Europaudvalget 2024-25
KOM (2013) 0130
Offentligt
3031374_0001.png
Study on the current level of
protection of air passenger
rights in the EU
Final report
Study contract
no. MOVE/B5/2018 - 541
Steer
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
EUROPEAN COMMISSION
Directorate-General for Mobility and Transport
Directorate B
—
Investment, Innovative & Sustainable Transport
Unit B5
—
Social Aspects, Passenger Rights & Equal Opportunities
Contact:
The Commission’s Air Passenger Rights Team
E-mail:
[email protected]
European Commission
B-1049 Brussels
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
EUROPEAN COMMISSION
Study on the current level of
protection of air passenger
rights in the EU
Final report
Study contract
no. MOVE/B5/2018 - 541
Directorate-General for Mobility and Transport
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0004.png
Europe Direct is a service to help you find answers
to your questions about the European Union.
Freephone number
(*):
00 800 6 7 8 9 10 11
(*)
The information given is free, as are most calls (though some operators, phone
boxes or hotels may charge you).
LEGAL NOTICE
This document has been prepared for the European Commission however it reflects the views only of the authors, and the
Commission cannot be held responsible for any use which may be made of the information contained therein.
More information on the European Union is available on the Internet (http://www.europa.eu).
Luxembourg: Publications Office of the European Union, 2020
ISBN 978-92-76-14244-7
doi: 10.2832/529370
© European Union, 2020
Reproduction is authorised provided the source is acknowledged.
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0005.png
Final Report
January 2020
Study on the current level of
protection of air passenger
rights in the EU
Directorate-General for Mobility and Transport, European Commission
Our ref: 23366401
Client ref: MOVE/B5/2018 - 541
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0007.png
Final Report
January 2020
Study on the current level of
protection of air passenger rights in
the EU
Prepared by:
Steer
28-32 Upper Ground
London SE1 9PD
+44 20 7910 5000
www.steergroup.com
Prepared for:
Directorate-General for Mobility and Transport,
European Commission
1049 Brussels
Belgium
Client ref: MOVE/B5/2018 - 541
Our ref: 23366401
Steer has prepared this material for Directorate-General for Mobility and Transport, European Commission. This
material may only be used within the context and scope for which Steer has prepared it and may not be relied
upon in part or whole by any third party or be used for any other purpose. Any person choosing to use any part of
this material without the express and written permission of Steer shall be deemed to confirm their agreement to
indemnify Steer for all loss or damage resulting therefrom. Steer has prepared this material using professional
practices and procedures using information available to it at the time and as such any new information could alter
the validity of the results and conclusions made.
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0008.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Contents
Disclaimer ........................................................................................................................... i
Glossary ............................................................................................................................. ii
List of countries in scope for the analysis............................................................................. v
Executive summary ............................................................................................................vi
Background......................................................................................................................... vi
Methodology ...................................................................................................................... vi
Key findings ........................................................................................................................ vi
1
Introduction.............................................................................................................. 1
Background......................................................................................................................... 1
Need for the study.............................................................................................................. 2
Methodology ...................................................................................................................... 4
Organisation of this report ............................................................................................... 10
2
Overall quantitative update on the APR situation .................................................... 11
Introduction ...................................................................................................................... 11
Number of flights.............................................................................................................. 12
Cancellations .................................................................................................................... 12
Delays ............................................................................................................................... 15
Number of passengers affected by flight cancellations and delays ................................. 24
Passengers denied boarding and downgraded ................................................................ 29
Proportion of passengers who claim compensation ........................................................ 31
Proportion of airlines that comply with the Regulation................................................... 33
Mishandled baggage and number of luggage-related complaints................................... 35
Summary of findings......................................................................................................... 38
3
Air passengers’ perspective on their rights
............................................................... 40
Introduction ...................................................................................................................... 40
Application of the 10 core EU passenger rights ............................................................... 40
Expectations of air passengers regarding their rights ...................................................... 58
Passengers with disabilities or reduced mobility ............................................................. 71
Summary of findings......................................................................................................... 83
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0009.png
Study on the current level of protection of air passenger rights in the EU | Final Report
4
Airlines’ and airports’ perspective on air passenger rights
........................................ 85
Introduction ...................................................................................................................... 85
Cost of air passenger rights implementation for airlines ................................................. 86
Drivers of air passenger rights cost growth for airlines ................................................. 103
Impact of air passenger rights cost ................................................................................ 110
Cost of air passenger rights implementation for airports .............................................. 112
Positions of operational stakeholders ............................................................................ 115
Summary of findings....................................................................................................... 117
5
Monitoring and enforcement processes under Regulation (EC) No 261/2004 ...........120
Introduction .................................................................................................................... 120
Overview of enforcement bodies ................................................................................... 120
Complaint handling ........................................................................................................ 124
Enforcement ................................................................................................................... 132
Other activities undertaken by NEBs.............................................................................. 137
View of NEBs on airline compliance with the Regulation .............................................. 138
Summary of findings....................................................................................................... 141
6
Contribution of the general consumer protection framework, other means of redress
and claim agencies .................................................................................................145
Introduction .................................................................................................................... 145
General consumer protection framework ..................................................................... 148
Public enforcement mechanisms ................................................................................... 150
Individual complaint handling and redress .................................................................... 151
Summary of findings....................................................................................................... 166
7
Development of air passenger rights outside the EU ...............................................168
Introduction .................................................................................................................... 168
ICAO core principles on consumer protection ............................................................... 169
Air passenger rights in non-EU countries ....................................................................... 174
Summary of findings....................................................................................................... 184
8
Impact of airline insolvencies .................................................................................185
Introduction .................................................................................................................... 185
Airline insolvencies ......................................................................................................... 185
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0010.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Total costs incurred by passengers ................................................................................ 192
Protection mechanisms and effectiveness ..................................................................... 201
Potential improvements ................................................................................................. 208
Summary of findings....................................................................................................... 214
9
Conclusions............................................................................................................217
Introduction .................................................................................................................... 217
Summary of evolution of air passenger rights ............................................................... 217
Ways forward ................................................................................................................. 228
Figures
Figure 1.1: Overview of methodology .......................................................................................... 5
Figure 1.2 Overview of stakeholder engagement status by stakeholder group .......................... 7
Figure 2.1: Number of cancelled flights (airline and non-airline attributable cancellations) .... 15
Figure 2.2: Number of delayed flights of over 2 hours (Intra-EU and extra-EU delays) ............ 17
Figure 2.3: ATFM en-route delay (2011-2024) ........................................................................... 18
Figure 2.4: Intra-EU delayed flights by length of delay .............................................................. 19
Figure 2.5: Extra-EU delayed flights by length of delay .............................................................. 19
Figure 2.6: Number of delayed flights of over 2 hours (airline and non-airline attributable
delays) ......................................................................................................................................... 22
Figure 2.7: Number of cancelled passengers (airline and non-airline attributable cancellations)
.................................................................................................................................................... 26
Figure 2.8: Number of delayed passengers (airline and non-airline attributable delays) (long
delays of two hours or more) ..................................................................................................... 27
Figure 2.9: Length of delay experienced by passengers by distance band (2018) ..................... 28
Figure 2.10: Number of passengers downgraded and denied boarding .................................... 30
Figure 2.11: Passenger successful claim rate for cancellations, delays and denied boarding ... 32
Figure 2.12: Instances of mishandled baggage........................................................................... 36
Figure 2.13: Instances and complaints of mishandled baggage ................................................. 37
Figure 3.1: Proportion of PRM passengers at reporting airports (2011-2018) .......................... 74
Figure 3.2: Proportion of PRM passengers reported by airlines (2015-2018)............................ 74
Figure 3.3: Index of PRM complaints received by NEBs, PRMs reported by airlines and total
passengers (2015-2018) ............................................................................................................. 80
Figure 4.1: Scenarios used to estimate airline APR costs ........................................................... 87
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0011.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.2: Analytical framework for estimates of airline APR costs.......................................... 88
Figure 4.3: Regulation 261/2004, passenger entitlements (<1,500 km) .................................... 89
Figure 4.4: Regulation 261/2004, passenger entitlements (>1,500 km (Intra-EU) or <3,500 km
(Extra-EU))................................................................................................................................... 89
Figure 4.5: Regulation 261/2004, passenger entitlements (>3,500 km (extra-EU))................... 90
Figure 4.6: Scenario 3 total costs ................................................................................................ 93
Figure 4.7: Airline operating cost items share
–
Low-cost carriers (2014 and 2018) ................. 95
Figure 4.8: Airline operating cost items share
–
Network carriers (2014 and 2018) ................. 96
Figure 4.9: Airline average yield and 261-related cost per passenger ....................................... 97
Figure 4.10: Airline average yield and 261-related cost per passenger affected by disruption. 97
Figure 4.11: Airline average EBIT and 261-related cost per passenger ...................................... 98
Figure 4.12: Airline route profitability delay scenarios .............................................................. 99
Figure 4.13: Costs incurred by LCC carrier on short-haul route arising from cancellations and
delays ........................................................................................................................................ 101
Figure 4.14: Interactions of airlines other parties on air passenger rights .............................. 104
Figure 4.15: Number of days airlines state they take to respond to passenger claims ........... 106
Figure 5.1: Development of complaint numbers following the CJEU ruling in 2015................ 125
Figure 5.2: Index (2011=100) of growth in the complaint volume compared to growth in
passengers ................................................................................................................................ 126
Figure 5.3: Growth in the complaint volume across Member States ....................................... 127
Figure 6.1: Illustration of possible private enforcement mechanisms available to passengers to
obtain financial compensation ................................................................................................. 147
Figure 6.2: Interactions between passengers, airline and other redress bodies ..................... 160
Figure 6.3: Interactions between passengers, claim agency, airline and other redress bodies
.................................................................................................................................................. 160
Figure 6.4: Proportion of compensation retained .................................................................... 161
Figure 7.1: Map of non-EU countries covered by the analysis ................................................. 168
Figure 7.2: Illustration of spectrum of approaches to protecting passenger rights ................. 174
Figure 8.1: EU airlines ceasing operations 2011-October 2019 ............................................... 186
Figure 8.2: Proportion of insolvent airlines by airline service type between 2011-October 2019
.................................................................................................................................................. 186
Figure 8.3: Estimation of number of passengers affected ....................................................... 188
Figure 8.4: Passengers impacted by airline insolvencies (2011-October 2019) ....................... 189
Figure 8.5: Proportion of passenger cover for airline insolvencies by year (2011-July 2019).. 194
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0012.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 8.6: Proportion of passenger cover for airline insolvencies by year (PTD excluded) .... 195
Figure 8.7: Proportion of passenger cover for airline insolvencies (2011-July 2019) .............. 196
Figure 8.8: Recoverable and non-recoverable costs incurred .................................................. 196
Figure 9.1: Key stakeholders’ main concerns and areas of convergence
................................. 229
Tables
Table 1.1: Overview of 2013 proposal for the revision of Regulation 261/2004 ......................... 3
Table 1.2: Stakeholder engagement methods, approach and target stakeholders ..................... 6
Table 1.3: Data collected .............................................................................................................. 8
Table 2.1: EU+3 flights (2011-2018) ........................................................................................... 12
Table 2.2: Number of cancelled flights ....................................................................................... 13
Table 2.3: Number of cancelled flights attributable to airlines .................................................. 14
Table 2.4: Flight delay data disaggregation ................................................................................ 16
Table 2.5: Number of delayed flights of over 2 hours ................................................................ 16
Table 2.6: Extra-EU flights delayed by over 2 hours by carrier type .......................................... 20
Table 2.7: Number of delayed flights by over 2 hours attributable to airlines .......................... 21
Table 2.8: EU+3 seats and load factor (2011-2018) ................................................................... 24
Table 2.9: Intra-EU+3 and Extra-EU+3 seats and load factor (2011-2018)................................. 25
Table 2.10: Number of passengers affected by a cancellation................................................... 25
Table 2.11: Number of delayed passengers (long delays of two hours or more) ...................... 26
Table 2.12: Number of passengers downgraded and denied boarding ..................................... 30
Table 2.13: Instances of mishandled baggage in Europe (millions) ........................................... 36
Table 2.14: Instances and complaints of mishandled baggage .................................................. 37
Table 3.1: Ten core EU passenger rights..................................................................................... 40
Table 3.2: Extent to which the ten core passenger rights are implemented in air transport by
European legislation ................................................................................................................... 44
Table 3.3: Extent to which the ten core passenger rights are enforced in air transport ........... 52
Table 3.4: Process, time and costs involved for passengers claiming ........................................ 66
Table 3.5: High-level comparison of automatic and automated compensation ........................ 69
Table 3.6: Applicability of Regulation 1107/2006 ...................................................................... 72
Table 3.7: PRM Regulation enforcement and sanctions ............................................................ 81
Table 4.1: Assumptions made for airline costs (2018) ............................................................... 92
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0013.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 4.2: Scenario 3 total costs ................................................................................................. 93
Table 4.3: 261-related cost per passengers and per passenger affected by disruption ............ 94
Table 4.4: Airline route profitability on 4-hour delay scenarios................................................. 99
Table 4.5: Impact of APR by airline business model ................................................................. 110
Table 4.6: Overview of airport costs for assisting passengers ................................................. 113
Table 5.1: Summary of competence for NEBs .......................................................................... 121
Table 5.2: Enforcement of the Montreal Convention .............................................................. 122
Table 5.3: Summary of type of enforcement body................................................................... 123
Table 5.4: Overview of individual complaint handling process for NEBs ................................. 130
Table 5.5: Time frame for complaint handling process ............................................................ 132
Table 5.6: Overview of enforcement powers of NEBs for Regulation 261/2004 ..................... 133
Table 5.7: Overview of sanctioning power of NEBs for Regulation 261/2004 ......................... 135
Table 6.1: Tools in the area of air passenger rights .................................................................. 145
Table 6.2: Overview of ADR bodies in each Member State ...................................................... 153
Table 6.3: Overview of enforcement power of ADRs ............................................................... 154
Table 6.4: Adherence of APRA’s code of conduct to EC’s information notice
......................... 162
Table 7.1: Non-EU countries covered by the analysis .............................................................. 168
Table 7.2: Comparison of ICAO Core Principles on Consumer Protection and EU framework 171
Table 7.3: Comparison of ICAO and IATA core principles on consumer protection and EU
framework ................................................................................................................................ 172
Table 7.4: Regulatory, voluntary and mixed air passenger rights regimes .............................. 175
Table 7.5: The scope of air passenger rights legislation in EU vs non-EU ................................ 177
Table 7.6: EU vs non-EU air passenger rights legislation (regulatory) - general features ........ 179
Table 7.7: EU vs non-EU air passenger rights legislation (voluntary) - general features ......... 180
Table 7.8: EU vs non-EU compensation amounts..................................................................... 180
Table 8.1: Assumed load factors by airline classification (2018) .............................................. 188
Table 8.2: Passengers affected by airlines ceasing operations (2011-October 2019).............. 190
Table 8.3: Costs incurred by passenger type ............................................................................ 193
Table 8.4: Recoverable costs under different protection schemes .......................................... 194
Table 8.5: Average incremental cost incurred per passenger by type over 2011-July 2019.... 197
Table 8.6: Proportion of incremental cost recoverable by passenger type ............................. 198
Table 8.7: Total estimated costs to passengers and proportion of costs recoverable 2011-July
2019 .......................................................................................................................................... 199
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0014.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 8.8: Availability of chargeback in the EU and Norway .................................................... 205
Table 8.9: Possible improvements to consumer facing measures ........................................... 208
Table 9.1: Problems and possible ways forward ...................................................................... 230
Appendices
A
B
C
D
E
F
G
H
Details of the stakeholder consultation
Workshop summaries
Cost of APR implementation (detailed assumptions and results)
Right to redress overview
EU+3 NEB fiches
Non-EU air passenger rights country fiches
Airline insolvency case studies
List of insolvent airlines
236
246
255
272
284
403
464
494
January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0015.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Disclaimer
Steer has prepared this material for the Directorate-General for Mobility and Transport,
European Commission. This material may only be used within the context and scope for which
Steer has prepared it and may not be relied upon in part or whole by any third party or be
used for any other purpose. Any person choosing to use any part of this material without the
express and written permission of Steer shall be deemed to confirm their agreement to
indemnify Steer for all loss or damage resulting therefrom. Steer has prepared this material
using professional practices and procedures using information available to it at the time and as
such any new information could alter the validity of the results and conclusions made.
January 2020 | i
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0016.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Glossary
Acronym
A4E
AACO
ACI
ACTP
ADP
ADR
AENA
AESA
ANA
ANAC
APC
APF
APR
APRA
AQST
ARN
ASA
ATC
ATFM
ATM
BEUC
BNAAC
CAC
CAC
CAGR
CAI
CB
CCA
CEDR
CH
CHOICE
CIE
CNIACC
CODA
CPC
CRPC
CTA
DECO
DERKE
Definition
Airlines for Europe
Arab Air Carrier’s Organisation
Airport Council International
Association of Public Transport Clients (Belgium)
Aéroports de Paris
Alternative dispute resolution body
Spanish Airports and Air Navigation
Spanish Aviation Safety and Security Agency
Aeroportos de Portugal
Portuguese Civil Aviation Authority
Romanian consumer protection body
The Passenger and Passenger Rights Agency (Austria)
Air Passenger Rights
Association of Passenger Rights Advocates
Transport Quality of Service Authority (France)
National Board for Consumer Disputes (Sweden)
Airport Services Association
Air Traffic Control
Air Traffic Flow Management
Air Traffic Management
The European Consumer Organisation
Bulgarian National Association Active Consumers
The Croatian Alliance of Consumers
Consumers’ Association of Canada
Compound Annual Growth Rate
Consumers Association of Ireland
Consumentenbond
–
Dutch consumer association
Cyprus Consumers Association
Centre for Effective Dispute Resolution (CEDR)
Switzerland
Australian consumer advocacy group
Consumatori Italiani per l’Europa
National Information and Arbitration Centre for Consumer Disputes (Portugal)
Central Office for Delay Analysis
Consumer Protection Cooperation
Consumer Rights Protection Centre of Latvia
Canadian Transportation Agency
The Portuguese Association for Consumer Protection
Regional Transport Association of Debrecen (Hungary)
January 2020 | ii
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0017.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Acronym
DG MOVE
DGAC
DGCA
DOT
EC
ECA
ECAA
ECC
ECDR
ECTAA
EDF
EEA
EFTA
ENAC
EPF
ERAA
ETL
EU
EU+3
FEOSZ
FNAUT
FOCA
FOMCA
FRC
FSC
FTE
GBTA
IATA
ICAO
ILT
IPP
ITM
KEPKA
LBA
LCC
LPIAA
MAG
MTV
NAAP
Definition
Directorate General for Mobility and Transport for the European Commission
French Civil Aviation Authority
Directorate General of Civil Aviation
Department of Transportation (US)
European Commission
European Court of Auditors
Ethiopian Civil aviation Authority
European Consumer Centre
European Centre for Dispute Resolution
European Travel Agents and Tour Operators Association
European Disability Forum
European Economic Area, includes EU countries and also Iceland, Liechtenstein and
Norway
European Free Trade Association
Italian Civil Aviation Authority
European Passenger Federation
European Regions Airlines Association
Estonian Consumers Union
European Union (in the sense of EU28)
EU28 + Iceland, Norway and Switzerland
National Federation of Associations for Consumer Protection in Hungary
National Federation of Transport User Associations (France)
Federal Office of Civil Aviation
Federation of Malaysian Consumers Associations
Consumers’ Federation of French –
speaking Switzerland
Full-service carrier or network airline
Full Time Equivalent (employees)
Global Business Travel Association
International Air Transport Association
International Civil Aviation Organisation
Human Environment and Transport Inspectorate
Scheduled Airline Failure Insurance Provider
Hungarian Ministry for Innovation and Technology
Greek Consumers Protection Centre
National Civil Aviation Authority of Germany
Low-cost carrier or low-fare airline
Latvian National Association for Consumer Protection
Manchester Airports Group
Tourism and Travel Mediation (France)
National Association of Airline Passengers
January 2020 | iii
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0018.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Acronym
NCAA
NDA
NEB
NRF
OAG
OCU
ODR
Pax
PPL
PRM
PTD
SAC
SAFI
SAS
SKP
SITA
söp
THD
Traficom
TTJA
UAE
ULC
UTP
VKI
VZBV
YLKI
ZM
ZPS
ZSS
Definition
Nigerian Civil Aviation Authority
Non
–
disclosure agreement
National Enforcement Body
Transport Complaints Board and Package Travel Committee (Norway)
Official Airline Guide
Organisation of Consumers and Users
–
Spanish consumer organisation
Online dispute resolution body
Passengers
Polish Airports State Enterprise
Persons with disabilities or reduced mobility
Package Travel Directive
Catania Airport Company
Schedule Airline Failure Insurance
Scandinavian Airlines
Association of Polish Consumers
Information technology company
Conciliation Body for Public Transport (Germany)
Turkish Consumer Rights Association
Finnish Transport and Communications Agency
Estonian Consumer Protection Body
United Arab Emirates
Luxembourg Consumer Association
Public Transport Users’ Association (Italy)
Austrians Consumer Association
Federation of German Consumer Organisations
Consumers Association Indonesia
Green Mazovia
–
Polish association
Slovenian Consumer Association
Slovakian Consumer Association
January 2020 | iv
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0019.png
Study on the current level of protection of air passenger rights in the EU | Final Report
List of countries in scope for the analysis
The geographic scope of the study has been the EU28 Member States, Iceland, Norway and
Switzerland, collectively
described as “EU+3”.
