularly regarding the payment of compensation for delays caused by technical faults, and the application of the six-year time limit rule. As a result of the
investigations, the CAA has announced that it will bring legal action under Part 8 of the Enterprise Act 2002 against three specified airlines – Aer Lingus, Jet2 and Wizz Air – for breach of the regulation. The allegations include Jet2 and Wizz Air failing to satisfy the regulator that they are consistently paying compensation for disruption caused by technical faults; and Jet2 and Aer Lingus failing to give the CAA satisfactory evidence that they proactively provide their passengers with information about their legal rights during disruption. For their part, the airlines concerned will have the opportunity to see whether they can justify their respective positions. In the meantime, most airlines are complying with the position taken by the CAA. The EU announced a review of the regulation but it is not known when progress will be made with this.
Ian Skuse is a partner and head of Piper Smith Watton LLP’s Aviation, Travel & Tourism department. Piper Smith Watton LLP (
pswlaw.co.uk) is a business and private client law firm based in Westminster.
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