Air Passenger Rights Research Articles

Lessons from the Covid-19 Pandemic for Better EU Rules on Air Passenger Rights

Lessons from the Covid-19 Pandemic for Better EU Rules on Air Passenger Rights

Air Passenger Rights Case Law Developments from 1 December 2023 to 15 June 2024

From 1 December 2023 to 15 June 2024, there have been several case developments in relation to air passenger rights. The first part of this article highlights recent decisions from the Court of Justice of the European Union that have shed light on the interpretation of EU Regulation No 261/2004, Package Travel Directive (EU) 2015/2302 and Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts.In the case Laudamotion GmbH v. flightright GmbH the Court stressed the standardized nature of compensation for a flight delay and held that for compensation claims under Regulation (EC) No 261/2004 due to a significant flight delay, passengers must adhere to the check-in requirements specified by the airline, even if they have already completed online check-in.In the case Eventmedia Soluciones SL v. Air Europa Líneas Aéreas SAU, the Court defined the rules governing the inclusion, in a contract of carriage, of a clause prohibiting the transfer of rights by passengers and the right of claim management companies to bring proceedings against airlines. In the case Cobult UG v. TAP Air Portugal SA (TAP), the Court clarified the rules applicable to passengers’ consent to the reimbursement of the cost of their ticket by a travel voucher rather than by a sum of money. In the case Touristic Aviation Services Limited (TAS) v. Flightright GmbH, the Court ruled that the shortage of staff at the airport responsible for baggage handling could be considered an extraordinary circumstance, provided the airline could demonstrate that they had taken all reasonable measures to prevent the delay.In the case QM v. Kiwi Tours GmbH, the Court held that to establish the existence of unavoidable and extraordinary circumstances significantly impacting the performance of a travel package, for the purpose of claiming a refund under Directive (EU) 2015/2302, only the situation prevailing on the date when the traveler terminated their travel contract should be considered. In the case Eventmedia Soluciones SL v. Air Europa Líneas Aéreas, the Court ruled on the fairness of clauses governing the assignment of rights by passengers to third parties under Directive 93/13/EEC on Unfair Terms in Consumer Contracts.

Air Passenger Rights Case Law Developments from 1 January to 25 November 2023

From 1 January to 15 November 2023, there have been limited case developments in relation to air passenger rights. The first part of this article highlights recent decisions from the Court of Justice of theEuropean Union that have shed light on the interpretation of EU Regulation No 261/2004. The second part presents a non-exhaustive overview of selected significant rulings from non-EU countries. In the case Austrian Airlines v. TW, the Court defined the rules applicable to rerouted flights in the context of the coronavirus crisis. In the case FW v. LATAM Airlines Group SA (Latam Airlines), the Court clarified the rules applicable to passengers denied boarding. In the case TAP Portugal v. flightright GmbH and Myflyright GmbH, the Court ruled that passengers are entitled to compensation following a flight cancellation as the death of a crew member away from the airline’s base is not an extraordinary situation. In the case Lufthansa v. Vadhera, an Indian Court decided that moral damages may be awarded for lost and delayed luggage in the absence of any physical injury suffered by a passenger. The Mexican Supreme Court recently declared a provision of the national Civil Aviation law unconstitutional and declared that airlines must compensate passengers denied boarding due to overbooked flights with at least 25% of the ticket price, regardless of the different options offered to them. The District Tribunal of New Zealand awarded damages to a passenger as it found an airline liable of misrepresentation and set a precedent in the way airlines promote their inflight experiences. passenger rights, flight delay, flight cancellation, flight compensation, overbooking, extraordinary circumstances, repatriation flight, luggage, moral damages, misrepresentation, aviation sector, aviation law, air law

Limitation of Actions and Air Passenger Rights in Thailand: Importing the Law but Leaving Judicial Reasoning Behind