Ordered alphabetically, according to the
original language, first EU28, followed by Iceland, Norway and Switzerland.
Country Code
BE
BG
CZ
DK
DE
EE
IE
EL
ES
FR
HR
IT
CY
LV
LT
LU
HU
MT
NL
AT
PL
PT
RO
SI
SK
FI
SE
UK
IS
NO
CH
Country Name
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
Slovenia
Slovakia
Finland
Sweden
United Kingdom
Iceland
Norway
Switzerland
January 2020 | v
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0020.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Executive summary
Background
The liberalisation of the European air transport market has generated significant benefits for
consumers: a wider choice of air services and intense price competition between air carriers,
which has resulted in significantly lower fares. To limit any potential negative impacts that this
might have on the quality of service delivered to air passengers and consumers, a number of
measures have been taken at European Union (EU)-level to protect them. The most significant
of these, Regulation (EC) 261/2004, introduced rules on compensation and assistance in the
event of denied boarding, cancellations, long delays and involuntary downgrading. A number
of other key legislative texts provide a European framework for the establishment and
protection of passenger rights for air travellers. However, there is consensus among the
industry, regulators and passengers that there are issues with the application and
enforcement of some areas of air passenger rights, particularly those stemming from
Regulation (EC) 261/2004. In March 2013, the Commission proposed a revision of Regulation
261/2004, but the proposal has been on hold since November 2015.
Methodology
Data relevant to the study was collected through an extensive stakeholder consultation, two
participatory workshops, publicly available data sources and a bespoke extraction from
Eurocontrol’s Central Office for Delay Analysis (CODA) database.
To develop the understanding of the issues that have arisen since 2011, a large programme of
stakeholder engagement was defined by the European Commission, that included consumer
and passenger organisations, EU and non-EU air carriers and representative associations,
airports and representative associations, other industry associations (e.g. groundhandlers,
travel agents); national enforcement bodies (NEBs); alternative dispute resolution bodies
(ADRs); claim agencies; and non-EU authorities and consumer organisations. Research related
to the expectations and views of passengers mainly drew from interaction with the consumer
and passenger representative organisations, as well as desk-research including the latest 2019
Eurobarometer survey. A large programme of open consultation with passengers was not
foreseen in the Terms of Reference of the study. Steer received more than 150 responses to
the questionnaires issued as part of the study. In addition, 70 interviews were conducted with
a balanced sample of selected stakeholders all across the EU+3, and two participatory
workshops were organised, dedicated to air passenger rights in non-EU countries and ways
forward in the EU, respectively.
Key to the quantitative analysis were inputs received directly from airlines, airports and claim
agencies, particularly in relation to the level of disruption experienced by passengers and its
classification with respect to extraordinary circumstances, alongside data on the extent to
which eligible passengers claim compensation and the cost this represents. All inputs were
cross-checked as much as possible against those provided by other stakeholders and publicly
available information.
Key findings
Level of disruption
The number of flights disrupted, in terms of cancellations and delays over two hours, has
increased significantly between 2011 and 2018, although the proportion of all flights disrupted
remains relatively low: the number of cancelled flights accounted for 1.7% of the total flights
in 2018, against 1.0% in 2011; the share of delayed flights above 2 hours went from 0.9% to
January 2020 | vi
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0021.png
Study on the current level of protection of air passenger rights in the EU | Final Report
1.4% in the same period. The increased level of disruption corresponds with increasing levels
of ATM delay generated in the single European sky (SES), which also causes further knock-on
and reactionary effects throughout the system. Delay in the SES was 0.9 min per flight in 2017
and 1.7 min per flight in 2018, compared to a target level of 0.5 min per flight set in the
performance scheme.
The number of passengers affected by flight disruptions follows the same trend as flight
disruptions, but due to increasing load factors during the period, the number of passengers
affected has increased at a greater rate. Overall in 2018, 17.6 million passengers were affected
by a cancellation and 16.5 million by a long delay. Compared to the entire travelling
population, the proportion of passengers affected remains relatively small, with the share of
passengers affected by cancellations growing from 0.9% (2011) to 1.6% (2018) and that of
those affected by delays growing from 1.0% (2011) to 1.5% (2018). The proportion of
passengers affected by denied boarding and downgrading was very low: 0.14% of passengers
denied boarding in 2018 and 0.01% of passengers downgraded in the same year.
Passenger claim rates for compensation have increased significantly between 2011 and 2018,
reflecting the increasing awareness and the activity of claim agencies. In 2018, 38% of eligible
passengers claimed compensation, up from 8% in 2011. There is a large disparity between
claim rates from cancellations and delays. In 2018, close to 60% of eligible passengers affected
by delays claimed compensation, as opposed to under 20% affected by cancellations. The
claim rate measure used here does not differentiate between whether an airline provided
compensation after a passenger submitted an eligible claim, or after the intervention of a NEB,
ECC, ADR/ODR/court or claim agency.
Air
passengers’ perspective on their rights
The analysis indicates that passengers’ priorities remain unchanged since 2011 (and since
Regulation 261/2004 was implemented). By order of priority, they are:
1.
2.
3.
Care and assistance to be provided in the event of travel disruption;
Re-routing to be offered so that passengers may arrive at their destination as soon as
possible; and
Reimbursement and/or compensation to be paid, where relevant
Overall, passengers expect a simple system that ensures fair outcomes. Instead, they
experience a complex system with limited transparency. The low intelligibility of Regulation
261/2004 and the related jurisprudence contributes to its complexity, resulting in a lack of
trust between passengers and airlines. The time and the costs involved for passengers seeking
redress vary depending on the outcome at each stage of the process. Elapsed time may range
from a few hours to several months, while costs may range from zero to as much as half the
compensation amount if a claim agency is engaged and opts for court action. At the same
time, the level of know-how required for passengers to pursue a claim is high and may
discourage them from starting the process or continuing with it if disputes arise.
Nevertheless, according to all stakeholders who participated in this study, awareness amongst
passengers of their rights has increased. This has been driven by a number of factors, including
traditional media and social media campaigns, as well as improved compliance by airlines with
an obligation to inform passengers of their rights. Despite this, the complexity of the rules
means that passengers often do not fully understand their precise rights even if they are
aware of them. This sometimes also contributes to passengers having unrealistic expectations
as a result of misunderstanding the protections available, further undermining passengers’
trust in the system.
January 2020 | vii
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0022.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Passengers with disabilities and reduced mobility
All relevant stakeholders agreed that the number of persons with disabilities or reduced
mobility (PRMs) is growing strongly, representing an increasingly larger proportion of total
passengers. PRM representatives and NEBs agreed that the level of service provided by
airports and airlines generally complies with the requirements of Regulation 1107/2006, and
while PRM representatives noted that service quality can vary across airports, NEBs received
very few complaints in relation to PRM issues. Despite this, there remain some areas of
particular concern for PRMs, including:
•
Denied boarding of PRMs at the gate: this usually happens on safety grounds and can be
perceived as arbitrary (especially where denied boarding happens on the return leg of the
journey when no denied boarding took place on the outbound flight) and incontestable
(as it is not possible for PRMs
to contest or disprove “safety reason” justifications at the
gate). Denied boarding in such cases, leaves very little time or opportunity for the issue to
be resolved or appealed before the flight departs;
Damaged mobility equipment, depending on the severity of the disability, can have an
immediate and significant impact on PRMs. Currently compensation is governed by the
Montreal Convention and Regulation 889/2002 and capped to approximately €1,400
(1,131 SDR
1
), sometimes very far from the value of some custom-made mobility
equipment which may be several times this amount.
•
Cost of Regulation 261/2004 for airlines
Costs incurred by airlines through the implementation of Regulation 261/2004 have grown
significantly since 2011. The average direct cost per passenger is estimated
2
to have increased
at a compound annual growth rate (CAGR) of +13.6% from €1.8 in 2011 to €4.4 in 2018, driven
by a combination of increased levels of disruption and increased claim rates for compensation.
The cost of Regulation 261/2004
forms a relatively small part of airlines’ cost base, however,
as the overall cost of this Regulation has increased, this share has also grown and in the case
of LCCs has overtaken the cost of marketing and distribution activities. The average cost of
Regulation 261/2004 per passenger affected by disruption is high, representing over 90% of
airlines’ average fare in 2018. The Regulation was designed for this cost to be high to
discourage airlines from taking commercial actions that would inconvenience passengers (e.g.
overbooking), however, as more operational disruptions are also covered (e.g. technical
defects inherent in the normal exercise of the activity of the air carrier), the cost per passenger
affected by disruption may generate disincentives for airlines to actually operate severely
delayed flights and incur operating costs in addition to the disruption costs.
In addition to the direct costs, administrative costs and legal costs for handling passenger
claims are also incurred by airlines, as well as costs for measures taken to mitigate the risk of
disruption. Administrative and legal costs were found to be up to 0.6% of the overall airline
cost base in 2018, while the cost of mitigation measures (e.g. lease and maintenance costs for
spare aircraft) contributed approximately 0.4% to the overall cost base. The extent to which all
1
Special Drawing Rights are a form of international money, created by the International Monetary
Fund, and defined as a weighted average of various convertible currencies
2
Estimation based on the level of disruption recorded (CODA data) and the claim rates (airline and claim
agency data) and cross-checked against cost data of 8 airlines accounting for 25% of the market.
January 2020 | viii
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0023.png
Study on the current level of protection of air passenger rights in the EU | Final Report
of these costs may be attributed to Regulation 261/2004, as opposed to normal steps taken to
ensure a level of operational resilience is not straightforward to evidence.
A key issue on Regulation 261/2004 costs is that the right to redress defined in Regulation
261/2004 is not guaranteed/effective and as a result there are many instances where airlines
are not able to recover costs incurred in providing assistance and compensation to passengers
for disruption generated by third parties (such as ANSPs, groundhandlers, airports and other
parties). Airports generally do not incur Regulation 261/2004 costs, and in the minimal set of
circumstances where they do, are normally able to indirectly pass these costs through to
airlines.
Impact on passenger fares
The overall impact of the Regulation in terms of fares varies according to airline business
model and the market they operate in. Where possible, airlines try to pass cost increases on to
customers through an increase in air fares, although the impact may not be direct on a route-
by-route basis. Where this is not possible, mainly for competitive reasons, Regulation
261/2004 costs are internalised by airlines with an impact on profitability, which might
possibly result in a longer-term restriction in the number of routes operated or a reduction in
connectivity offered.
Monitoring, enforcement and sanctioning
Monitoring and enforcement of Regulation 261/2004, as well as sanctioning under that
Regulation are governed by national law. Therefore, significant differences exist across all
Member States, both in terms of the way that NEBs are dealing with individual complaints, as
well as the enforcement powers they have. The approach to enforcement and complaint
handling varies between NEBs. Whereas some NEBs are able to accept and enforce individual
complaints, others cannot support passengers through their complaints, but instead perform
enforcement on a system-wide level only and may refer individual passengers to an ADR body.
Different NEB powers specified at national level and the binding/non-binding nature of NEBs
decisions and sanctioning powers are creating different outcomes for passengers across the
EU+3. For airlines, this may contribute to some competitive distortions. This is also the case for
the assessment of extraordinary circumstances by NEBs which creates an uneven application
of APR for passengers and all other stakeholders involved.
In recent years, most NEBs have noted a substantial increase in the number of complaints
received under Regulation 261/2004. The number of complaints has been increasing steadily
since 2011, presenting challenges for resources and timeframes for addressing complaints.
This may result in a delay to complaint handling process for passengers and lack of systematic
enforcement by NEBs. Very few sanctions have been applied across the EU+3, and where
sanctions are applied, it is unclear whether they are effective and driving any systematic
change in airlines’ behaviour. Overall, NEB enforcement is very largely based only on
complaints received as there exists no obligation for airlines to report on compliance and few
other sources of information. Some NEBs do proactively carry out inspections at airports to
monitor aspects of the regulation such as information provision and care and assistance, but
this does not appear to be the case on compensation, which is provided ex-post.
Difficulties with enforcement may be a result of a wording which allows a case-by-case
assessment (e.g. re-routing
under “comparable transport conditions” at the “earliest
opportunity”) which creates different interpretations of what constitutes a
violation of
Regulation 261/2004. NEBs have noted a number of difficulties that emerge in assessing
January 2020 | ix
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0024.png
Study on the current level of protection of air passenger rights in the EU | Final Report
compliance with aspects of the Regulation (e.g. the requirement to ask for volunteers for
denied boarding) which are difficult to record or provide evidence for retrospectively.
General consumer protection framework and other means of redress
Air passenger rights protections are complementary to other wider protections offered by the
general consumer protection framework (for example under the Package Travel Directive
(PTD)). Similarly, air passenger rights enforcement mechanisms can be complemented by
wider public enforcement mechanisms established under the Consumer Protection
Cooperation (CPC) Regulation. In parallel, passengers may seek individual redress by turning to
private enforcement tools or claim agencies.
The interaction between the system of redress dedicated to APR (airlines, NEBs) and the
private enforcement tools available more widely (ADR, courts), coupled with the involvement
of claim agencies, creates a lot of complexity, has poor intelligibility and generates delay and
cost as part of the process.
In general, ADRs are a comparatively efficient and effective way for handling disputed claims
within the existing air passenger rights framework, especially as compared to the courts. ADRs
are less costly and quicker than going to court. They also tend to be more flexible in terms of
process (e.g. it may be completed entirely in writing) and can provide a wider range of
mediated outcomes. However, the coverage of ADRs across the EU+3 is fragmented and
suffers shortcomings such as participation of airlines only being voluntary, lack of sector
expertise at general consumer bodies, restricted legal scope and interpretation of the
legislation (such as not including case law) and the non-binding nature of their decisions.
The emergence of claim agencies in recent years has been a particularly significant
development in the area of air passenger rights. Claim agencies deal with claims enquiries,
process eligible claims and monitor flight disruptions on very large scale with a high degree of
automation that has shifted the balanced in the air passenger rights system, generating a large
number of cases in the courts and increased costs for airlines and also NEBs. At the same time,
passengers may have to pay up to 50% of their compensation to the claim agencies in some
cases, depending on steps taken for the claim to be resolved (i.e. whether this is resolved
between the claim agency and the airline or whether the case is taken to court by the claim
agency). A number of the practices used by claim agencies have been highlighted as
problematic by NEBs, ECCs, passenger representatives and airlines. A particular concern is the
readiness with which claim agencies resort to the courts. However, claim agencies have
supported increased awareness of air passenger rights (since this drives their income), and by
acting to ensure passengers’ rights are fulfilled in situations where passengers might have
encountered difficulties in doing so themselves fill a protection and enforcement gap.
Air passenger rights outside the EU
ICAO has established a set of Core Principles on Consumer protection for before, during and
after travel. The EU legislative framework is generally consistent with these Core Principles
through a combination of requirements specified in Regulation 1008/2008, Regulation
2111/2005 and Regulation 261/2004. The gaps between the ICAO Core Principles and the EU
framework (e.g. on keeping passengers informed throughout their journey) are addressed by
the 2013 Proposal for the revision of Regulation 261/2004.
In non-EU countries, the approach to protections available to air passengers ranges from
regulatory regimes (as in the EU and Malaysia) to voluntary ones (as in Australia and the UAE).
Typically, regulatory and voluntary regimes both recognise an obligation for re-
January 2020 | x
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0025.png
Study on the current level of protection of air passenger rights in the EU | Final Report
routing/reimbursement, but none of the voluntary regimes reviewed offer compensation to
passengers affected by disruption. Furthermore, regulatory regimes in Brazil, China, Indonesia
and Malaysia do not offer compensation in addition to reimbursement. The approach towards
provision of care under extraordinary circumstances is also weaker under voluntary regimes
than under regulatory ones. A number of good practices were identified through the review of
air passenger rights outside the EU, such as the use of technology.
Airline insolvencies
Between 2011 and October 2019, 5.6 million passengers (or 0.04% of total EU passengers)
were impacted by airline insolvencies. In 2017 only, which included the relatively large
bankruptcies of Air Berlin and Monarch, this equated to 0.09% of total EU passengers being
affected (i.e. unable to travel) or stranded due to airline failure. In 2019 this has grown to
0.14% due to the bankruptcies of Thomas Cook, Germania, Adria, Aigle Azur and WOW air.
Over the period considered, the proportion of passengers affected or stranded was 0.02% in
2011, rising to 0.10% in 2012 and as low as 0.01% in 2015 and 2016.
On average, over the period 2011-June 2019, we estimate that passengers directly affected by
insolvencies incurred €431 in costs, 83% of which (i.e. €357) were not recoverable under one
of the protection mechanisms.
The level of protection obtained by a passenger depends mainly on
where
and
how
their
itinerary was purchased. The most significant difference is between standalone (flight-only)
tickets and those purchased as part of a package or linked travel arrangement. The current EU
framework does not provide for any direct insolvency protection requirements for flight-only
ticket holders and these passengers must instead ensure their own protection. Insolvency
protections for flight-only (i.e. single travel service) ticket holders have not materially changed
since 2011. However, some passengers who previously would have been considered flight-
only ticket holders may, under the new Package Travel Directive, be covered by the provisions
for linked travel arrangements. This is a change of trend since 2011, with all types of airlines
(charter, low-cost, scheduled short-haul only, scheduled mixed short and long, long-haul)
being concerned.
Across Europe, there only exists partial solutions for the protection of passengers in the case
of airline insolvency. These protections overlap and none are universal, such that on one flight
several passengers may be covered multiple times, for example if they had purchased their
ticket with a credit card and were also covered by a travel insurance policy, whilst others may
not have any protection at all, especially if they booked flight-only tickets directly from the
carrier.
