Revised EU Guidelines Clarify Air Passenger Rights Under Regulation 261/2004

On July 22, 2024, the European Commission approved revised Interpretative Guidelines (the “Guidelines”) on Regulation (EC) No 261/2004 (“Regulation 261/2004”), which address air passenger rights concerning compensation and assistance for denied boarding, cancellations, and delays and on Regulation (EC) No 2027/97 on air carrier liability in case of accidents. These new Guidelines incorporate essential EU case law that has shaped passenger rights since 2016. Whilst they do not introduce new information or changes to the practical application of Regulation 261/2004, they will serve as interim guidance until the anticipated revision of Regulation 261/2004 is implemented. However, the Guidelines are not a substitute for, nor do they override, the Court of Justice of the European Union’s (the “CJEU”) interpretation of the law.

Need for Revision

Regulation 261/2004, which has been in force since February 2005, sets minimum standards for passenger protection within the aviation sector, adding a crucial consumer dimension to the liberalization of the aviation market. Over time, discrepancies in how these provisions have been interpreted and enforced across EU Member States have led to inconsistencies, making it difficult for passengers to assert their rights. The Commission’s White Paper on Transport (2011) and subsequent communications emphasized the need for a uniform interpretation and effective enforcement of EU law to ensure both industry fairness within the aviation industry and robust protection for passengers.

The previous Guidelines, issued in 2016, along with special guidance during the COVID-19 crisis, underscored the necessity of updates that reflect the evolving legal landscape, particularly in light of new case law from the CJEU.

Key Updates

The revised Guidelines aim to clarify and enhance the application of Regulation 261/2004. They integrate recent CJEU rulings, providing greater clarity on the rights of passengers and the obligations of airlines. For instance, the Guidelines include a detailed explanation of the conditions under which passengers are entitled to compensation, particularly in cases of denied boarding, cancellations, and delays. The section on extraordinary circumstances, which can exempt airlines from liability, has been expanded to reflect the various categories the CJEU has ruled upon. However, the interpretation of “reasonable measures” remains somewhat vague, as the CJEU continues to adopt a case-by-case approach, leaving national courts to decide on specific circumstances.

A new section has been added to address large-scale travel disruptions, drawing from experiences such as the Icelandic volcanic eruption in 2010 and the COVID-19 pandemic. The Guidelines acknowledge the difficulties airlines face in re-routing passengers quickly during such events and suggest that it may be preferable in some cases for passengers to receive a reimbursement or a re-routing offer at a later date. This approach emphasizes the need for airlines to communicate effectively with passengers and consider their individual preferences, posing challenges for automated booking systems.

Compensation Claims and National Enforcement

The Guidelines also reinforce the role of National Enforcement Bodies (“NEBs”) in ensuring that airlines comply with Regulation 261/2004. NEBs are responsible for monitoring adherence to the rules and handling passenger complaints. Additionally, the Guidelines encourage the use of Alternative Dispute Resolution (“ADR”) mechanisms to resolve disputes between passengers and airlines more efficiently and cost-effectively, whilst helping to reduce the burden on national courts.

The section on compensation claims largely mirrors the COVID-19 guidance from 2020. Whilst the new Guidelines are intended to apply to other events of massive travel disruption, some issues remain unaddressed. For example, the Guidelines do not fully explore scenarios involving prolonged adverse weather conditions, which can cause significant travel disruptions and raise questions about the adequacy of re-routing measures and the extent of the airline’s obligations.

Conclusion

The revised Guidelines are aimed at ensuring a more consistent and effective application of Regulation 261/2004 across the EU. By clarifying key terms, detailing compensation claims and passenger rights, outlining air carrier liabilities, and emphasizing the importance of enforcement and compliance, the Commission seeks to safeguard passenger rights, promote fair practices in the aviation industry, and foster trust between passengers and airlines. The Guidelines will remain in place until a formal revision of Regulation 261/2004 is adopted and remain subject to interpretation by the CJEU.