This article comparatively analyses limitations regarding the submission of passenger claims in Thailand and the EU. Thailand transposed EU Regulation 261/2004 on denied boarding, delay and cancellation of flights into its national law. Since EU Regulation 261/2004 does not contain any provision referring to a statute of limitations for legal actions, the Court of Justice of the European Union (CJEU) found that the limitation period was governed, and continues to be governed, by the domestic law of each Member State, as opposed to the Montreal Convention of 1999 which prescribes a single standard for limitation period. Despite importing this piece of secondary EU legislation, the Thai judicial branch has, so far, not followed the said CJEU judgment. The Thai court selected the two-year limitation period under its domestic law which implemented the Montreal Convention of 1999. Since this lack of harmonization does not benefit the orderly development of international civil aviation, this author suggests that the International Civil Aviation Organization (ICAO) should take action. Limitation of Actions, Air Passenger Rights, Thailand, Denied Boarding, Time Bar

Can consumer rights improve on-time performance? Evidence from European Air Passenger Rights

Under EU Air Passenger Rights legislation (“EC261”), carriers must provide assistance and cash compensation to passengers in case of long delay. We study whether the regulation reduces flight delay. EC261 applies uniformly to flights departing from the EU, but covers only EU carriers on EU-bound flights. Exploiting this variation, we find that regulated flights are 5% more likely to arrive on time, and mean arrival delay is reduced by almost four minutes. The effect is strongest on routes with little competition, and for legacy carriers. Thus, consumer rights can improve quality when incentives from competition are weak.

Consumers, Air Carriers and Workers in the European Union: Two Sides of the Triangle

While consumers in the European Union (EU) are generally afforded a high level of protection, the law on air passenger rights, by example, draws debate over the cost of such protection. In the absence of a clear definition of ‘extraordinary circumstances’ in Regulation (EC) 261/2004, the Court of Justice of the European Union (CJEU) has not always balanced consumer interests with business realities in its many preliminary rulings on interpretation of these words. Workers joined this picture in the case of Airhelp/SAS [2021], in which the CJEU held that a lawful strike by an air carrier’s own pilot unions does not amount to ‘extraordinary circumstances’. This article explores this ruling in the light of EU air passenger rights and social dialogue objectives. air passenger rights, compensation, collective bargaining, social dialogue

Book Review: Drone Law and Policy: Integration Into the Legal Order of Civil Aviation, Ronald Schnitker & Dick van het Kaar eds, Essential Air and Space Law, Publisher Information: Eleven International Publishing – The Hague. 2021.

air passenger rights, compensation, collective bargaining, social dialogue

Book Review: War and Peace in Outer Space: Law, Policy, and Ethics. Cassandra Steer and Matthew Hersch eds, Published by Oxford University Press. 2021.

air passenger rights, compensation, collective bargaining, social dialogue

Air Passenger Rights in the UK Post-Brexit: The Position so Far

This article summarizes air passenger rights in the UK post-Brexit, the status of European Union (EU) law that has been retained by the UK and how it is to be interpreted. It concludes that in practical terms there is little material change to date. Further, divergence is unlikely due to a combination of the statutory scheme adopted by the UK in respect of the implementation of Brexit and the terms of the Trade and Cooperation Agreement (TCA) made with the EU – unless and until the EU departs significantly from what its law provided as at Brexit in relation to air passenger rights. Air Passenger Rights, Brexit, UK, Status, Interpretation

Validity of choice of court agreements, abusive terms in air carriage contracts, assignments and compensation, is there room for anyone else? (Comments on CJEU Judgment Delayfix, c-519/19)

In Delayfix case, the Court of Justice of the European Union (CJEU) has interpreted the formal and substantive validity of a “choice of court agreement” included in an air carriage of passenger’s contract. But, for the first time, the CJEU has openly declared the unfair nature of these choice of court agreements, not only for the passengers, but also for third parties assigned by them. In opposition with former case law on the effects of a choice of court agreement for assignees. In carriage of passengers’ contracts, third parties are usually agencies devoted to the defense of air passenger rights and collection of credits who claim for the compensation rights in accordance with the rights conferred by Regulation 261/2004. From the EU Private International Law approach, the preliminary ruling is of interest, being the Brussels I bis regulation the instrument for clarifying whether this choice of court agreement should be deemed as enforceable or not, regarding the requirements of Article 25 Brussels I bis due to these contracts are not considered as consumer contracts. To the analysis of the merits and substantive law, contrarily than under EU Private International law rules these contracts are considered as Business to consumer (B2C) contracts, and Directive 93/13/CEE and other EU Consumer rules must be applied so as to determine the unfair nature of these clauses in these contracts.