•
In general terms, purchases of other travel services such as accommodation made at the
same time as the purchase of a flight, will normally result in the creation of a package or
linked travel arrangement and be subject to the protections set out in the Package Travel
Directive;
Scheduled Airline Failure Insurance (SAFI) has allowed passengers to insure themselves
against some of the costs resulting from the insolvency of an airline on which they are
booked. SAFI covers the costs of repatriation if the passenger is stranded, or
reimbursement for the cost of the original flight tickets in the case that the passenger
cannot recover it. However, SAFI is only available in a small number of Member States and
excludes any carriers publicly known to be in financial difficulty. It is also not very well-
known by passengers;
•
January 2020 | xi
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0026.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
•
•
•
Some Member States have put in place Travel Funds. In the event of insolvency, money
can be extracted from the fund to assist with the repatriations of stranded passengers and
the reorganisation of affected bookings. However, compensation will be paid out only if
there is sufficient money remaining in the fund which may be an issue for large-scale
events.
Payments for tickets purchased via IATA travel agents are held by a central payment
mechanism before being passed on to the airline, in settlements at regular intervals
(usually monthly). If the airline becomes insolvent, passengers whose payments have not
yet been passed on to the airline should be able to recover what they paid. Across Europe,
this type of protection does not appear particularly useful;
Other protections include those available through the payment system used (such as
credit cards) but these are only available in a limited number of Member States to credit
card holders only;
Passengers may benefit from travel insurance policies which include supplier failure cover,
although not all such policies do;
Rescue fares may be offered by competing airlines (at their discretion) to stranded
customers, allowing them to make their journey home at a reduced priced, but there is
little public awareness of these.
Ways forward
In general, NEBs and industry stakeholders welcome the review of Regulation 261/2004. The
EC’s 2013 proposal for the revision of Regulation 261/2004 sought to balance stronger
enforcement policy with economic incentives for carriers. Different aspects of this are
supported by different stakeholders, depending on their perspective, but overall stakeholders
that were consulted in the context of this study are keen to see the revision move forward
through the legislative process.
January 2020 | xii
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0027.png
Study on the current level of protection of air passenger rights in the EU | Final Report
1 Introduction
This report for DG MOVE has been prepared by Steer with support from Clyde & Co.
Background
The liberalisation of the European air transport market has generated significant benefits for
consumers: a wider choice of air services and intense price competition between air carriers
which has resulted in significantly lower fares. To limit any potential negative impacts that this
might have on the quality of service delivered to air passengers and consumers, a number of
measures have been taken at European Union (EU)-level to protect them.
The EU has established, in 2011, a set of passenger rights rules in all transport modes
3
. The
rules on passenger rights provide minimum protection for passengers and are based on three
cornerstones: non-discrimination; accurate, timely and accessible information, immediate and
proportionate assistance.
In air transport, these rights are protected by different legislative texts, among which:
•
•
•
•
•
•
•
Regulation (EC) 261/2004 establishing common rules on compensation and assistance to
passengers in the event of denied boarding and of cancellation or long delay of flights;
Regulation (EC) 1107/2006 concerning the right of disabled persons with reduced mobility
when travelling by air;
Regulation (EC) 889/2002 on air carrier liability in the event of accidents; and
Regulation (EC) 1008/2008 on common rules for the operation of air services in the
Community;
Directive 2015/2032, the “Package Travel Directive”;
Regulation (EC) 2017/2394 on Consumer Protection Cooperation (CPC);
Regulation (EC) 2005/2111 on the establishment of a Community list of air carriers subject
to an operating ban.
The most significant of these, Regulation (EC) 261/2004, introduced rules on compensation
and assistance in the event of denied boarding, cancellations, long delays and involuntary
downgrading. The Regulation requires air carriers to:
•
•
•
•
Provide passengers with assistance, such as hotel accommodation, refreshments and
telephone calls;
Offer re-routing and refunds;
Under
certain circumstances, pay compensation of up to €600 per passenger; and
Proactively inform passengers about their rights under the Regulation.
3
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2011:0898:FIN
January 2020 | 1
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0028.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The Regulation also requires Member States in the EU+3 (EU28, Norway, Iceland and
Switzerland) to establish national enforcement bodies (NEBs) and introduce dissuasive
sanctions into national law.
In addition to these texts, air passenger rights protections interface with horizontal consumer
protection rules or schemes such as Alternative Dispute Resolution bodies (ADRs) and/or
Online Dispute Resolution bodies (ODRs), and European Consumer Centres (ECCs).
Need for the study
There is consensus among passenger representatives, the industry and regulators that there
are issues with the application and enforcement of some of the 10 rights, particularly those
stemming from Regulation 261/2004 such as:
•
A lack of clarity in certain air passenger rights provisions, including those enshrined in
Regulation 261/2004, for example the definition of “extraordinary circumstances” in
Article 5(3) and re-routing
at the “earliest opportunity” in Article 8(1b).
–
Areas with ambiguous meaning which can lead to divergent interpretations, which
give airlines an opportunity to try and interpret it in ways which minimise their
obligations;
–
No clear guidance on a number of issues/situations which frequently arise but are not
covered by the existing Regulation, particularly with regard to baggage and types of
travel disruption (such as mass-disruptions) which are not explicitly addressed within
the Regulation;
Uneven levels of effective enforcement across Member States; and
Inadequate complaint-handling processes, coupled with complex and insufficient means
of individual redress.
•
•
As a result, passengers face difficulties in enforcing their rights, while complaint handling
procedures are long and complex. In addition, procedures vary considerably between Member
States, potentially distorting competition between airlines while, in the view of some
stakeholders, the cost of complying with the obligations imposed by Regulation 261/2004 is
unduly onerous (acting as a strong disincentive to comply).
The Commission drafted a proposal in 2013
4
, which contained the measures presented below.
Following a dispute between the United Kingdom and Spain over Gibraltar's airport, the
proposal has been "on hold" since November 2015.
4
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0062:FIN:EN:PDF
January 2020 | 2
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0029.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 1.1: Overview of 2013 proposal for the revision of Regulation 261/2004
Clarifying grey areas
1. Information on
delayed or cancelled
flights
Obligation to keep
passengers informed
about the situation, as
well as their rights.
New rights
6. Rescheduling
Equality of treatment as
with delays and
cancellations for flights
rescheduled less than 2
weeks before departure.
Enforcement,
complaint-handling
and sanctioning
10. Monitoring and
sanctions
Improved NEB
coordination. More
preventive monitoring
role.
Provision of technical
assistance to complaint-
handling bodies.
Disproportionate
financial costs
13. Limit to assistance
A limit of three nights in
the case of
extraordinary
circumstances.
Limit not applicable to
PRMs and some other
passengers with specific
needs.
(Balanced by 4. which
provides for faster re-
routing)
14. Contingency planning
Obligation for airports, air
carriers and other airport
users to prepare
contingency plans to care
for passengers stranded in
mass disruptions.
15. Regional operations
No obligation to provide
accommodation to
passengers of short flights
(<250km) and with small
aircraft (<80 seats).
Derogation not applicable
to connecting itineraries,
PRMs and some other
passengers with specific
needs.
16. Sharing the economic
burden
National law may not
restrict air carriers’ right
to seek compensation
from responsible third
parties.
2. Extraordinary
circumstances
Clarification and
provision of examples
(list provided in Annex of
proposal).
7. Misspelt names
Correction of spelling
mistakes up to 48 hours
before departure.
11. Complaint handling
and enforcing individual
rights
Clear complaint-handling
procedures and deadlines
provided by airlines.
Disputes handled by out-
of-court handling bodies.
12. Insolvency
Coordinated approach by
national authorities.
Formal arrangements by
associations for provision
of rescue fares.
Wider and systematic
availability of insurance
and other relevant
protection products.
3. Long delays and
tarmac delays
Care and assistance after
2 hrs for all.
New compensation
thresholds starting at 5
hrs.
Explicit tarmac delay
obligations.
8. No show policy
Passengers may not be
denied boarding on the
return flight of their
ticket on the basis of not
having taken the
outbound part of the
return ticket.
4. Re-routing
12-hour threshold for re-
routing on other air
carriers or modes.
9. Mishandled baggage
- Mobility equipment
value declaration at
check-in.
- Musical instruments.
- Ability to submit
complaints
to carriers at
the airport.
- Inclusion of mishandled
baggage within
NEBs
remit.
- Transparency
of
baggage rues.
5. Connecting flights
Journey view with new (5
hours, etc.) time
thresholds.
Source: European Commission
January 2020 | 3
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0030.png
Study on the current level of protection of air passenger rights in the EU | Final Report
While these issues have not been satisfactorily addressed, the air travel market has
developed. Low-cost carriers, which originally focused on specific market segments, now
compete directly with network airlines, while direct purchase of tickets has become the norm
and traditional travel agencies continue to be replaced by online ticketing portals. Against this
background, awareness amongst air passengers of their rights has improved, although they
continue to not consider that they are as well informed as they should be, while the business
of claim agencies is also growing rapidly.
This fact-finding study updates the market analysis, data and information, which underpinned
the Commission’s 2013 proposal for a revision of Regulation 261/2004. It also considers the
implementation of Regulation 261/2004 alongside other air passenger rights legislation,
particularly Regulation 1107/2006 on PRM, Regulation 1008/2008 on common rules for the
operation of air services, the Montreal Convention, and the protection offered by the
horizontal consumer protection framework, in light of recent market developments, including
the insolvency of a number of airlines. Additionally, it provides an overview of the
development of air passenger rights protections in non-EU countries to identify common
issues and/or lessons that may be learnt from their implementation.
Methodology
The methodology for responding to the Terms of Reference includes the following elements:
•
Stakeholder consultation using a number of approaches to engage with interested
stakeholders and collect information about their specific situation, as well as their views
on the implementation of APR; and
Desktop research to identify and collect up-to-date information, followed by analysis of
this material to understand the issues.
Country fiches developed for all EU+3 countries, gathering detailed information and data
on the implementation of air passenger rights protections and issues emerging from this.
Country fiches were also developed for 19 non-EU countries, providing an overview of
different approaches to air passenger rights protections available outside the EU and
identifying good practices were relevant.
Case studies describing the situation from an air passenger rights perspective developed
for four airline insolvencies (Air Berlin, Monarch, Cyprus Airways and Primera Air).
Legal analysis, where relevant, supported by Clyde & Co.
Two participatory workshops with selected stakeholders, addressing international lessons
and possible ways forward, respectively.
•
•
•
•
•
•
The figure below presents at high-level the approach followed.
January 2020 | 4
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0031.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 1.1: Overview of methodology
Stakeholder consultation
Desk research
Legal analysis
Task 1
Analysis of updated data
Task 3
Analysis of APR
from an
operational
stakeholder's
perspective
Task 4
Analysis of the
monitoring and
enforcement
processes under
Regulation (EC)
No 261/2004
Task 5
Contribution of
general consumer
protection
framework, other
means of redress
and claim
agencies
Task 7
Measuring the
impact of airlines'
insolvency
Task 6
Analysis of the
development of
APR outside the
EU
Task 2
Analysis of expectations of air passengers regarding their rights
Task 8
Conclusions on the recent evolution of APR and the current level of protection
Source: Steer
Stakeholder consultation
To develop the understanding of the issues that have arisen since 2011, Steer defined a
programme of stakeholder engagement, in agreement with the Commission, with the
following objectives:
•
•
•
Obtain quantitative and qualitative information in order to address the requirements of
the Terms of Reference;
Collect data from stakeholders to ensure cross-referencing of information and address
information gaps (see next section);
Discuss issues arising with the application of the current legislation and any possible
shortcomings, redundancies, overlaps, inefficiencies, inconsistencies or unintended
consequences; and
Compare the European situation with non-EU countries and identify best practice (if any)
or relevant ideas to support the implementation of APR in the EU.
•
The approach followed for the stakeholder consultation is detailed in Appendix A and
summarised below.
January 2020 | 5
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0032.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 1.2: Stakeholder engagement methods, approach and target stakeholders
Method
Pilot interviews
Targeted
interviews
Approach
Telephone meetings
Face to face and telephone
interviews with at least 70
participants
Target stakeholders and purpose
5 key stakeholders to help shape the
methodology of the work programme
Interviews with 70 identified key stakeholders
to obtain detailed information for the study.
These interviews built on the replies provided
by 70 stakeholders selected among the group
of 311 stakeholders referred to below (see
Appendix A).
Adapted to each category of stakeholder, the
purpose of these surveys was to collect
consistent data and opinions using a
standardised approach.
Targeted
questionnaires to
industry
Issuing of 297
questionnaires for each key
stakeholder group.
(Some stakeholders
declined to participate, so
they did not receive a
questionnaire)
Four case studies, drawing
on stakeholder engagement
and desk research
Three workshops
Case studies
Establishment of sources of evidence for the
analysis of the impact of airline insolvencies
(see Chapter 8 and Appendix G).
Commission and various stakeholders as
relevant for each workshop (see Appendix B).
Workshops
Source: Steer
The stakeholder consultation targeted the following nine stakeholder groups:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Consumer and passenger organisations;
EU air carriers and representative associations;
Non-EU air carriers and representative associations;
Airports and representative associations;
National enforcement bodies;
Alternative dispute resolution bodies;
Claim agencies;
Non-EU authorities and consumer organisations; and
Other industry associations (e.g. groundhandlers, travel agents).
Figure 1.2 provides an overview of the stakeholder engagement status by stakeholder group.
NEBs that are also ADRs have been counted twice.
January 2020 | 6
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0033.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 1.2 Overview of stakeholder engagement status by stakeholder group
EU+3 Air Carriers and
Representative Associations
3
Non-EU Air Carriers and
Representative Associations
Consumer and Passenger
Organisations
3
6
12
7
33
37
Consumer and Passenger Organisations
Consumer and Passenger Organisations
9
24
3
Airports and Representative
Associations
3
22
3
EU+3 National Enforcement
Bodies
1
-
3
Alternative Dispute Resolution
Bodies
3
22
35
22
13
34
37
16
37
Relevant Organisations in
Non-EU Countries
3
Claim Agencies
a
-
Other Relevant Stakeholders and
Industry Associations
10
11
5
11
5
25
teer received questionnaire response
received questionnaire response
Steer
Awaiting questionnaire response
No engagement
Declined to
Awaiting questionnaire response
participate
No engagement
Declined to participate
Source: Steer - *APRA and its 4 members submitted one coordinated response
Workshops
Two workshops took place in Spring 2019, with a third closing event planned after the
publication of the report in late 2019.
•
“Air Passenger Rights: International Lessons”:
the objectives of the first workshop on
International Lessons were to review APR practices around the world (especially voluntary
versus regulatory approaches); identify potential lessons for EU APR from non-EU
countries; and offer non-EU country authorities the chance to engage with the EC, EU
NEBs and other countries and stakeholders. It took place on 14-15 May 2019.
“Air Passenger Rights: Ways forward”: the objective of the second, forward-looking
workshop was to explore potential areas for solutions between authorities, operational
stakeholders and passengers and identify possible areas for convergence between various
interests and win-win ways forward with respect to the protection of air passenger rights,
•
January 2020 | 7
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0034.png
Study on the current level of protection of air passenger rights in the EU | Final Report
with a focus on improving the rules in place and their enforcement. It took place on 12
June 2019.
Steer worked closely with the EC to define the objectives and format of these workshops and
to identify suitable potential speakers and participants. Both workshops were designed to be
participatory around a discussion format, involving a limited number of attendees with a
balance of representation across stakeholder groups. A summary of the discussions held at the
workshops is available in Appendix B.
Desk-based research and analysis
The approach used for the analysis required by the Terms of Reference is described in detail in
each of the relevant chapters. Data has been collected from a wide range sources, as displayed
in the table below which also shows how the data was used and in which chapters of this
report the results are provided.
Table 1.3: Data collected
Item
Cancelled
flights
Details covered
in
Chapter 2:
Cancelled fights
Chapter 8:
Disruption due
to airline
insolvency
Required data
Passengers and
flights
Cancellations
disaggregated by:
airport, airline,
reason for
cancellation
OD pair, flight
distance and
cancellation horizon
time.
Identified sources
Eurocontrol CODA
Flightstats
Slot coordinators
UK CAA
FR AQST
Eurostat
Stakeholder
consultation (of
airports and
airlines, and their
associations)
Data collected (and
source)
Passengers (Eurostat),
seats and flights
(OAG)
High-level
cancellation data
(Eurocontrol CODA
digest reports)
Cancellation data by
flight distance (FR
AQST, UK CAA,)
Number of cancelled
flights (data provided
by airport and airline
stakeholders)
Instances of voluntary
and involuntary
denied boarding, and
downgrading (US DOT
&
data received from
stakeholders)
Passengers (Eurostat),
seats and flights
(OAG)
Delayed flights
disaggregated by:
airport, airline, OD
pair, flight distance,
length of delay and
reason for delay
(Bespoke CODA data
request)
Number of delayed
flights and length of
Denied
boarding and
downgrading
Chapter 2:
Cases of denied
boarding and
downgrading
Instances of denied
boarding
disaggregated
across flight
distances
UK CAA
US DOT
Stakeholder
consultation (of
airlines)
Delayed
flights
Chapter 2
Number of
delayed flights
Chapter 2:
Reasons for
delays
Passengers and
flights
delayed
disaggregated by:
airport, airline, OD
pair, flight distance,
length of delay and
reason for delay.
Eurocontrol CODA
Flightstats
UK CAA
Eurostat
Stakeholder
consultation (of
airports and
airlines, and their
associations)
January 2020 | 8
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0035.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Item
Details covered
in
Required data
Identified sources
Data collected (and
source)
delays (data provided
by stakeholders)
Mishandled
baggage
Chapter 2:
Incidents of
delayed,
damaged and
lost baggage
Instances of lost,
delayed and
damaged baggage.
SITA Baggage
Report
US DOT
Stakeholder
consultation (of
airlines)
Instances of lost,
delayed and damaged
baggage (data
provided by
stakeholders) at a
Europe-wide level
(SITA Baggage
Reports)
Instances of
disruption and total
passenger
compensation
payments (data
received from
stakeholders)
Passenger
compensation
entitlement
Chapter 2:
Passengers
entitled to delay
and cancellation
compensation
Total passengers on
cancelled (including
those denied
boarding) and
delayed flights
Downgraded
passengers
Instances of
mishandled baggage
Number of
passengers claiming
compensation in
relation to delays,
cancellations,
downgrading and
mishandled baggage
Average time taken
for airlines to
respond to claims
and NEBs to
respond to
complaints
OAG
Stakeholder
consultation (of
airlines)
Claim rate
Chapter 2:
Actual claim
rate
Chapter 2:
Baggage-related
complaints
Chapter 4:
Length of
claiming
procedures for
airlines
Chapter 5:
Length of
redress
procedures for
NEBs
Chapter 4: Costs
for air carriers
of complying
Airline annual
reports and/or
financial
statements, ECA
report, consumer
associations
Airline annual
reports
Stakeholder
consultation (of
airports, airlines,
NEBs and
passenger groups)
Claim rate (data
received from
stakeholders)
Length of
procedures
Limited data found or
received from airlines
on length of claiming
and redress
procedures
Costs for
carriers
Total costs for
airlines in relation to
delays,
cancellations,
downgrading and
mishandled baggage
Quantification of
regulatory
compliance cost on
fares
Airline annual
reports and/or
financial
statements
Stakeholder
consultation (of
airlines)
Stakeholder
consultation (of
airlines)
Data from airline and
NEB stakeholders on
compliance costs
Passenger
fares
Chapter 4: Fare
developments
No quantitative data
found or received
from stakeholders on
the relationship
between passenger
fares and compliance
costs
January 2020 | 9
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0036.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Item
PRM
compliance
Details covered
in
Chapter3:
Airport and
airline PRM
compliance
Required data
Level of assistance
and information
provided to PRMs
Instances of denied
boarding (for PRM
reasons)
Identified sources
Stakeholder
consultation (of
airports, airlines
and passenger
groups)
Data collected (and
source)
Number of PRM
passengers served:
airport and airline
stakeholders.
Number of PRM-
related complaints:
NEBs and airports
stakeholders
Organisation of this report
This report is organised as follows:
•
•
•
•
•
•
•
•
Chapter 2– Quantitative update on the air passenger rights situation;
Chapter 3
–
Air passengers’ perspective on their rights;
Chapter 4
– Airlines’ and airports’ perspective on air passenger rights;
Chapter 5
–
Monitoring and enforcement processes under Regulation (EC) No 261/2004;
Chapter 6
–
Contribution of the general consumer protection framework, other means of
redress and claims agencies;
Chapter 7
–
Development of air passenger rights outside the EU;
Chapter 8
–
Impact of airline insolvencies; and
Chapter 9
–
Conclusions
This report also contains the following appendices:
•
•
•
•
•
•
•
•
Appendix A: Details of the stakeholder consultation;
Appendix B: Workshop summaries;
Appendix C: Cost of APR implementation (detailed assumptions and results);
Appendix D: Right to redress overview;
Appendix E: EU+3 NEB fiches, summarising the enforcement and monitoring situation in
each State;
Appendix F: Non-EU air passenger rights country fiches, summarising the APR frameworks
in non-EU countries;
Appendix G: Airline insolvency case studies; and
Appendix H: List of insolvent airlines.
January 2020 | 10
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0037.png
Study on the current level of protection of air passenger rights in the EU | Final Report
2
Overall quantitative update on
the APR situation
Introduction
The focus of this chapter is to provide an update of the level of disruption to flights and
passengers, and the level of claims and complaints. Specifically, it covers:
•
•
•
•
•
•
•
•
•
Number of cancelled flights;
Cases of denied boarding;
Number of intra-EU delayed flights;
Number of extra-EU delayed flights;
Reasons for flight delays;
The number of passengers affected by flight delays and cancellations;
The proportion of passengers that claim compensation;
Cases of mishandled baggage; and
The number of luggage-related complaints.
Through the stakeholder consultation process, some airline stakeholders provided
quantitative data as part of their response. Where data was still missing, the analysis drew
upon publicly available information, as well as Steer’s previous
study on Regulation 261/2004
5
,
which contained relevant analysis.
Industry-level
data on flight delays was provided by Eurocontrol’s Central Office for Delay
Analysis (CODA). The CODA database is the main instrument at the disposal of the aviation
community for measuring, reporting and analysing delays in Europe. From 2011 onwards, the
mandatory data collection as per Annex IV of IR 691 (RP1) from 40 airlines and 78 airports to
the Commission was set up. The data collection from airlines and airports under the SES
Performance Scheme is managed by CODA. There are currently more than 55 airports and 120
airlines providing data on a voluntary basis to CODA. The causes of delay are recorded using
the standard IATA delay codes.
As well as delay information, CODA also collects cancellation data. The scope of this
cancellation data is different to the scope of Regulation 261/2004, as the data applies to short-
term ‘operational cancellations’ at 30 European coordinated airports, where an operational
cancellation is defined as a flight that received an airport slot and was confirmed by the carrier
the day before the operation (by submitting a flight plan to the Network Manager), but which
never took place (as opposed to a flight cancelled up to two weeks before its scheduled
departure). The annual CODA digest reports
6
have contained high-level cancellation data since
2014.
5
6
“Exploratory study on the application and possible revision of Regulation 261/2004” (July
2012)
https://www.eurocontrol.int/sites/default/files/publication/files/coda-digest-annual-2018.pdf
January 2020 | 11
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0038.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The assumptions described in this chapter therefore represent our best estimates based on
the data Steer received or collected. In general,
where “delay” is used in this report, it means
long delay as mentioned in Regulation 261/2004.
The remainder of this chapter is structured as follows:
•
•
•
Firstly, it provides an overview of the level of disruption to flights, in terms of
cancellations and delays over the years in scope (2011-2018);
Secondly, it shows an overview of the level of disruption to passengers, arising from both
flight disruption and instances of denied boarding and downgrading;
Thirdly, it describes the number of passengers entitled to compensation that actually
claim it and the proportion of airlines that comply with their obligations to passengers
under the Regulation; and
Lastly, it provides an overview of instances of mishandled baggage and baggage-related
complaints.
•
Number of flights
The total number of flights arriving at and departing from the EU+3 from 2011 to 2018 has
been taken from OAG and is shown in Table 2.1 below. Extra-EU+3 arriving flights operated by
non-EU+3 carriers are not within the scope of Regulation 261/2004; the total number of flights
under the scope of the Regulation is shown in Table 2.1.
Table 2.1: EU+3 flights (2011-2018)
item
All flights (million)
In-scope flights (million)
2011
7.5
7.1
2012
7.3
6.9
2013
7.1
6.7
2014
7.2
6.8
2015
7.4
6.9
2016
7.8
7.3
2017
8.1
7.6
2018
8.4
7.9
Source: Steer analysis of OAG data
Over the period shown, the number of flights within the scope of Regulation 261/2004 grew
with a CAGR of 1.5%. Only flights within the scope of Regulation 261/2004 have been included
in the analysis of delays, cancellations, denied boarding and downgrading. As no flights are
excluded from the scope of the Montreal Convention, all flights have been included within the
analysis of mishandled baggage.
Cancellations
Airlines can cancel flights for a variety of different reasons and these reasons can broadly be
grouped into:
•
•
Cancellations that are within the control of the airline (i.e. airline-attributable
cancellations), such as crew shortages or a technical fault with equipment;
Commercial cancellations, where an airline decides to cancel a flight as it is not
commercially viable to operate it due to, for example, a low number of bookings (these
are also airline-attributable cancellations); and
Cancellations due to extraordinary circumstances
that are not within the airline’s control,
such as adverse weather conditions or ATC strikes.
•
The key distinction for the purposes of Regulation 261/2004 is between airline-attributable
and non-airline-attributable cancellations, as this has implications
for passengers’
compensation entitlements.
January 2020 | 12
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0039.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Approach
To estimate the number of cancelled flights, we have used data provided by a range of airline
stakeholders, including network, low cost, regional and charter carriers. This data covers all
cancellations under the scope of Regulation 261/2004, including both short-term
‘operational
cancellations’ (which is the definition of cancellations often used by airports and ANSPs), as
well as longer-term cancellations that are also under the scope of the Regulation, including
those up to two weeks before the scheduled departure time (for which passengers are
entitled to compensation) and those over two weeks before the scheduled departure time (for
which passengers are not entitled to compensation, but have other entitlements under the
Regulation). For airlines that have provided data, for each airline, we have weighted the
proportion of cancelled flights by the number of flights, to generate a weighted average
proportion of cancelled flights across all airlines.
As a cross-check, and accounting for this difference in scope, the airline stakeholder flight data
and CODA information on flights appear consistent at a high level, which supports the use of
these inputs in the analysis.
To calculate the proportion of flights that are cancelled at different distance bands, we have
sought more detailed information on the distribution of flight cancellations across the
different bands at national level. Specifically, we have looked at the largest EU aviation
markets and found that relevant data is published by the UK CAA and French AQST. The AQST
data is not as detailed as that published by the UK CAA, which includes disaggregated data on
UK operational cancellations in 2018. As a result, we have applied the proportion of UK
cancellations at each distance band to the proportion of total flights cancelled at an EU level,
to estimate the proportion of EU flights cancelled at each distance band. This does not affect
the occurrence of cancellations at an EU- level, only the distribution of cancellations across
distance bands. The resulting proportion of flights cancelled at different distance bands is
consistent with the AQST information.
Cancelled flights
The number of EU+3 flights within scope of Regulation (EC) 261/2004 and those affected by
cancellations are shown in Table 2.2 and Figure 2.1. The total number of flights cancelled has
grown with a CAGR of +10.1%, between 2011 and 2018, compared to a CAGR of +1.5% for the
number of (in-scope) flights over the same period.
Table 2.2: Number of cancelled flights
Metric
Flights
Type
All flights (‘000s)
All cancellations (‘000s)
% of flights cancelled
2011
7,070
67.2
0.9%
2012
6,866
74.0
1.1%
2013
6,686
90.0
1.3%
2014
6,757
54.3
0.8%
2015
6,908
60.6
0.9%
2016
7,280
80.4
1.1%
2017
7,552
100.5
1.3%
2018
7,851
131.7
1.7%
Source: Steer analysis of airline stakeholder and UK CAA data
Based on the data provided by airline stakeholders, the total number of cancelled flights
increased between 2011 and 2013, decreased sharply in 2014, and has increased steadily
between 2014 and 2018. The 2013 peak in cancellations is likely to be related to the extended
period of adverse weather in the winter of that year.
January 2020 | 13
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0040.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Reasons for flight cancellations
As has been discussed above, airlines cancel flights for a number of different reasons and, for
the purposes of Regulation 261/2004, whether or not the cancellations are airline-attributable
is important. For operational purposes, flight cancellations are attributed a reason code (from
a list of 20 IATA codes); however, all of these codes cannot be easily categorised into airline-
attributable and non-airline-attributable for the purposes of Regulation 261/2004.
Some flight cancellations can be for reasons that are within the control of the airline
–
for
example, crew shortages or commercial decisions to not operate a flight
–
while other flight
cancellations are for reasons that are outside of the control of the airline
–
for example,
adverse weather. However, there are also some cancellations that for reasons where it is not
immediately clear whether they are attributable to the airline and therefore can require a
significant amount of investigation to determine which party the cancellation may be
attributed to.
The steady increase in cancellations since 2014 can be to some extent attributed to the
increasing amount of ATC-generated disruption, which was then particularly high in 2018; in
addition, industrial action by airline staff will have contributed to the increased number of
cancellations in 2017 and 2018. Based on data provided by five airlines on the reasons for
cancellations and whether or not passengers on these flights were eligible for compensation,
we have estimated that the proportion of cancellations that are airline-attributable range
approximately from 60% to75% (of cancellations), between 2011 and 2018.
Across distance bands, we have assumed airline-attributable cancellations follow the same
distribution as airline-attributable delays, in order to generate an estimate of the total number
flight cancellations that are airline-attributable within each band, and therefore entitled to
compensation under Regulation 261/2004. By assuming the same distribution as airline-
attributable delays at each distance band, we are able to capture variation in airline-
attributable disruption (across time and distances), which would not be captured by only using
the global cancellation figures provided by airlines.
We have applied this to the total number of flights flying within each distance band, to
estimate the total number flight cancellations that are airline-attributable, and therefore
entitled to compensation under Regulation 261/2004. Steer assumptions imply that between
60% and 75% of flight cancellations are airline-attributable
–
this is consistent with data
provided by airline stakeholders, as noted above.
Table 2.3: Number of cancelled flights attributable to airlines
Metric
Type
All cancellations (‘000s)
Airline-attributable
cancellations (‘000s)
% of cancellations that
are airline attributable
2011
67.2
39.8
59.3%
2012
74.0
55.7
75.2%
2013
90.0
65.6
72.9%
2014
54.3
36.6
67.5%
2015
60.6
44.0
72.5%
2016
80.4
53.7
66.8%
2017
100.5
61.5
61.2%
2018
131.7
88.1
66.9%
Flights
Source: Steer analysis of airline stakeholder and UK CAA data
The figure below shows the number of cancelled flights, shown as bars on the left vertical axis,
and an index of flights in scope of the Regulation (shown in Table 2.1) where 2011 is indexed
as 100, shown as the dotted line on the right vertical axis.
January 2020 | 14
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0041.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 2.1: Number of cancelled flights (airline and non-airline attributable cancellations)
Source: Steer analysis of airline stakeholder and UK CAA data
For a significant proportion of cases, flights are cancelled for reasons that are airline-
attributable under Regulation 261/2004, but may not be anticipated by the airline (i.e. crew
shortages, technical issues, wildcat strikes). Based on the cancellation reasons provided by
airlines, over the period shown, between 10% and 25% of cancellations are due to crew
shortages, 30% to 50% are due to technical issues. Fewer than 1% of cancellations were stated
to be for commercial reasons
7
, although this remains difficult to check.
Although the low proportion of commercial cancellations could suggest the Regulation has
been effective in reducing airline-attributable cancellations, the high proportion of unplanned
airline-attributable cancellations (i.e. crew shortages and technical faults) suggests the
Regulation has not been sufficiently effective in incentivising airlines to completely mitigate
the risk of these types of cancellations occurring.
Delays
As with cancellations, flights may be delayed for a number of different reasons, some of which
are airline-attributable. The vast majority of flight delays are short delays of under two hours,
however, for the purposes of our analysis, we have only considered delays of two hours or
more, as the protections specified by Regulation 261/2004 do not apply to passengers on
flights delayed less than two hours. As noted in the introduction to this section, where “delay”
is used in this report, it is used to mean long delay as mentioned in Regulation 261/2004.
We have also separately considered
arrival delay
and
departure delay,
as passengers’
compensation rights are in relation to arrival delay, whereas care and reimbursement/re-
routing rights are in relation to departure delay. The number of minutes by which a given flight
7
IATA cancellation code COMM ‘Commercial reasons demand or lack of demand’
January 2020 | 15
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0042.png
Study on the current level of protection of air passenger rights in the EU | Final Report
is delayed on departure and arrival can differ if, for example, the flight is further delayed en-
route or, conversely, if the flight time is faster than scheduled.
Approach
The proportion of delayed flights has been provided by Eurocontrol’s Central Office for Delay
Analysis (CODA) for all EU+3 flights on a monthly basis from January 2011 to December 2018.
Delay statistics have been provided only for delays of longer than two hours and at the level of
disaggregation shown in Table 2.4.
Table 2.4: Flight delay data disaggregation
Category
Delay type
Arrival
delay
Departure
delay
Carrier
EU+3
carrier
Non-EU+3
carrier
Flight type
Intra-EU
Extra-EU
Aircraft
type
8
Light (L)
Medium
(M)
Heavy (H)
Super (J)
Distance
< 1,500km
1,500-
3,500km
>3,500km
Length of
delay
> 2 hours
> 3 hours
> 4 hours
> 5 hours
Disaggregation
Source: Steer analysis of CODA data
The number of flights delayed (by sub-category) has been calculated by applying the number
of in-scope flights (sourced from OAG, totals shown in Table 2.1) to the CODA delay
proportions.
For extra-EU+3 delays, we have assumed that there is no difference between departure delay
and arrival delay. On intra-EU flights we are able to distinguish between the slightly different
levels of departure and arrival delay. Therefore, in the figures and tables below intra-EU delay
refers to departure delay and extra-EU delay refers to both departure and arrival delay.
Delayed flights
The number of EU+3 flights within scope of Regulation (EC) 261/2004 affected by delays of
over two hours are shown in Table 2.5 and Figure 2.2.
Table 2.5: Number of delayed flights of over 2 hours
Type
Intra-
EU
flights
Extra-
EU
flights
Metric
Intra-EU
flights (‘000s)
Intra-EU
delays (‘000s)
% of intra-EU flights delayed
Extra-EU
flights (‘000s)
Extra-EU
delays (‘000s)
% of extra-EU flights delayed
All flights (‘000s)
2011
5,922
43
0.7%
1,148
17
1.5%
7,070
61
0.9%
2012
5,715
40
0.7%
1,151
18
1.5%
6,866
58
0.8%
2013
5,510
42
0.8%
1,176
19
1.6%
6,686
61
0.9%
2014
5,543
39
0.7%
1,214
18
1.5%
6,757
57
0.8%
2015
5,670
45
0.8%
1,239
16
1.3%
6,908
62
0.9%
2016
6,020
57
0.9%
1,260
18
1.5%
7,280
76
1.0%
2017
6,216
59
0.9%
1,336
21
1.6%
7,552
80
1.1%
2018
6,397
81
1.3%
1,454
28
1.9%
7,851
109
1.4%
Flights
All delays (‘000s)
% of flights delayed
Source: Steer analysis of CODA and OAG data
8
Based on ICAO wake turbulence categories (WTC)
January 2020 | 16
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0043.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The figure below shows the number of delayed flights, shown as bars on the left vertical axis,
and an index of flights in scope of the Regulation (shown in Table 2.1) where 2011 is indexed
as 100, shown as the dotted line on the right vertical axis.
Figure 2.2: Number of delayed flights of over 2 hours (Intra-EU and extra-EU delays)
Source: Steer analysis of CODA data
Although there was some variation between years, the number of flights delayed over two
hours did not increase or decrease significantly between 2011 and 2015, however, increases in
delays in 2016 (+22%) and 2018 (+37%) mean the overall number of delayed flights has
increased significantly in recent years and has almost doubled between 2014 and 2018. The
number of flights delayed has grown with a CAGR of +8.8%, between 2011 and 2018,
compared to the overall growth of all (in-scope) flights at a CAGR of +1.5%. This coincides with
the increasing amount of ATC-generated disruption in recent years, particularly over the
summer. The average ATFM en-route delay minutes per flight between 2011 and 2024 are
shown in Figure 2.3.
January 2020 | 17
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0044.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 2.3: ATFM en-route delay (2011-2024)
4.5
ATFM en-route delay mins per flight
4.0
3.5
3.0
2.5
2.0
1.5
1.0
0.5
-
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024
Target
Actual
Forecast
Source: Eurocontrol
ATFM en-route delay has increased steadily between 2013 and 2017, deviating from the target
level, and almost doubled in 2018. Between 2019 and 2021, ATFM delay is forecast to increase
significantly further, before starting to fall in 2023. The historic and forecast increase in delay
between 2013 and 2023 reflects under-capacity in the ATM system and the lack of sufficient
resources and infrastructure to accommodate traffic demand.
Intra-EU and extra-EU flight delays have followed a similar trend over the period and intra-EU
flights’ share of delays has therefore remained unchanged at between 70% and 75%. The
relative length of delays between years has remained constant also, while there does not
appear to be a significant difference in the distribution of delay times between intra-EU and
extra-EU flights.
The number of intra-EU flights and extra-EU flights delayed, for different lengths of delay, are
shown in Figure 2.4 and Figure 2.5 respectively. Note that the delay figures shown are not
cumulative, that is, those delayed over two hours do not include those delayed over three
hours (and so on).
The figures below shows the number of delayed flights (by length of delay), shown as bars on
the left vertical axis, and an index of flights in scope of the Regulation (shown in Table 2.1)
where 2011 is indexed as 100, shown as the dotted line on the right vertical axis.
January 2020 | 18
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0045.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 2.4: Intra-EU delayed flights by length of delay
Source: CODA, Steer analysis
Figure 2.5: Extra-EU delayed flights by length of delay
Source: CODA, Steer analysis
The proportion of extra-EU flights delayed on departure and arrival, disaggregated by EU+3
and non-EU+3 carriers, is shown in Table 2.6.