The Right to Safe Transport + Air Passenger Rights After COVID-19

The coronavirus crisis has been extremely disruptive for the international passenger transportation market. It has also triggered a major legal disruption in the field of passenger rights. In recent decades, the focus of air passenger policy has largely shifted from safety to rights in case of delay and cancellation, a change predominantly induced by the EU. COVID-19 has led to a major paradigm shift, with safety again becoming the number one policy target. Passengers have a wide range of tools to enforce their rights to timely travel and these remedies have made an effective contribution to a reduction in delays and cancellations in air transport. Passengers’ remedies in case of unsafe transport seem largely limited to the possibility of bringing an action in case of bodily injury, lésion corporelle, based on the Montreal Convention (MC). This contribution aims firstly to evaluate the effectiveness of this remedy as a preventive tool for increasing passenger safety. Secondly, it aims to assess the impact of COVID-19 on existing passenger rights in respect of cancellation and delay, as well as the impact of existing passenger rights policy on airlines’ operational margin for enhanced safety management. Based on this analysis, we aim to make recommendations for a more effective model for the protection of passengers’ safety, while at the same time embedding safety in the existing passenger rights policy instead of overriding it. Sommaire: La crise du coronavirus a extrêmement perturbé le marché du tra

Taking Air Passenger Rights Seriously: The Case Against the Exclusivity of the Montreal Convention

Abstract The 1999 Montreal Convention seeks to unify certain rules concerning the liability of air carriers in international air transport. This article highlights the problems that the exclusion of national rules in favour of a unified international legal regime poses from a consumer protection point of view. International trade regulation carries an inherent structural risk of bias in favour of industry rather than consumer interests. Drawing inspiration from international human rights law, the alternative of an inspired approach based on subsidiarity is put forward, which, instead of seeking rigid uniformity at international level, allows for the recognition of a complementary role for international, regional and national levels in protecting consumers. The feasibility of adopting such a perspective in interpreting the Montreal Convention is also considered.

Striking a healthier balance between air passenger rights and air carriers' vital interests in the light of Covid-19

Regulation 261/2004 is a directly applicable EU legal act establishing common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellations, or long delays of flights The ‘extraordinary circumstances defence' is expressly provided by Regulation 261/2004, in favour of air carriers to justify the refusal to pay compensation to passengers However, the concept of extraordinary circumstances is far from being clear, and continuously raises questions of interpretation Covid-19, as an extraordinary circumstance, brings previous discussions on the weaknesses of Regulation 261/2004 back to light, particularly regarding the extent of air passengers’ rights embedded in Regulation 261/2004 Accordingly, this research aims to discuss whether the Regulation ensures the proper balance between the interests of passengers and air carriers in emergencies like Covid-19 Possible developments of existing regulation, allowing for the striking of a better balance between the interests of the aviation industry and consumer rights in situations like Covid-19, and thus ensuring the sustainability of the aviation market, are discussed The discussion focuses on the regulation surrounding vouchers as an alternative method of reimbursement in case of the cancellation of a flight, and the extent of the right to offer assistance and care to passengers awaiting another flight

‘I Know that I Know Nothing’: Extraordinary Circumstances in Air Passenger Rights Regulation

According to European Passengers Rights Regulation (EU 261/2004), passengers are entitled to standardized compensation for flight cancellation and delays, unless the disruption was caused by ‘extraordinary circumstances’. Despite themajor legal and financial implications of this provision, its exact content remains uncertain, causing a constant debate between passengers, air carriers and national authorities. The European Court of Justice has clarified many of the disputed cases, but in some occasions its decisions have caused further confusion. In the last two years, new decisions of the European Court of Justice, such as on the matter of wildcat strikes, and relevant reports of European instruments show that the problems intensify. This article will investigate the current state of affairs with regard to the application of the ‘extraordinary circumstances’ exception and address some of the issues that remain uncertain, in an attempt to demonstrate the importance of the matter in the general context of European law. Deficiencies in the interpretation and enforcement of the Regulation will have to be addressed, in order to promote a more coherent application to the benefit of passengers and airlines. air transport, Regulation 261/2004, passenger rights