January 2020 | 19
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0046.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 2.6: Extra-EU flights delayed by over 2 hours by carrier type
Type
Arrivals
Metric
EU+3 carriers
Non-EU+3
carriers
EU+3 carriers
2011
1.4%
1.9%
1.5%
1.8%
2012
1.4%
2.5%
1.4%
2.4%
2013
1.6%
1.9%
1.5%
2.0%
2014
1.4%
1.9%
1.4%
1.8%
2015
1.3%
1.9%
1.3%
1.7%
2016
1.4%
2.3%
1.4%
2.0%
2017
1.3%
3.1%
1.4%
2.8%
2018
1.8%
2.4%
1.8%
2.5%
Average
1.4%
2.2%
1.5%
2.1%
Departures
Non-EU+3
carriers
Source: CODA, Steer analysis
The proportion extra-EU flights operated by EU+3 carriers delayed on arrival, which are in
scope of the Regulation, is lower in comparison to those operated by non-EU+3 carriers, which
are not in scope of the Regulation. This suggests Regulation 261/2004 could have reduced
delays on flights within its scope. However, the differential between the proportion of flights
delayed on departure, between EU+3 carriers and non-EU+3 carriers (which are both in scope
of the Regulation), is similar to that for arrivals. This suggests the higher proportion of delays
for non-EU+3 carriers may not be driven by Regulation 261/2004. In addition, across the
period shown, although the proportion of flights delayed on departure for non-EU+3 carriers
(which are in scope of the Regulation) is slightly lower than the proportion of flights delayed
on arrival (which are not in scope of the Regulation), the difference is not significant. While it
is possible that Regulation 261/2004 has a marginal impact on the proportion of flights
delayed, it does not appear to be significant compared to other factors.
Reasons for flight delays
CODA has provided the proportion of delay minutes attributable to five different causes.
These are:
•
•
•
•
•
Reactionary delay;
Airline delay;
ATFM delay;
Weather delay; and
Other delay.
An aircraft operating a short-haul set of routes may, on a given day, perform 8 to 10 flights (4
or 5 rotations) with an early morning departure and late-night return to its base. Reactionary
delay is a knock-on
delay to a later flight resulting from a “primary” event (e.g. adverse
weather or a shortage of crew) which delayed an earlier one. Typically, airlines will have
scheduled flights in a way that maximises the use of their aircraft. Maintaining a high
utilisation of their assets is key to being able to offer lower fares, since fixed costs can be
distributed across more passengers. However, knock-on
delays may cascade through the day’s
schedule if there is not an opportunity to catch the programme back up or the opportunity to
deploy spare aircraft to “intercept” the knock-on
effect.
Although delay may be coded into the above causes for industry reporting purposes, in
practice with respect to air passenger rights, delay related to any of these causes may
generate a compensation obligation for airlines under Regulation 261/2004. For each of these
five delay causes, we have made an assumption on the proportion of the delay minutes
attributable to airlines in each year between 2011 and 2018, in the context of Regulation
261/2004.
January 2020 | 20
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0047.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The proportion of delay minutes that we have assumed are attributable to airlines, for each of
the five delay causes, is based on information provided by airlines and, between 2011 and
2018, is as follows (where the ranges refer to the variation across the years):
•
•
•
•
•
Reactionary delay: Between 80% and 100% of delays attributable to airlines
9
;
Airline delay: Between 80% and 100% attributable to airlines;
ATFM delay: 0% attributable to airlines;
Weather delay: 0% attributable to airlines; and
Other delay: Between 0% and 20% attributable to airlines.
We have assumed the proportion of delayed flights attributable to airlines, for each of the five
delay codes above, is equivalent to the proportion of delay minutes attributable to airlines
shown above.
The proportion of delayed flights attributable to airlines is therefore the proportion of delayed
flights which are not defined as extraordinary circumstances under the Regulation, and
therefore for which airlines are liable for passenger compensation.
Based on the above, we have estimated the number of delayed flights (at the level of
disaggregation shown above), delayed within the control of the airline and therefore eligible
for compensation under Regulation 261/2004.
Table 2.7: Number of delayed flights by over 2 hours attributable to airlines
Type
Metric
All delays (‘000s)
Airline-attributable
delays (‘000s)
% of delays that are
airline attributable
2011
60,762
48,540
79.9%
2012
57,704
45,976
79.7%
2013
60,898
49,567
81.4%
2014
56,704
42,750
75.4%
2015
61,852
45,429
73.4%
2016
75,562
50,910
67.4%
2017
79,772
56,500
70.8%
2018
109,396
76,196
69.7%
Flights
Source: Steer analysis of CODA and OAG data
Based the delay data provided by CODA, the proportion of delays attributable to airlines,
between 2011 and 2018, was between approximately 70% and 80%. Airline-attributable delay
has decreased from approximately 80% in 2011 to approximately 70% in 2018, reflecting an
increase in delays classed as extraordinary circumstances
–
such as ATC delays.
The figure below shows the attribution of delayed flights, shown as bars on the left vertical
axis, and an index of flights in scope of the Regulation (shown in Table 2.1) where 2011 is
indexed as 100, shown as the dotted line on the right vertical axis.
9
From an air passenger rights and NEB perspective, reactionary delay would be attributable to the
airline except in the case where the flight immediately preceding the reactionary delay was delayed due
to extraordinary circumstances. The third or fourth flights carrying the knock-on reactionary delay
would not benefit from an extraordinary circumstance exemption, even if it applied to the first rotation.
From an APR perspective then, most reactionary delay can end up attributable to airlines.
January 2020 | 21
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0048.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 2.6: Number of delayed flights of over 2 hours (airline and non-airline attributable delays)
Source: CODA, Steer analysis
Note on the attribution of disruption
Taken in isolation, the 2015 van der Lans ruling
10
is likely to have increased the proportion of
delayed flights attributed to airlines in the years following the ruling, however, the data
provided by airlines and the analysis done does not appear to demonstrate this (as displayed
below). Although it is likely that airline-attribution increased following the ruling, there are a
number of other concurrent factors affecting overall situation, which means that it is not
possible to isolate the ruling’s impact.
For example, if the incidence of disruption attributed to
technical reasons that was brought into scope by the ruling happened to be lower in the years
following the ruling, then the ruling would appear to not have an effect overall
–
although
technical problems were deemed “inherent
in the normal exercise of the activity of the air
carrier”,
and hence not extraordinary, by the CJEU, this does not mean that the frequency of
their occurrence is regular. Conversely, if in the years following the ruling there was a higher
occurrence of non-airline attributable incidents, then the effect of the van der Lans ruling
would appear diminished.
The IATA delay codes used by airlines to classify disruption do not distinguish between causes
in-scope and out-of-scope of the Regulation. For example, code 52 (DG) may relate to damage
as a result of a collision with ground equipment (in-scope according to the Siewert
11
ruling)
and damage as a result of extreme weather conditions (out of scope
–
i.e. an extraordinary
circumstance). However for this study, airlines have provided the classification of delay and
the proportion of delays for which passengers have been eligible for compensation (i.e. airline-
attributable delays) from which we have been able to infer the range of attribution given
above.
10
11
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62014CJ0257&from=EN
http://curia.europa.eu/juris/documents.jsf?num=C-394/14
January 2020 | 22
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0049.png
Study on the current level of protection of air passenger rights in the EU | Final Report
As shown in Figure 2.3, a shortage of capacity in the European ATM system and the lack of
sufficient resources and infrastructure to accommodate air traffic demand has meant that
delays in the system have been increasing and that there is a lack of resilience in the ATM
system. The level of delay is forecast to continue to increase and will continue to impact
airlines and their passengers in the near future.
Looking at Figure 2.1, Figure 2.2 and Figure 2.3, it is clear that there exists a link between
ATFM (i.e. ATC) delay and the level of disruption recorded (both in terms of delays and
cancellations). Although ATFM (i.e. ATC) delay is outside the control of airlines and is not
attributed to them, the increased level of disruption generates knock-on effects. So although
the increase in disruption mirrors to an extent the increase in ATFM delay, the change in
attribution of this disruption to airlines (see Table 2.3 and Table 2.7) does not reflect this (i.e.
the proportion of airline-attributed disruption does not decrease inversely to increase in ATFM
delay).
Overall, this is a complex issue where it is not easy to precisely pinpoint the responsibilities.
For example:
•
In many cases, there is not a unique source of delay for a flight, but instead delay is the
result of many (and sometimes small) factors that add up. For instance, ATFM restrictions
may delay a flight by 30 minutes only, but this flight may be impacted by a late arrival of
ground handling services at the airport (as they had planned for the flight to arrive 30
minutes earlier) causing the next flight to miss its take-off slot. As a result the next flight
would have to wait for a new take-off slot, provided maybe only 15 minutes after the time
at which the aircraft would have been ready, but causing on arrival at destination the
crew to exceed its maximum hours on duty (as per European rules) meaning that a
standby crew would have to be called on. This would be possible but not necessarily
immediate
–
assuming standby crew was available at the airport, it would still have to
walk through the airport to get to the aircraft. Overall, the last flight may end up with a
delay of above 3 hours as a result of compounding factors some of which may be
attributed to the airline even though they were initiated by an ATFM delay which was not
attributable to the airline.
Sometimes disruptions are planned and stakeholders try to manage them. For instance, in
the case of ATC strikes impacting the French airspace, airlines may be asked by the air
navigation service provider to cancel 30% of their flights to/from/above French airspace.
The choice of which precise flights are cancelled is left to the airlines (who will prefer to
cancel short-haul flights over long-haul ones, or flights which would impact less on the
rest of the operations that day).
•
What these examples illustrate is the difficulty to attribute delay: should it be the first party to
create delay, should it be the party that creates the longest amount of delay time, should it be
the party that creates delay over three hours that should be deemed responsible? What the
second example shows is that it can be very hard for an airline to prove a direct causality for
why a specific flight got cancelled and not another.
To complicate the matters even further, the same issue is sometimes not attributed to airlines
in the same way. For example, in 2018 Ryanair cancelled flights ahead of a strike. This was
assessed to be extraordinary circumstances by the Spanish NEB but not by the UK one.
Moreover, when NEBs or others examine the question of extraordinary circumstances, they do
not just consider the circumstances themselves but also take into consideration, as per Article
January 2020 | 23
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0050.png
Study on the current level of protection of air passenger rights in the EU | Final Report
5(3) of Regulation 261/2004, whether all reasonable measures were taken by airlines to
mitigate the circumstances. It can be difficult for NEBs and airlines to agree on what constitute
“reasonable” measures and for airlines to demonstrate evidence in the case of pre-emptive
cancellations for instance.
Number of passengers affected by flight cancellations and delays
Approach
The industry-level information on cancellation and delays which is analysed above, is available
only for flights and not for passengers. To estimate the number of passengers affected by
flight cancellations and delays, we use the number of seats per flight (derived from OAG) and
apply a passenger load factor.
As with the number of flights (described in paragraph 2.7), the total number of seats arriving
and departing the EU+3 from 2011 to 2018 has been taken from OAG and is shown in Table
2.8 below. We have applied the OAG seat data to each of the sub-categories (listed in Table
2.4) to estimate the number of seats delayed and cancelled within each sub-category.
The total number of passengers arriving and departing the EU+3 from 2011 to 2017 has been
taken from Eurostat and has been used to estimate an average load factor across all flights in
each year
–
this is also shown in Table 2.8. Complete passenger numbers are not available for
2018, therefore we have made a load factor assumption based on the trend of the previous
years. These load factor assumptions have been applied to the number of seats in each sub-
category to generate the number of passengers in each sub-category affected by delays and
cancellations.
Extra-EU+3 arriving flights operated by non-EU+3 carriers are not within the scope of
Regulation 261/2004; the total number of seats and passengers under the scope of the
Regulation is also shown in Table 2.8.
Table 2.8: EU+3 seats and load factor (2011-2018)
Activity
All seats (million)
In-scope seats (million)
All passengers (million)
In-scope passengers (million)
Load factor
2011
1,052
979
896
834
85.1%
2012
1,046
971
905
841
86.6%
2013
1,059
980
923
854
87.2%
2014
1,094
1,009
965
889
88.1%
2015
1,145
1,053
1,009
928
88.1%
2016
1,222
1,125
1,068
983
87.4%
2017
1,295
1,191
1,144
1,052
88.3%
2018
1,374
1,259
1,223
1,121
89.0%
Source: Steer analysis of Eurostat and OAG data
Due to increasing load factors, as well as an increase in the average number of seats per flight,
the number of passengers (within the scope of Regulation 261/2004) has grown with a CAGR
of +4.3% between 2011 and 2018, which is more than double the CAGR of flights (+1.5%) over
the same period.
The load factors shown in table above are slightly higher than reported (for example by IATA)
for recent years; this is because OAG does not include all charter services and therefore
slightly underreports the total number of seats. However, although the number of seats is
January 2020 | 24
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0051.png
Study on the current level of protection of air passenger rights in the EU | Final Report
slightly under reported, the higher load factors based on actual passenger numbers will still
give the correct number of passengers (based on Eurostat data).
We have also used the average load factor across all flights, to generate separate load factors
for intra-EU+3 and extra-EU+3 flights. This has been done in order to more accurately capture
the number of passengers entitled to different levels of compensation on routes of different
distance bands under Regulation 261/2004. The load factor assumptions used for intra-EU+3
and extra-EU+3 flights are shown in Table 2.9.
Table 2.9: Intra-EU+3 and Extra-EU+3 seats and load factor (2011-2018)
Type
Intra-
EU
Metric
In-scope seats (million)
In-scope passengers
(million)
Load factor
In-scope seats (million)
2011
733
645
88.0%
240
189
78.6%
2012
723
647
89.5%
242
193
80.0%
2013
725
654
90.1%
248
201
80.8%
2014
743
677
91.1%
259
212
81.8%
2015
777
708
91.1%
269
220
81.8%
2016
841
759
90.3%
276
223
80.9%
2017
887
810
91.3%
295
242
81.8%
2018
926
852
92.0%
325
269
82.8%
Extra-
EU
In-scope passengers
(million)
Load factor
Source: Steer analysis of Eurostat and OAG data
As with flights, passengers on extra-EU+3 arriving flights operated by non-EU+3 carriers are
not within the scope of Regulation 261/2004; therefore, these have not been included within
the analysis of delays, cancellations, denied boarding and downgrading.
Cancelled passengers
The number of EU+3 passengers within scope of Regulation (EC) 261/2004 (1.1 billion
passengers in 2018) affected by cancellations is shown in Table 2.10 and Figure 2.7 and for
2018 is estimated to be 17.6 million passengers.
Table 2.10: Number of passengers affected by a cancellation
Metric
All passengers
(‘000s)
Cancelled
passengers (‘000s)
% of passengers
cancelled
Airline-
attributable
passengers
cancelled (‘000s)
% of passengers
cancelled that are
airline
attributable
2011
833,539
7,378
0.9%
2012
840,593
8,451
1.0%
2013
854,214
10,738
1.3%
2014
889,498
6,675
0.8%
2015
927,911
7,612
0.8%
2016
982,725
10,156
1.0%
2017
1,051,750
13,097
1.2%
2018
1,120,837
17,571
1.6%
4,380
6,380
7,850
4,523
5,548
6,803
8,008
11,768
59.4%
75.5%
73.1%
67.8%
72.9%
67.0%
61.1%
67.0%
Source: Steer analysis of airline stakeholder and UK CAA data
January 2020 | 25
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0052.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The figure below shows the number of passengers on cancelled flights (in scope of the
Regulation), shown as bars on the left vertical axis, and an index of passengers in scope of the
Regulation (shown in Table 2.10) where 2011 is indexed as 100, shown as the dotted line on
the right vertical axis.
Figure 2.7: Number of cancelled passengers (airline and non-airline attributable cancellations)
Source: Steer analysis of airline stakeholder and UK CAA data
The number of passengers affected by cancellations between 2011 and 2018, as well as the
proportion of passengers affected by airline-attributable cancellations, follow a very similar
trend to the number of cancelled flights (shown in Figure 2.1). However, as passenger
numbers have grown at a faster rate than flights between 2011 and 2018, the number of
passengers affected by cancellations has grown with a CAGR of +13.2%, compared to a CAGR
of +10.1% for the number of flights affected.
Delayed passengers
The number of EU+3 passengers within scope of Regulation (EC) 261/2004 affected by long
delays (of two hours or more) is shown in Table 2.11 and Figure 2.8.
Table 2.11: Number of delayed passengers (long delays of two hours or more)
Metric
All passengers (‘000s)
Delayed passengers
(‘000s)
% of passengers
delayed
Airline-attributable
passengers delayed
(‘000s)
2011
833,539
8,186
1.0%
2012
840,593
8,034
1.0%
2013
854,214
8,853
1.0%
2014
889,498
8,372
0.9%
2015
927,911
9,054
1.0%
2016
982,725
11,017
1.1%
2017
1,051,7
50
11,961
1.1%
2018
1,120,8
37
16,523
1.5%
6,581
6,480
7,281
6,374
6,734
7,463
8,314
11,500
January 2020 | 26
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0053.png
Study on the current level of protection of air passenger rights in the EU | Final Report
% of passengers
delayed that are airline
attributable
80.4%
80.7%
82.2%
76.1%
74.4%
67.7%
69.5%
69.6%
Source: Steer analysis of CODA data
The figure below shows the number of passengers on delayed flights (in scope of the
Regulation), shown as bars on the left vertical axis, and an index of passengers in scope of the
Regulation (shown in Table 2.10) where 2011 is indexed as 100, shown as the dotted line on
the right vertical axis.
Figure 2.8: Number of delayed passengers (airline and non-airline attributable delays) (long delays of two hours
or more)
Source: Steer analysis of CODA data
The number of passengers affected by delays of two or more hours between 2011 and 2018,
as well as the proportion of passengers affected by airline-attributable delays, follow a very
similar trend to the number of delayed flights (shown in Figure 2.2). However, as passenger
numbers have grown at a faster rate than flights between 2011 and 2018, the number of
passengers affected by delays have grown with a CAGR of +10.6%, compared to a CAGR of
+8.8% for the number of flights affected.
The length of the delays experienced by passengers in 2018, across each of three distance
bands stipulated within the Regulation, is shown in Figure 2.9.
January 2020 | 27
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0054.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 2.9: Length of delay experienced by passengers by distance band (2018)
Source: Steer analysis of CODA data
Although more passengers were delayed overall on routes under 1,500km, slightly fewer
(55%) were delayed under two hours compared to passengers on routes between 1,500km
and 3,500km (60%) and over 3,500km (65%). In addition, a lower proportion (9%) of
passengers on routes under 1,500km were delayed by over five hours compared to routes
within the two distance bands over 1,500km (15%). Across the three distance bands, a similar
number of passengers were delayed between three and four hours (19% to 21%) and four to
five hours (7% to 9%).
January 2020 | 28
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0055.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Passengers denied boarding and downgraded
Approach
There are no industry-wide sources or public data available on the number of passengers who
are denied boarding or who are downgraded within the EU. To estimate the number of
passengers denied boarding and downgraded, we have therefore drawn upon information
provided by stakeholders as part of the consultation. Only a small number of airlines have
provided this information, and none have provided it for years prior to 2014.
Denied boarding
When the number of seats on a flight are oversold (which is sometimes done by airlines for
commercial reasons to take advantage of no-shows), passengers can be denied from boarding
if the number of passengers who turn up for the flight exceeds the number of seats available.
Passengers can be denied boarding either:
•
•
Voluntarily, where the airline asks for volunteers to forgo their seat in return for financial
compensation and a re-routing; or
Involuntarily, where there are not a sufficient number of volunteers and airlines select
passengers who must forgo their seat and are retoured and compensated in accordance
with Regulation 261/2004.
Based on the airline data provided, the proportion of passengers who voluntarily forgo their
seat when a flight is overbooked (i.e. voluntarily denied boarding) was between 0.02% and
0.03% between 2014 and 2018, and slightly decreased across the period (CAGR -1.2%). The
proportion of passengers who are involuntarily denied boarding was between 0.10% and
0.15% between 2014 and 2018 and increased across the period (CAGR +3.5%).
In the years it has been provided, to estimate the proportion of passengers that are voluntarily
and involuntarily denied boarding we have used the data provided by airlines. In years prior to
2014, we have assumed a continuation of the trend between 2014 to 2018 proportion. As
Ryanair, which in recent years has represented close to 10% of total EU passenger traffic, has a
stated policy
12
of not overbooking flights (and there is no evidence to suggest otherwise), we
have also reduced each of the denied boarding proportions by 10% to make the values used
more representative at EU-wide industry
–
we are unaware of any other major EU or non-EU
carriers that has a similar policy.
Downgrading
Passengers can be downgraded on flight when seats in the class they booked are not available
because, for example, they have been oversold or an alternative aircraft with a different
configuration to the one scheduled needs to be used. Based on the airline data provided, the
proportion of passengers downgraded was 0.05% between 2014 and 2018 with little variation
between years. Consistent with the previous study, we have assumed that passengers can only
be downgraded on extra-EU flights over 3,500km, as the vast majority of intra-EU flights do
not distinguish between flights classes in any meaningful way
–
this is supported by the data
provided by stakeholders, as only airlines operating a large amount of intercontinental traffic
have provided any data on downgrading.
12
https://www.ryanair.com/content/dam/ryanair/help-centre-pdfs/eu261-.pdf
January 2020 | 29
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0056.png
Study on the current level of protection of air passenger rights in the EU | Final Report
As with denied boarding, in the years it has been provided, to estimate the proportion of
passengers that are downgraded we have used the data provided by airlines. In years prior to
2014, as the proportion of passengers denied boarding has remained relatively constant, we
have assumed an average of the 2014 to 2018 proportion.
Instances
The number of passengers downgraded and denied boarding are shown in Table 2.12 and
Figure 2.10.
Table 2.12: Number of passengers downgraded and denied boarding
Metric
Type
2011
833,539
59
0.01%
266
776
0.03%
0.09%
2012
840,593
60
0.01%
265
811
0.03%
0.10%
2013
854,214
61
0.01%
266
854
0.03%
0.10%
2014
889,498
81
0.01%
273
922
0.03%
0.10%
2015
927,911
64
0.01%
214
994
0.02%
0.11%
2016
982,725
74
0.01%
193
1,056
0.02%
0.11%
2017
1,051,750
69
0.01%
277
1,209
0.03%
0.11%
2018
1,120,837
74
0.01%
327
1,690
0.03%
0.15%
Total passengers (‘000s)
Downgraded passengers (‘000s)
% of passengers downgraded
Passengers
denied
boarding
(‘000s)
% of
passengers
denied
boarding
Voluntary
Involuntary
Voluntary
Involuntary
Source: Steer analysis of airline data
The figure below shows the number of passengers downgraded and denied boarding (in scope
of the Regulation), shown as bars on the left vertical axis, and an index of passengers in scope
of the Regulation (shown in Table 2.10) where 2011 is indexed as 100, shown as the dotted
line on the right vertical axis.
Figure 2.10: Number of passengers downgraded and denied boarding
Source: Airline data, Steer analysis
January 2020 | 30
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0057.png
Study on the current level of protection of air passenger rights in the EU | Final Report
We observe that the proportion of passengers downgraded or denied boarding is very low and
appears relatively constant. Based on the data provided by airlines, the total number of
passengers denied boarding (voluntarily and involuntarily) is dominated (90% to 95%) by
passengers denied boarding involuntarily.
Although the proportion of passengers denied boarding and downgraded has remained
relatively constant throughout the period shown, the number of affected passengers remains
low in comparison to the total number of passengers. In 2018, approximately 1 in 660
passengers were involuntarily denied boarding, 1 in 3,400 were voluntarily denied boarding
and 1 in 15,000 were downgraded.
Proportion of passengers who claim compensation
It is important to understand that
there is no publicly and reliable information available on
the number of passengers who try to claim compensation.
However, in this study we have
been able to estimate the “successful claim rate”
as detailed below, based on a combination
of data received from airline and claim agency stakeholders.
The successful claim rate as used in this study, refers to the following ratio:
���������������������������������������� claim rate =
eligible passengers claiming ������������ ������������������������������������ ������������������������������������������������
eligible passengers
Eligible
passengers are those who have faced disruption which is
attributed to the airline
(i.e.
where extraordinary circumstances did not apply). So, in this study,
the successful claim rate
is the proportion of passengers that are entitled to compensation
and
successfully claim it,
i.e. passengers generating a compensation cost for airlines
(irrespective of the redress means
used
13
). It should not be understood as simply meaning the proportion of passengers who
contact airlines to claim compensation.
Airlines of course also receive claims from passengers who are not eligible for compensation
under Regulation 261/2004. This may be because extraordinary circumstances applied, or
because passengers submit a claim without a full understanding of the rules (e.g. for a delay of
1.5 hours). Ineligible claims such as these may generate a processing and administrative
burden, however they do not drive airline costs for providing compensation.
The total cost to airlines of providing compensation can be estimated as follows:
(�������������������� ���������������� �������� ������������������������������������������������)
= (���������������������������� ������������������������������������������������ ����������������������������������������) × (���������������������������������������� �������������������� ����������������)
× (������������������������������������������������ ��������������������)
As indicated above, the successful claim rate has been calculated based on self-reported
information from airlines and claim agencies.
Implicit in this rate then is airlines’ level of
compliance, since all claims that are compensated are naturally deemed eligible (i.e. airlines
do not somehow record a claim as eligible and then not compensate it). The level of
compliance arises from potentially different assessments between airlines and NEBs of
13
The successful claim rate does not differentiate between whether an airline provided compensation
after a passenger submitted an eligible claim, and if it did so only after reminders, or only after the
intervention of a NEB, ECC, ADR/ODR/court or claim agency. The successful claim rate does not then
reveal the time and administrative burden for passengers to claim and receive compensation
–
this is
described in Chapter 3.
January 2020 | 31
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0058.png
Study on the current level of protection of air passenger rights in the EU | Final Report
whether a claim is eligible or not. This is explored in more detail in the next section (see
paragraph 2.85), however, the successful claim rate (or
“claim rate” hereafter)
as specified
here is appropriate for calculating the actual total cost to airlines of providing compensation.
The weighted average successful claim rate across airlines for cancellations, delays and denied
boarding is shown in Figure 2.11.
Figure 2.11: Passenger successful claim rate for cancellations, delays and denied boarding
60%
50%
37.5%
28.9%
40%
Claim Rate
30%
20.6%
20%
8.0%
10.1%
11.6%
15.0%
26.4%
10%
-
2011
2012
2013
2014
2015
Delays
2016
2017
2018
Cancellations
Denied Boarding
Weighted Average
Source: Airline and claim agency data, Steer analysis
The figure above shows that for delays in 2018, 58% of passengers who were eligible for
compensation successfully claimed and received compensation. The remaining 42% of eligible
passengers may comprise eligible passengers who did not try to claim and/or eligible
passengers who did not receive their compensation when they claimed. The issue of eligible
passengers who claimed but did not receive compensation relates to compliance and is
discussed from paragraph 2.85.
Based on airline data, the claim rates have increased significantly from around 5% for
cancellations and 10% for delays in 2011 to 18% for cancellations and 58% for delays in 2018,
reflecting the increased awareness amongst passengers of their compensation entitlements
under Regulation 261/2004. Claim rates for denied boarding have increased from 6% to 30%
over the same period.
Across the three types of disruption, the weighted average (weighted by the number of
passengers affected by each type of disruption) claim rate has risen from 8.0%, in 2011, to
37.5% in 2018. This corroborates the findings from the 2019 Eurobarometer survey
14
which
14
Special Eurobarometer 485, Passenger Rights, Field work took place in February/March 2019:
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/survey/getsurveydetail/instruments
/special/surveyky/2200
January 2020 | 32
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0059.png
Study on the current level of protection of air passenger rights in the EU | Final Report
found that 37% of passengers traveling by air, that had experienced some type of disruption,
made an official complaint.
Across the period shown the claim rate for delays is significantly higher than for cancellations.
It is unclear why this is the case, but it is likely to be because cancellations within the scope of
the Regulation can take place up to two weeks before the scheduled departure date. If, for
example, a flight is cancelled a week before departure and passengers are given an alternative
flight at a similar time, they personally experience little disruption or delay and therefore are
unlikely to feel (or be aware that) they are sometimes entitled to compensation. In addition,
instead of a re-routing, passengers on cancelled flights can be offered reimbursements
–
many
passengers are likely to be unaware they are also entitled to compensation. Even passengers
who are subjected to last-minute cancellations, if they are re-routed within a reasonable
timeframe and have received care and assistance in the meantime, may not feel that they are
able to claim compensation.
The claim rate for denied boarding is also lower than for delays in 2018. The Regulation states
that, when airlines deny passengers boarding on a flight, they are obliged to provide
passengers with compensation proactively. Although some airlines stated that this was their
policy, the fact some passengers claim compensation for being denied boarding suggests
airlines are not 100% compliant
–
a number of NEBs also reported complaints in relation to
denied boarding. The claim rate for denied boarding therefore represents only a proportion of
the passengers claiming compensation who were not offered compensation proactively by
airlines.
Proportion of airlines that comply with the Regulation
The proportion of airlines that comply with Regulation 261/2004 has had to be estimated,
since airlines self-reported that they are fully compliant with the Regulation, while NEBs were
not able to provide comprehensive quantitative rates of airline compliance, but only
qualitative views on compliance based on the visibility afforded by the complaints they
receive.
To estimate the level airline compliance with Regulation 261/2004, we have sought to
quantify:
•
•
•
The proportion of eligible compensation claims that airlines pay compensation for
(separately for delays and cancellations, and denied boarding);
The proportion of instances in which airlines provide care and assistance
15
to passengers
when they are required to under the Regulation (across all types of disruption); and
The proportion of instances in which airlines provide a reimbursement or re-routing when
they are required to under the Regulation (across all types of disruption).
A number of stakeholders have noted that in many cases airlines do not pay the compensation
claimed by passengers affected by disruption under the Regulation. The only disaggregated
data found through our research of the largest EU aviation markets, which allows us to
quantify the proportion of eligible passenger delay and cancellation compensation claims that
is granted compensation by airlines, according to consumer representative Which?, based on
15
As the proportion of instances in which airlines provide information to passengers was not easily
quantifiable, it has not been included as part of the analysis.
January 2020 | 33
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0060.png
Study on the current level of protection of air passenger rights in the EU | Final Report
data it obtained from the UK CAA in 2017
16
. This provides, for a number of EU and non-EU
airlines, the level of disruption, the number of eligible claims and the number of claims that
are eventually granted compensation (noting that this may require NEB intervention). Based
on the average value calculated by weighting the in-scope passengers carried and disrupted
for each of the airlines, we have estimated that at least 17% of
eligible passengers who
claimed
compensation did not receive it, and a maximum of 83% did. It does not mean that
83% of passengers eligible for compensation actually receive it, since the system is claim-
based i.e. requiring passengers to claim for compensation.
We have therefore assumed that airline delay and cancellation compensation compliance was
83% in 2017 and, in order to estimate a trend in the level of airline compliance across the
period, analysed the level airlines’ compensation cost per passenger (after normalising for the
level of disruption and passenger claim rates) compared to the estimated cost per passenger
in a scenario where all eligible passengers affected by disruption are provided with
compensation. This analysis implies that, between 2011 and 2018, the level of airline
compliance increases by 3.7% per year.
Improved compliance is also confirmed (anecdotally) by NEBs despite them handling
increasing volumes of complaints (as a result of growth in passengers, disruption and
awareness). Discussions with stakeholders (NEBs in particular) seem to suggest that (from NEB
interaction with airlines) it is overall more (cost-)efficient for airlines to put improved
processes and systems in place to deal with claims than to rely on more manual arrangements,
which also supports the finding that compliance is gradually improving.
These airline delay and cancellation compensation compliance rates apply to passenger claim
rates. For example, in 2017, if on average 35% of eligible passengers affected by disruption
claimed compensation and 83% of airlines were compliant with their compensation
obligations, then only 83% of the eligible passengers who claimed compensation received it.
This means, of the passengers affected by disruption in 2017, 29% (83% of 35%) received
compensation.
As has been noted above, although under the Regulation airlines are obliged to offer
passengers who are denied boarding compensation proactively, this requirement is not always
adhered to. Based on the number of claims received by airlines, as well as the number of
complaints received by NEBs and claim agencies, in relation to denied boarding, we estimate
that, in 2018, airlines are compliant with denied boarding obligations in 84% of cases. We have
assumed that, between 2011 and 2018, airlines’
compliance with denied boarding
compensation increases in line with delay and cancellation compensation.
Based on the information provided by airlines and NEBs, passengers who experience
disruption receive the care and assistance they are entitled to in most
–
but not all
–
cases.
Based on anecdotal evidence, when passengers experience significant disruption, they will
tend to receive the care and assistance they are entitled to, but when they are delayed for
shorter periods, in many cases they will not receive it. To quantify the proportion of instances
in which airlines provide care to passengers when they are required to under the Regulation,
16
https://www.which.co.uk/news/2017/07/flight-compensation-and-the-airlines-that-wont-pay/
Which? numbers have been cross-checked with the UK CAA. Non-compliance is recorded when airlines
explicitly disagree (to the NEB) with a NEB decision and do not provide compensation to passengers
who the NEB deemed eligible.
January 2020 | 34
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0061.png
Study on the current level of protection of air passenger rights in the EU | Final Report
we have compared the level airlines’ care cost per passenger with the estimated cost per
passenger in a scenario where all eligible passengers affected by disruption are provided with
care and assistance. This analysis implies that, in 2018, passengers were provided with the
care and assistance they were entitled to in 71% of cases and, between 2011 and 2018,
compliance increased by an average of +1.8% per year.
The 2018 figure is higher than that reported in the 2019 Eurobarometer survey which reported
that 53% of air passengers affected by disruption were “somehow remedied”, including 28%
who received food and drinks and 10% accommodation
17
.
We have received very limited information from airlines in relation to reimbursements and re-
routing; within airlines’ financial accounts, reimbursements are often recorded as negative
revenue which means they do not possess information on reimbursement and re-routing
costs. A number of NEBs have stated that airlines often do not fully comply with re-routing
obligations, as they are often unwilling to reroute passengers on the next available flight if it is
operated by a rival carrier (instead passengers often have to wait for the next available flight
of the carrier in question). Although we are aware of airlines’ non-compliance
in this area, we
have not been provided with information that enables us to fully quantify how often it occurs.
We have assumed that passengers are not rerouted on a different airline’s flight when they
should be in 33% of all re-routing cases, therefore, airlines are not compliant with re-routing
requirements in a third of cases.
Although airlines are not fully compliant with the strictest interpretation of re-routing
“at the
earliest opportunity” nor proactively and correctly offer passengers who have been disrupted
the choice between reimbursement and re-routing, we do assume that all passengers will
eventually either be rerouted to their destination (albeit not at the earliest opportunity nor
perhaps at the most convenient time/day for the passenger), or not travel and be reimbursed.
Mishandled baggage and number of luggage-related complaints
Approach
The number of instances of mishandled baggage have been taken from SITA baggage reports,
which contain the instances of mishandled baggage per 1,000 passengers at a European level
(between 4 and 9 per 1,000 passengers) and the proportion of cases of mishandled that are
lost/stolen, damaged and delayed at world level, which we have applied to the European-level
total instances of mishandled baggage per 1,000 passengers. The information provided by
airlines is consistent with the SITA baggage reports, in terms of both the instances of
mishandled baggage and the proportion of instances that are lost/stolen, damaged and
delayed.
To estimate the total number of instances of each type of mishandled baggage on EU+3 flights,
we have applied the number of instances per 1,000 passengers (of each type of mishandled
baggage) to the total number of passengers. To estimate the number of baggage-related
complaints, we have used complaint information provided by airlines to generate the number
of baggage-related complaints per 1,000 passengers and the number of complaints per
instance of mishandled baggage (i.e. the claim rate). In this context, a complaint is when, for
example, an outbound passenger whose bag has been delayed follows up with a claim for
17
18% were offered an alternative flight at no extra cost and 14% received a financial compensation.
January 2020 | 35
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0062.png
Study on the current level of protection of air passenger rights in the EU | Final Report
reimbursement/damages for clothes that they might have had to buy to wear until they
received their bag.
Instances of mishandled baggage
The number of instances of mishandled baggage in Europe is shown in Table 2.13 and Figure
2.12.
Table 2.13: Instances of mishandled baggage in Europe (millions)
Type
Metric
Lost/Stolen
Damaged
Delayed
Total
2011
0.6
1.7
8.5
10.8
896
0.5
1.6
7.6
9.7
2012
0.5
1.5
7.4
9.4
905
0.4
1.4
6.7
8.5
2013
0.3
1.3
6.8
8.4
923
0.3
1.2
6.3
7.8
2014
0.5
1.4
6.9
8.8
965
0.4
1.4
6.7
8.5
2015
0.4
1.3
6.2
7.9
1,009
0.4
1.3
6.3
8.0
2016
0.6
1.3
6.2
8.1
1,068
0.6
1.4
6.6
8.6
2017
0.3
1.2
5.4
6.9
1,144
0.4
1.3
6.2
7.9
2018
0.3
0.9
4.1
5.3
1,223
0.3
1.2
5.0
6.4
Instances per 1,000
passengers
Passengers (million)
Lost/Stolen
Total instances
(million)
Damaged
Delayed
Total
Source: SITA, Steer analysis
Figure 2.12: Instances of mishandled baggage
Source: Steer analysis of SITA data
Delays accounted for the majority (75% to 80%) of mishandled baggage instances over the
period, with damaged baggage and lost baggage accounting for around 16% and 5%
respectively. Although volatile between years, the overall number of incidents declined over
the period from around ten million instances in 2011 to around six million in 2018.
January 2020 | 36
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0063.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The decrease in the total number of instances of mishandled baggage per passenger between
2011 and 2018 (shown in Table 2.13) is likely due to a combination of both improving baggage
processing systems and a reduction in the number of checked bags per passenger. The
increasing share of LCC passengers within the EU (many of whom do not travel with checked
baggage) and network carriers’ response to the LCC business model (i.e. in some cases
charging for checked baggage) mean that the proportion of passengers traveling with checked
baggage is likely to have decreased between 2011 and 2018.
Based on the information provided by some airlines during the stakeholder consultation, the
number of checked bags per passenger has been decreasing
–
although at a lower rate than
instances of mishandled baggage per passenger shown in Table 2.13. This suggests that the
reduction in the total number of instances per passenger is due to a combination of both
improving baggage processing systems and a reduction in the number of checked bags per
passenger.
Complaints
The number of complaints in relation to mishandled baggage, as well as the number of
instances, per 1,000 passengers is shown in Table 2.14 and Figure 2.13.
Table 2.14: Instances and complaints of mishandled baggage
Metric
Instances of mishandled baggage (per
1,000 passengers)
Complaints of mishandled baggage
(per 1,000 passengers)
Complaint per instance (i.e. claim rate)
Source: Steer analysis of SITA and airline data
2011
10.8
0.8
8%
2012
9.4
0.9
9%
2013
8.4
1.0
12%
2014
8.8
1.1
13%
2015
7.9
1.4
18%
2016
8.1
1.5
18%
2017
6.9
1.6
22%
2018
5.3
1.5
29%
Figure 2.13: Instances and complaints of mishandled baggage
Source: Steer analysis of SITA and airline data
January 2020 | 37
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0064.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The number of baggage-related complaints has increased over the period shown, from 0.8
complaints per 1,000 passengers in 2011, to 1.5 in 2018. As the instances of mishandled
baggage have decreased over the same period, the proportion of passengers complaining to
airlines in relation to mishandled baggage incidents has increased significantly.
Summary of findings
The analysis done for this study indicates that the number of flights disrupted, in terms of
cancellations and delays over two hours, has increased significantly between 2011 and 2018.