EU Regulation No 261/2004 on Air Passenger Rights: The Impact of the COVID-19 on Flight Cancellation and the Concept of Extraordinary Circumstances

The outbreak of the COVID-19, which rapidly reached the level of a pandemic, has dramatically affected the aviation industry this year. An important number of flights have been cancelled and passengers are seeking reimbursement and compensation for their travel disruption. The European Regulation No 261/2004 on air passenger rights establishes a specific liability regime in case of flight cancellation. This article analyses the effects of this unparalleled health situation with respect to the passenger rights set out in this European regulation. It discusses the question of reimbursement, rerouting, care, and compensation with regard to the concept of extraordinary circumstances. It also calls for a realistic response from the European Institutions to further protect the aviation industry. Cancellation, Compensation, Flight, Reimbursement, 261/2004

Supporting the needs of special assistance (including PRM) passengers: An international survey of disabled air passenger rights legislation

Passengers who require special assistance at airports and on aircraft represent one of the fastest growing demographics for aviation worldwide. At some airports, annual growth in PRM (persons with reduced mobility) traffic is six times greater than the overall rate of passenger growth yet barriers to accessible air travel remain and disabled passengers continue to exhibit a lower propensity to fly than other travellers. In an attempt to aid disabled passengers’ accessibility to air travel, countries have introduced dedicated air passenger rights and consumer protection legislation which seeks to specifically address the needs of disabled travellers. These regulations typically state minimum service standards and levels of service provision that must be provided by air transport operators to enable disabled travellers to access air travel on an equal basis to other passengers. These legal interventions, however, have been developed on a country-by-country basis and this has created a lack of international regulatory alignment. This paper reports on the findings of an international survey of disabled air passenger rights legislation in 47 countries covering 20 aviation markets (the single market in the European Union and 19 other States). It identifies the differences in regulatory frameworks, highlights their implications for consumers and ultimately concludes by recommending the formation of more harmonised global policy making to better support the needs of special assistance passengers and facilitate their greater mobility by air.

The Expanding Right to Damages in the Case Law of CJEU

A network analysis on how the CJEU interprets the right to damages in the fields of data protection, air passenger rights, defective product liability and private enforcement of competition law.

Can Regulation Improve Service Quality? Evidence from European Air Passenger Rights

Under EU Air Passenger Rights legislation (“EC261”), carriers must provide assistance and cash compensation to passengers in case of long delay. We study whether the regulation reduces flight delay. EC261 applies uniformly to flights departing from the EU, but covers only EU carriers on EU–bound flights. Exploiting this variation, we find that regulated flights are 5% more likely to arrive on time, and mean arrival delay is reduced by almost four minutes. The effect is strongest on routes with little competition, and for legacy carriers. Thus, consumer rights can improve quality when incentives from competition are weak.

Disrupted Flights and Information Duties of Air Carriers: The Interplay Between Regulation (EC) No 261/2004 on Air Passenger Rights and the Unfair Commercial Practices Directive

Regulation (EC) No 261/2004 on passenger rights in cases of denied boarding and of cancellation or delay of flights includes provisions on the air carrier’s duty to inform passengers of their rights. In this regard, the Regulation interacts with Directive 2005/29/EC on Unfair Business-to-Consumer Commercial Practices. Failure of the carrier to provide complete, clear and accurate information to passengers could be an infringement of both legislative instruments, and entail parallel or subsequent administrative enforcement proceedings at both national and crossborder level. This article analyses the carrier’s duty to inform, pursuant to the provisions of these instruments. Special emphasis is laid on certain parameters of administrative enforcement, especially the power to investigate infringements as well as the duplication of proceedings and penalties, taking into account aspects of fundamental human rights.

Conciliation Bodies as an Effective Tool for the Enforcement of Air Passenger Rights: Examination of an Exemplary Model in Germany

Conciliation Bodies as an Effective Tool for the Enforcement of Air Passenger Rights: Examination of an Exemplary Model in Germany