The number of flight cancellations has increased from 67,000 in 2011 to 132,000 in 2018
(CAGR +10.1%) and the number of flights delayed has increased from 61,000 to 109,000 (CAGR
+8.8%). However, the proportion of all flights disrupted remains relatively low; cancellations
grew from 1.0% to 1.7% of flights between 2011 and 2018, and delays grew from 0.9% to 1.4%
of flights. The increased number of disruptions have been driven in part by increasing levels of
traffic. Between 2011 and 2018, the number of flights in scope of the regulation increased
from 7.1 million to 7.9 million (with CAGR of +1.5%). Traffic growth between 2016 and 2018
has been particularly strong (CAGR +4.4%) and the level of disruption has also increased
significantly in this period
–
between 2015 and 2018 the number of delayed flights has
increased by over +75% and the number of cancellations has more than doubled.
Cancellations and delays have increased at a faster rate than traffic, driving the increase in the
proportion of flights that have been disrupted. Much of the increased level of disruption can
be explained by increasing levels of ATFM delay generated in the single European sky, which
can cause further knock-on effects throughout the system. Throughout the period, the
majority of flight disruption has been attributed to airlines (i.e. to factors within the control of
airlines), although this has reduced in recent years. The causes of delay across airlines and
across the system vary, however, the overall reduction in airline-attributable delay could be a
reflection of the increased ATC disruption in the system that is mostly classed as an
extraordinary circumstance. The proportion of airline-attributable delays has fallen from
around 80% of all delays in 2011 to around 70% at in 2018, while the proportion of airline-
attributable flight cancellations has fallen from around 75% of all delays at the start of the
period around 65% at the end of the period.
The number of passengers affected by flight disruptions follows much the same trend as flight
disruptions, but due to increasing load factors between 2011 (85%) and 2018 (89%), the
number of passengers affected has increased at a greater rate over the period. The number of
passengers affected by cancellations has increased from 7.4 million in 2011 to 17.6 million
2018 (CAGR +13.2%) and the number of passengers affected by delays has increased from 8.2
million to 16.5 million (CAGR +10.6%). However, as with flights, the proportion of passengers
affected remains relatively small, with passengers affected by cancellations growing from 0.9%
to 1.6% and the proportion affected by delays growing from 1.0% to 1.5%.
In comparison to delays and cancellations, the number of passengers affected by denied
boarding and downgrading was low. The number of passengers denied boarding increased
from 0.9 million in 2011 to 1.8 million in 2018 (representing an increase from 0.08% to 0.14%
of passengers) reflecting increasing numbers of total passengers and a small increase in the
proportion of passengers denied boarding. The proportion of passengers affected by
downgrading remained relatively constant and represented 0.01% of passengers throughout
the period; the number of passengers affected grew from 59,000 to 74,000 passengers.
January 2020 | 38
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0065.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Based on analysis of data provided by airlines and claim agencies, passenger claim rates have
increased very significantly between 2011 and 2018, reflecting increasing awareness amongst
passengers of their rights to claim compensation either directly or via the claim agencies. In
2018, 38% of eligible passengers claimed compensation
–
up from 8% in 2011. There is a large
disparity between claim rates from cancellations and delays; in 2018, close to 60% of eligible
passengers affected by delays claimed and received compensation, as opposed to under 20%
affected by cancellations. The proportion of passengers claiming compensation in relation to
denied boarding (when they are not offered it proactively) was around 30% in 2018. The claim
rate measure used here does not differentiate between whether an airline provided
compensation after a passenger submitted an eligible claim, and if it did so only after
reminders, or only after the intervention of a NEB, ECC, ADR/ODR/court or claim agency. The
claim rate does not then reveal the time and administrative burden for passengers to claim
and receive compensation
–
this is described in Chapter 3
Airline compliance with paying eligible passenger compensation claims has increased
throughout the period, reflecting improved implementation by airlines, driven by a number of
factors, including complaint enforcement by NEBs (see Chapter 5) and the activity of claim
agencies (see Chapter 6), but is still below full compliance in 2018 at around 85%. Similarly,
airline compliance with passenger care obligations in the event of disruption has increased
throughout the period reaching 71% in 2018. There has been little evidence of airline non-
compliance with reimbursement and re-routing obligations.
Instances of mishandled baggage, on a per passenger basis, have decreased. This has been
driven by a combination of an improvement in baggage processing systems and a reduction in
the proportion of passengers traveling with checked baggage due to the charges now imposed
by airlines. In spite of passenger growth, the total number of instances of mishandled baggage
has also decreased. Increasing passenger awareness has driven an increase in the proportion
of passengers making baggage-related complaints over the period, however, the overall
proportion in 2018 was still low at around 30%.
January 2020 | 39
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0066.png
Study on the current level of protection of air passenger rights in the EU | Final Report
3
Air passengers’
perspective
on
their rights
Introduction
This chapter focuses on the expectations that air passengers have of their rights when they
travel (defined as not the journey itself but the phases of pre and post-travel) and analyses the
extent to which the 10 passenger rights presented by the Commission in its 2011
communication
18
have been applied in the aviation area. The level of awareness of air
passengers of their rights and their satisfaction with the current rules and the opportunity for
redress are presented.
Application of the 10 core EU passenger rights
The 10 core EU passenger rights
In 2011, the Commission specified ten core EU passenger rights that are common to all modes
of transport
19
. Passenger rights are guaranteed in separate legislation for each of the four
modes of public transport, whilst the extent of coverage and specific rules differ from one
transport mode to another. The ten core EU passenger rights are presented below.
Table 3.1: Ten core EU passenger rights
EU right
1
Right to non-discrimination in access to
transport
Right to mobility: accessibility and assistance at
no additional cost for disabled passengers and
passengers with reduced mobility (PRM)
Right to information before purchase and at
the various stages of travel, notably in case of
disruption
Right to renounce travelling (reimbursement of
the full cost of the ticket) when the trip is not
carried out as planned
Right to the fulfilment of the transport contract
in case of disruption (re-routing and rebooking)
What is covered
Protection against direct or indirect
discrimination based on nationality,
residence, disability or reduced mobility
Accessibility and assistance at no additional
cost for passengers with a disability and/or
reduced mobility
Information provision before the purchase of
tickets, at various stages of travel, and
importantly, in case of disruption
Right to withdraw from the contract and
have the ticket price reimbursed for long
delays, cancelled travel or denied boarding
Right to receive an alternative transport
service as soon as possible or to rebook for
long delays, cancelled travel or denied
boarding
2
3
4
5
18
19
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2011:0898:FIN
COM(2011) 898 final of 19.12.2011–
“A European vision for Passengers: Communication on Passenger
Rights in all transport modes”.
January 2020 | 40
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0067.png
Study on the current level of protection of air passenger rights in the EU | Final Report
6
7
Right to get assistance in case of long delay at
departure or at connecting points
Right to compensation under certain
circumstances
Right to carrier liability towards passengers and
their baggage
Right to a quick and accessible system of
complaint handling
Minimum level of care in case of long delays
Financial compensation in case of long
delays, cancelled travel and in case of
involuntarily denied boarding in air travel
Liability and compensation for e.g. death or
injury of passengers and damage to luggage
Right to lodge a complaint with carriers if
dissatisfied with the service. May
subsequently lodge a complaint with the
competent National Enforcement Body (NEB)
Right to count on the proper application of
EU passenger rights by carriers. Enforcement
of EU rules by NEBs should happen through
effective, proportionate and dissuasive
sanctions for infringements
8
9
10
Right to full application and effective
enforcement of EU law
Source: COM(2011) 898 final
The legal framework in the EU
The liberalisation of the European air transport market has generated significant benefits for
consumers, including a wider choice of air services, and intense price competition between air
carriers has resulted in significantly lower fares. To limit any potential negative impacts that
this might have on service quality, several measures have been taken at EU-level to protect air
passengers, the most significant of these, Regulation 261/2004. In addition, other relevant
pieces of legislation must be considered.
Regulation 889/2002
Regulation 889/2002
20
on air carrier liability in the event of accidents also included significant
measures to protect passengers, transposing the Montreal Convention into EU law, while
extending its scope to cover to flights within individual Member States and introducing new
obligations to inform passengers of liability levels. The Montreal Convention replaced and
updated the obligations contained in the Warsaw Convention (previously incorporated into EU
law through Regulation 2027/1997). Among other things, the Montreal Convention limits air
carriers’
liability for loss, damage or delay to baggage to 1,131 Special Drawing Rights
21
(currently €1,400), except where a declaration of higher value is made. It also defines time
limits within which passengers must make claims against carriers.
Although the Montreal Convention is a relatively well-established piece of international law
relating to APR, research undertaken by Steer for the Commission in 2008 demonstrated that
40% of carriers’ conditions of carriage contained terms which were materially non-compliant
with the Convention and 7% contained terms which were likely to mislead passengers about
carriers’ obligations. In addition, the Convention places significant limitations on passenger
rights, as discussed in more detail below.
20
21
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32002R0889
Limit increased from 1,000 SDR by ICAO in June 2009 (see Report on the outcome of the review by
ICAO regarding the limits of liability under the Montreal Convention of 1999)
January 2020 | 41
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0068.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Regulation 1008/2008
Regulation 1008/2008
22
on common rules for the operation of air services, among other issues,
governs the licensing of European air carriers. The operating licence provisions require
competent licensing authorities to monitor compliance with the applicable requirements,
including air carriers’ financial situation. Authorities may revoke or suspend the licence, or
grant a temporary operating licence if a carrier is not able to fulfil certain financial obligations.
The Regulation also includes provisions on pricing, requiring that the final price must be
indicated at all times and include all unavoidable and foreseeable price elements, the price
must be broken down into air fares/rates, taxes and airport charges and other charges/
surcharges/fees, and any optional price elements must be indicated in a clear, transparent and
unambiguous way at the start of any booking process and offered on an ‘opt-in’ basis. Price
discrimination based on place of residence within the EU prohibited is also prohibited.
Regulation 1107/2006
Regulation 1107/2006
23
(the PRM Regulation) concerning the rights of disabled persons and
persons with reduced mobility when travelling by air prescribes rules for the provision of
assistance to disabled passengers and passengers with reduced mobility travelling by air, to
protect them from discrimination and ensure they receive suitable assistance at airports and
on-board. The Regulation specifies what assistance should be provided by each of the airline
and the airport operators and at whose cost. More analysis on the PRM Regulation is included
below in this chapter.
Directive 2015/2302
Directive 2015/2302
24
(the Package Travel Directive (PTD)) on package travel and linked travel
arrangements, which replaces the previous Directive 90/314
25
from 1990, provides traveller
protection for those booking at least two different types of travel services for the same trip or
holiday. The Directive specifies the package organiser’s levels of liability for compensation. It
covers pre-arranged package holidays, but also self-customised packages, where the traveller
chooses different elements from a single point of sale online or offline. Furthermore, these
rules provide certain protection for linked travel arrangements, which is when, for example,
the traveller books a flight on a website and is then invited to book a hotel on a different
website (provided that the second booking is made within 24 hours).
The Package Travel Directive ensures that travellers purchasing packages and linked travel
arrangements are protected against the insolvency of airlines and other service providers. This
is discussed in much greater details in Chapter 8.
Regulation 2111/2005
Regulation 2111/2005
26
, on the establishment of a Community list of air carriers subject to an
operating ban within the Community and on informing air transport passengers of the identity
of the operating air carrier provides for the Commission to draw a list of banned airlines: the
“EU Air Safety List”. Annex B of this list includes airlines that are restricted from operating
under certain conditions in Europe. Both lists are updated regularly and published in the
22
23
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32008R1008
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32006R1107
24
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015L2302
25
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31990L0314
26
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32005R2111
January 2020 | 42
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0069.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Official Journal of the European Union. The Regulation also specifies a legal right for
passengers to be informed of the identity of the air carrier actually performing the service.
Relevant legislation of horizontal consumer protection
Other elements of the EU legislative framework protect consumers when travelling by air and
can be relevant. In particular:
•
Directive 93/13 on Unfair Contract Terms
27
prohibits a number of specific terms from
consumer contracts and has been used by enforcement authorities in the past to require
IATA to change its guidance on Conditions of Carriage and some individual airlines to
change their Terms and Conditions.
Directive 2005/29 on Unfair Commercial Practices
28
prohibits various practices such as
‘bait advertising’ (advertising an
air ticket or other product when in practice it is not
available in sufficient quantities at the advertised price to meet demand). It also includes
a general prohibition on commercial practices that are misleading or aggressive.
Regulation 2006/2004 on consumer protection cooperation
29
; and
Directive 2011/83 on consumer rights
30
.
•
•
•
The EU has, over the last 20 years, adopted a set of rules designed to protect passengers,
irrespective of the mode of transport they use. These rules build on previous legislation on the
protection of consumers (see paragraph 3.11) and package holidays (see paragraph 3.8), as
well as applicable international conventions (the Montreal Convention for air transport, see
paragraph 3.4), the EU Charter of Fundamental Rights and national provisions. The Court of
Justice of the European Union also plays a leading role in interpreting these rules.
Extent to which the 10 core EU passenger rights are addressed by EU APR legislation
As explained above, EU legislation on air passenger rights has been created through a
succession of legislative texts, and not through a unique strategic vision. It is therefore
important to check the extent to which the ten core EU rights are addressed in EU law, and in
which manner, as the “layers” and varied scope of the EU legislation make it more complex.
We present below (see Table 3.2) an assessment on the implementation for the ten core
passenger rights for air passengers. It is followed by an analysis of their actual enforcement
under currently established EU rules, both APR specific and horizontal ones (see Table 3.3).
27
28
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32005L0029
29
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32004R2006
30
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0083
January 2020 | 43
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0070.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 3.2: Extent to which the ten core passenger rights are implemented in air transport by European legislation
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
1
Protection against
direct or indirect
discrimination
based on
nationality or
residence
Protection against
direct or indirect
discrimination
based on disability
or reduced mobility
Accessibility and
assistance at no
additional cost for
passengers with
disability and
reduced mobility
✓
Puts an end to a practice where residents of one Member State are unable to book on
the website of the same carrier in another country. It also means that travel agents
have access to the same fares irrespective of their geographical situation.
✓
This is discussed in paragraph 3.78 below.
2
✓
✓
This is discussed in paragraph 3.78 below.
PTD: The defined cost limits for the provision of accommodation (if possible, of
equivalent category, for a period not exceeding three nights per traveller) in cases
where it is impossible to ensure the passenger’s return as agreed in the contract, do not
apply to persons with reduced mobility.
When purchasing tickets online, pre-ticked boxes, internet cost traps and any additional
charges which passengers were not duly informed about in advance are prohibited, as
well as additional charges for certain means of payment (such as credit cards). In its
recent analysis
31
of Regulation 1008/2008, the Commission found that there was a fairly
high-rate of compliance by air carriers and that the Payment Services Directive which
applied from 2018 solved credit cards surcharges. However, transparent information on
the full price of the ticket and on what is included in the service is not standardised
–
3
Information
provision before
the purchase of
tickets
✓
✓
✓
31
SWD(2019)295 final
January 2020 | 44
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0071.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
there are also possible competitive distortions as national legislators or courts may take
different positions as whether such practices are to be considered as abusive.
PTD: The organiser and/or the retailer is required to provide the traveller with the
standard information as well as information on the main characteristics of the travel
services before the traveller is bound by any contract. Any changes to the pre-
contractual information need to be communicated clearly and comprehensively before
the conclusion of the package travel contract. The trader facilitating linked travel
arrangement is required to inform the traveller that he will not benefit from any of the
rights applying exclusively to packages and linked travel arrangements and that each
service provider will be solely responsible for the proper contractual performance.
The organiser and/or the retailer, the trader facilitating linked travel arrangement is
required to inform the traveller that he will benefit from insolvency protection.
Information
provision at various
stages of travel and
in case of
disruption
There is no provision that passengers be kept informed of the status of their flight
before or during travel. In practice many air carriers inform passengers when their flight
is disrupted bother before and during; however, as this is not mandated, this practice is
not universal or standardised.
261/2004: When passengers have a reservation for flight delayed by more than five
hours, they are entitled to a reimbursement of their original fare regardless of whether
the delay is classified as airline-attributable (see Chapter4).
PTD: If any travel services are not performed as set out in the package travel contract,
the organiser is required to arrange alternative arrangements or, where not that is not
possible, provide a price reduction and/or compensation for damages. Where the
organiser does not provide the passenger with suitable alternative arrangements within
a reasonable time period, the passenger can arrange a suitable alternative and request
reimbursement or terminate the package travel contract without paying a fee and can
request a price reduction and/or compensation.
4
Right to withdraw
and have the ticket
price reimbursed
for long delays
✓
✓
January 2020 | 45
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0072.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
Right to withdraw
and have ticket
price reimbursed
for cancelled travel
✓
✓
261/2004: When passengers have a reservation for flight that is cancelled a maximum
of two weeks before the scheduled departure time, they are entitled to the choice of a
reimbursement of their original fare regardless of whether the cancellation is classified
as airline-attributable (see Chapter 4).
PTD: If any travel services are not performed as set out in the package travel contract,
the organiser is required to arrange alternative arrangements or, where not that is not
possible, provide a price reduction and/or compensation for damages. Where the
organiser does not provide the passenger with suitable alternative arrangements within
a reasonable time period, the passenger can arrange a suitable alternative and request
reimbursement or terminate the package travel contract without paying a fee and can
request a price reduction and/or compensation.
261/2004: When passengers are denied boarding involuntarily on a flight on which they
have a reservation, they are entitled to the choice of a reimbursement of their original
fare (see Chapter 4).
PTD: If any travel services are not performed as set out in the package travel contract,
the organiser is required to arrange alternative arrangements or, where not that is not
possible, provide a price reduction or compensation for damages. Where the organiser
does not provide the passenger with suitable alternative arrangements within a
reasonable time period, the passenger can arrange a suitable alternative and request
reimbursement or terminate the package travel contract without paying a fee and can
request a price reduction and/or compensation.
261/2004: When passengers have a reservation for flight delayed by more than five
hours, they are entitled to the choice of either a rebooking with the same airlines or a
re-routing on either an alternative transport or on an alternative airline regardless of
whether the cancellation is airline-attributable. In practice, there is disagreement
amongst NEBs as to what constitutes the next available flight, with many airlines
avoiding re-routing passengers on other carriers wherever possible and re-routing
entitlements not being enforced in a uniform manner (see Chapter 4).
Right to withdraw
and have ticket
price reimbursed
for denied boarding
✓
✓
5
Right to receive
alternative
transport
service/transport
as soon as possible,
or to rebook for
long delays
✓
✓
January 2020 | 46
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0073.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
PTD: The Directive requires that the package organiser finds a way to ensure the
provision of the package continues.
261/2004: When passengers have a reservation for flight that is cancelled a maximum
of two weeks before the scheduled departure time, they are entitled to the choice of
either a rebooking with the same airlines or a re-routing on either an alternative
transport or on an alternative airline regardless of whether the cancellation is airline-
attributable. In practice, there is disagreement amongst NEBs as to what constitutes the
next available flight, with many airlines avoiding re-routing passengers on other carriers
wherever possible and re-routing entitlements not being enforced in a uniform manner
(see Chapter 4).
PTD: The Directive requires that the package organiser finds a way to ensure the
provision of the package continues.
261/2004: When passengers are denied boarding involuntarily on a flight on which they
have a reservation, they are entitled to the choice of either a rebooking with the same
airlines or a re-routing on either an alternative transport or on an alternative airline
regardless of whether the cancellation is airline-attributable. In practice, there is
disagreement amongst NEBs as to what constitutes the next available flight, with many
airlines avoiding re-routing passengers on other carriers wherever possible and re-
routing entitlements not being enforced in a uniform manner (see Chapter 4).
PTD: The Directive requires that the package organiser finds a way to ensure the
provision of the package continues.
When passengers have a booking for delayed flight, they are entitled to ‘reasonable’
care and assistance after between two and four hours delay depending on the distance
of their scheduled flight. For shorter delays passengers are provided with (or
reimbursed for) refreshments and meals, and for longer delays are provided with (or
reimbursed for) accommodation and associated costs. Given the mandated level of care
and assistance is that in ‘reasonable’ proportion to the length of the delay, the level
care and assistance provided is not standardised across airlines and can vary in terms of
Right to receive
alternative
transport
service/transport
as soon as possible,
or to rebook for
cancelled travel
✓
✓
Right to receive
alternative
transport
service/transport
as soon as possible,
or to rebook for
denied boarding
✓
✓
6
Minimum level of
care in case of long
delays
✓
January 2020 | 47
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0074.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
adequacy and quality
– the subjective nature of passengers’ entitlements also mean
that they are not enforced in a uniform manner (see Chapter 4).
261/2004: When passengers have a reservation for flight delayed by more than three
hours, they are entitled to between
€250 and €600 compensation, depending on the
length of the delay and the distance of their scheduled flight, when the reason for the
delay is classified as being not due to ‘extraordinary circumstances’ (i.e. not airline-
attributable). However, there is disagreement amongst NEBs and airlines precisely what
is the definition of ‘extraordinary circumstances’ and under which circumstances
airlines are liable for compensation
–
the CJEU rulings have sought to clarify this, but
there are still issues and compensation entitlement is not enforced in uniform manner.
Some airlines are also non-compliant with paying compensation, even after
enforcement action by NEBs (see Chapter 4).
PTD: If any travel services are not performed as set out in the package travel contract,
the organiser is required to arrange alternative arrangements or, where not that is not
possible, provide a price reduction and/or compensation for damages. Where the
organiser does not provide the passenger with suitable alternative arrangements within
a reasonable time period, the passenger can arrange a suitable alternative and request
reimbursement or terminate the package travel contract without paying a fee and can
request a price reduction and/or compensation.
261/2004: When passengers have a reservation for flight that is cancelled a maximum
of two weeks before the scheduled departure time, they are entitled
to between €250
and €600 compensation, depending on the distance of their scheduled flight, when the
reason for the cancellation is classified as being not due to ‘extraordinary
circumstances’ (i.e. not airline-attributable).
However, there is disagreement amongst
NEBs and airlines precisely what is the definition of ‘extraordinary circumstances’ and
under which circumstances airlines are liable for compensation
–
the CJEU rulings have
sought to clarify this, but there are still issues and compensation entitlement is not
enforced in uniform manner. Some airlines are also non-compliant with paying
compensation, even after enforcement action by NEBs (see Chapter 4).
Financial
compensation in
case of long delays
✓
✓
7
Financial
compensation in
case of cancelled
travel
✓
✓
January 2020 | 48
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0075.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
PTD: The Directive requires that the package organiser finds a way to ensure the
provision of the package continues. Compensation may be provided.
Financial
compensation in
case of
involuntarily
denied boarding in
air travel
Liability and
compensation for
e.g. death or injury
of passengers
Liability and
compensation for
damage to luggage
Right to lodge a
complaint with
carrier. May
subsequently lodge
a complaint with
the NEB
Right to count on
the proper
261/2004: When passengers are denied boarding involuntarily on a flight on which they
have a reservation, they are entitled to between €250 and €600 compensation,
depending on the distance of their scheduled flight. Some airlines are non-compliant
with paying compensation, even after enforcement action by NEBs (see Chapter 4).
PTD: The Directive requires that the package organiser finds a way to ensure the
provision of the package continues. Compensation may be provided, but there cannot
be double compensation (under PTD and under Regulation 261/2004) as per PTD Art.
14.5 stating that compensation can be deducted from each other
Protection for financial compensation in case of death or injury to passengers that takes
place on board the aircraft or upon embarking or disembarking
–
the financial
compensation is not
automatic and must be claimed in a court procedure.
Protection if carrier is liable for damage sustained in case of destruction or loss of, or of
damage to, checked baggage
–
passengers can only be reimbursed up to the value of
1,131
SDRs (approximately €1,400) (see Chapter
4).
261/2004 and 1107/2006: Passengers are entitled to make a complaint to airlines and,
if necessary, a complaint to an NEB. However, amongst both airlines and NEBs there are
different interpretations of provisions within passenger rights legislations as well as
varying levels of compliance with these provisions (see Chapter 5).
PTD: The right to compensation or price reduction defined in the directive does not
affect the rights of passengers under other regulations. Passengers are entitled to
present claims under the PTD and other EU Regulations, including Regulation 261/2004.
As explained above, there cannot be double compensation as per PTD Art. 14.5
✓
261/2004: The precise entitlements provided to passengers by carriers varies in terms
of adequacy and quality and is not uniform across carriers or Member States. In some
✓
✓
✓
8
✓
9
✓
✓
✓
10
✓
✓
✓
✓
✓
January 2020 | 49
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0076.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on application of rights
application of EU
passenger rights by
carriers.
Enforcement of EU
rules by NEBs
should happen
through effective,
proportionate and
dissuasive
sanctions for
infringements
cases, this is due to differences in interpretation (for example in relation to care and
assistance or re-routing obligations), but in other cases, it is due to wilful non-
compliance by carriers, who do not provide passengers with their entitlements and only
do so after enforcement action by NEBs or legal action by national to European courts
(see Chapter 5).
889/2002: passenger rights are implemented but passenger claiming for their rights
remains difficult without proper legal support.
1107/2006: as for Regulation 261/2004, there are some issues with interpretation and
some grey areas for both airlines and airports.
PTD: The right to compensation or price reduction defined in the directive does not
affect the rights of passengers under other regulations. Passengers are entitled to
present claims under the PTD and other EU Regulations, including Regulation 261/2004.
As explained above, there cannot be double compensation as per PTD Art. 14.5
Enforcement is discussed in more details in Table 3.3 below.
Source: Steer analysis
Note that the geographic scope of these legislative texts varies for non-EU Member States. For instance, whilst Regulation 261/2004 and 1107/2006 apply to Switzerland, Norway and
Iceland, the full scope of the CJEU rulings does not apply to EEA countries. The scope of Regulation 1008/2008 encompasses EEA Members (therefore including Norway and Iceland),
as does Regulation 889/2002, but not the Package Travel Directive. The national consumer protection frameworks in the Norway, Iceland and Switzerland have not been reviewed.
January 2020 | 50
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0077.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Extent to which the 10 core EU passenger rights are enforced under the APR legislation of
the EU
Enforcement of the ten core passenger rights comprises, as with their implementation, a
number of different practices, as a result of the different legislative texts. Consequently, there
is not one instrument for enforcement, but a variety of instruments, drawing from all or most
of the texts that form the framework of air passenger rights.
At EU+3 level, some texts provide for a clear enforcement mechanism, usually through
national enforcement bodies (as is the case under Regulations 261/2004 and 1107/2006), but
that the mechanisms are less obvious in some other cases:
•
•
Regulation 1008/2008 (for its provisions on pricing and ticketing) requires Member States
to ensure compliance with the rules.
The Package Travel Directive leaves to each Member State the adequate and effective
means to ensure compliance with the Directive. Note that the PTD is listed under the CPC
Regulation, therefore enforcement of the PTD must be done by CPC authorities,
ADRs/ODRs and courts.
Regulation 889/2002 which is an EU transposition of the Montreal Convention is not
explicit at all as to who is the enforcement instrument of the Regulation. Since most
baggage related issues fall under this regulation, it is not obvious at all where passengers
should turn to, in the case that the carrier did not fulfil its obligations.
Where consumer law applies, it is generally enforced at national level.
•
•
At national level, the tools for enforcement that are chosen by each authority (where there is
one) differ significantly.
In practical terms, Table 5.2 of the analysis of NEB competencies in Chapter 5 highlights this
problem as, in a number of Member States (including France, Germany, the Netherlands,
Spain, Italy), the NEB is not competent for Regulation 889/2002-related matters for instance,
leaving passengers unable to obtain redress without turning to a legal professional, as well as
leaving the airlines without oversight on these issues (beyond the voluntary codes that some
may have entered into). An assessment of the enforcement of for the ten core passenger
rights in air transport is presented below.
January 2020 | 51
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0078.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 3.3: Extent to which the ten core passenger rights are enforced in air transport
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on enforcement of rights
1
Protection against
direct or indirect
discrimination
based on
nationality or
residence
Protection against
direct or indirect
discrimination
based on disability
or reduced mobility
Accessibility and
assistance at no
additional cost for
passengers with
disability and
reduced mobility
MS
MS oversee this right under Regulation 1008/2008. According to the recent analysis
by the European Commission on Regulation 1008/2008, “the Air Services Regulation
has contributed to the equal treatment of passengers compared to the 2008
revision baseline. The 2013 Fitness Check found that 74% of websites tested did not
discriminate by place of residence”.
PRM NEBs are in charge of enforcement of this right. It is discussed in much greater
detail in paragraph 3.78 below, but it remains unclear as to how PRM NEBs enforce
this right in practice as the level of sanctions is low and few NEBs report on PRM
statistics.
1107/2006: PRM NEBs are in charge of enforcement of this right. It is discussed in
much greater detail in paragraph 3.78 below, but it remains unclear as to how PRM
NEBs enforce this right in practice as the level of sanctions is low and few NEBs
report on PRM statistics.
Costs of the PRM charge are supervised by the Independent Supervisory Authorities
(ISAs) in charge of airport charges (under Directive 12/2009).
PTD: Unclear enforcement by Member States under the PTD
MS oversee this right under Regulation 1008/2008. There remain some areas of
ambiguity between essential and optional elements to be offered on an opt-in
basis. The current wording requiring Member States to “lay down sanctions that are
effective, proportionate and dissuasive” allows much freedom for the Member
States and leads to a fragmented situation across the EU. As a result, there have
been national and EU court cases, and investigations testing the effectiveness of the
provisions and ensuring adequate price transparency and comparability.
PTD: we assume that this is addressed through the role of MS under Regulation
1008/2008
NEB
ADR/
ODR/
Courts
2
NEB
MS
ADR/
ODR/
Courts
3
Information
provision before
the purchase of
tickets
MS
MS
ADR/
ODR/
Courts
January 2020 | 52
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0079.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on enforcement of rights
Information
provision at various
stages of travel and
in case of
disruption
Right to withdraw
and have ticket
price reimbursed
for long delays
ADR/
ODR/
Courts
As this right is not implemented in EU legislation, no specific authority is in charge in
EU Member States, and this issue will be left to ADRs or courts.
NEB
MS
ADR/
ODR/
Courts
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
4
Right to withdraw
and have ticket
price reimbursed
for cancelled travel
NEB
MS
ADR/
ODR/
Courts
Right to withdraw
and have ticket
price reimbursed
for denied boarding
NEB
MS
ADR/
ODR/
Courts
January 2020 | 53
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0080.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on enforcement of rights
Right to receive
alternative
transport
service/transport
as soon as possible,
or to rebook for
long delays
NEB
MS
ADR/
ODR/
Courts
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
5
Right to receive
alternative
transport
service/transport
as soon as possible,
or to rebook for
cancelled travel
NEB
MS
ADR/
ODR/
Courts
Right to receive
alternative
transport
service/transport
as soon as possible,
or to rebook for
denied boarding
NEB
MS
ADR/
ODR/
Courts
January 2020 | 54
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0081.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on enforcement of rights
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
6
Minimum level of
care in case of long
delays
NEB
ADR/
ODR/
Courts
Financial
compensation in
case of long delays
7
NEB
MS
ADR/
ODR/
Courts
Financial
compensation in
case of cancelled
travel
NEB
MS
ADR/
ODR/
Courts
January 2020 | 55
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0082.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on enforcement of rights
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
261/2004: The enforcement procedures of NEBs are not uniform across Member
States; as well as differences in interpretation in a number of key areas, there are
also differences in the number of bodies within a Member State, the structure of
these bodies, their complaint handling processes, the enforcement powers they
possess and the level of sanctions they impose on carriers for non-compliance (see
Chapter 5).
PTD: The new PTD is came into force in July 2018 and is in the early stages of its
implementation, adequate information on the effectiveness of its enforcement is
not available. We nonetheless note that this will be done at Member State level, so
likely to not be very standardised.
Financial
compensation in
case of
involuntarily
denied boarding in
air travel
NEB
MS
ADR/
ODR/
Courts
8
Liability and
compensation for
e.g. death or injury
of passengers
Liability and
compensation for
damage to luggage
Right to lodge a
complaint with
carrier. May
subsequently lodge
a complaint with
the NEB
NEBs
Courts
Courts
889/2002: Enforcement is only possible through a court.
Courts
ADR/
ODR/
Courts
889/2002: Some NEBs are able to enforce this, but it would in most cases require an
ADR or a court
9
NEB
NEB
MS
ADR/
ODR/
Courts
No significant issues on the enforcement of this right.
January 2020 | 56
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0083.png
Study on the current level of protection of air passenger rights in the EU | Final Report
EU right
261/
2004
889/
2002
1008/
2008
1107/
2006
PTD
Other
Comments on enforcement of rights
10
Enforcement of EU
rules by NEBs
should happen
through effective,
proportionate and
dissuasive
sanctions for
infringements
NEB
NEB
MS
ADR/
ODR/
Courts
Overall, as presented in this table, there are some issues on enforcement in most of
the ten core passenger rights in air transport.
Source: Steer analysis
January 2020 | 57
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0084.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Expectations of air passengers regarding their rights
A comprehensive survey of passengers was not required as part of the Terms of Reference.
The research and analysis undertaken in this chapter related to the expectations and views of
passengers mainly draw from interaction with the consumer and passenger representative
organisations, as well as desk-research including the latest 2019 Eurobarometer survey.
Awareness of rights
Comprehensive sources of information on passengers’ awareness of
their rights remain
limited. We draw here on the results of the latest Eurobarometer survey (2019)
32
and
information from the stakeholder consultation undertaken for this study.
Stakeholder consultation
All stakeholders interviewed as part of the study reported that consumers or passengers were
increasingly aware that they had passenger rights (ECCs, BEUC, NEBs and airlines). In addition
to the display of information on air passenger rights at airports required by Regulation
261/2004, stakeholders noted that EC information campaigns and media reports also helped
to raise awareness
33
. The improvement in information available online and immediate access
to airline and other websites (supported by free airport Wi-Fi and free data roaming in the EU)
has supported passengers in their ability to access, understand and act on information.
However, passenger representatives and other stakeholders mentioned that awareness
(knowing that you have certain rights as a passenger) is not the same as knowledge (knowing
exactly which rights). Issues in this area highlighted by stakeholders include:
•
•
•
Most passengers are not fully aware of their rights and the fact that they can seek
compensation in certain circumstances;
Passengers not being aware that they are not entitled to compensation in all cases;
The gaps in passenger understanding are not helped by a lack of clarity on the process
that needs to be undertaken to assert those rights and due to the differing approaches
taken by individual airlines in meeting their obligations under Regulation 261/2004;
Given a significant majority of passengers are not regular travellers, they are likely only to
focus on their rights at the time they are being negatively affected, rather than being
aware in advance of travel.
•
Whilst at Regulation 261/2004 may appear reasonably understandable for an air passenger, it
is supplemented by extensive and technical CJEU case law. In addition, as illustrated above in
paragraph 3.3, at least five other pieces of EU legislation (including Regulations and Directives)
need to be understood and considered by passengers so that they can have a full
understanding of their rights and available protections. In addition, the lack of consistency at
national level for protection and enforcement of consumer rights across the EU does not allow
consumers to know their rights “once and for all”.
32
Special Eurobarometer 485, Passenger Rights, Field work took place in February/March 2019:
https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/survey/getsurveydetail/instruments/sp
ecial/surveyky/2200
33
https://ec.europa.eu/transport/themes/passengers/campaign_en
January 2020 | 58
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0085.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Eurobarometer
Eurobarometer findings show that awareness of EU passenger rights is still low: almost half of
the respondents who had travelled by air (49%) are aware of EU-established passenger rights.
Amongst respondents who travelled by air in the last 12 months, 40% agree they were well
informed by the airline about their passenger rights before travelling, with 14% saying they
totally agree. Almost three in ten (29%) agree they were well informed during travel, with 9%
who totally agree. Almost one quarter (23%) agree they were well informed by the airline
about their passenger rights after travel, with 7% saying they totally agree.
The awareness level of passengers facing disruptions regarding the complaints process is
discussed further below (see paragraph 3.58).
Provision of information to passengers
As explained above in Table 3.2, there is no requirement in Regulation 261/2004 for the
provision of information to passengers about their journey. This creates a gap for passengers.
Most airlines stated that they proactively contact passengers (when they have their contact
details, which is not always the case for passengers who booked through a travel agent for
instance), but there can nonetheless be an inconsistency in approach and whilst this may be a
“push” approach (airline sends the information to passengers’ email or telephone), other
airlines may instead only publish information on their website with passengers being required
to think to check the website for updates.
Passenger expectations of level of service by air carriers
No-shows
Under no-show clauses, airlines are able to cancel reservations of passengers who have missed
(for whatever reason) part of their journey on a multi-part itinerary. This can be a return flight,
an onward connection or a multi-part itinerary including a train journey. The clause indicates
that if one of the parts of the itinerary is missed then the remaining parts are deemed invalid,
even though they have been paid for and have not been cancelled. Passengers are then
required to purchase another ticket, pay a supplement or take another flight.
There are currently no EU laws forbidding the clause, however the European Commission put
forward a (partial) ban of no-show clauses in its 2013 proposal for the revision of Regulation
261/2004, which was supported and reinforced by the European Parliament. However, the
Council has removed the relevant provision from the legislative proposal
34
.
Airlines argue that such clauses are an important part of airline pricing freedoms and support
competition within the air travel market. They price according to demand from the origin to
the destination market and may price return tickets at a lower fare than two singles. Their
state that a ban of no-show clauses would undermine their pricing strategies. In addition,
airlines argue that provisions under the EU-US Open Skies agreement prevent the EU from
banning the use of no-show clauses.
BEUC made two central arguments in favour of banning the no-show clause:
34
EU Public Interest Clinic and European consumers organisation BEUC
January 2020 | 59
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0086.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
No-show clauses are unfair under Council Directive 93/13 on Unfair Terms in Consumer
Contracts. Counter to the requirements of that Directive, no-show clauses create a
“significant imbalance” between the consumer and the airline.
A number of EU Member State courts, including Germany, Spain and Austria, have already
ruled that the no-show clauses are unfair contract terms which breach national legislation
that emerges from EU Directives.
Price transparency
Regulation 1008/2008 sets requirements for price transparency that the final price including
all foreseeable and unavoidable elements ought to be shown throughout the booking process.
What are considered “foreseeable and unavoidable” elements can vary between passengers
and airlines though. Passengers would expect that a hand-luggage allowance should always be
included as part of the ticket and that travel companions would automatically be seated
together. Airline practices and the degree to which they unbundle their services do not always
align with passenger expectations, and additionally they vary between airlines, generating
complexity for passengers.
Airlines unbundle more and more, splitting their offer between basic and ancillary services. In
2018, around a third of Ryanair’s revenues came from ancillary services. This unbundling can
create problems for passengers in terms of price transparency, but also, as many passengers
may expect some of these services to be part of the basic offer (e.g. hand luggage or
guaranteed seating with travel companions), can lead passengers to perceive unbundling of
ancillary services by airlines as misleading. Recently, the Italian competition authority imposed
a high fine on Ryanair and Wizzair because these airlines charged a fee for hand luggage,
though it was considered by the court as an unavoidable cost and should therefore have been
included in the price initially displayed.
Whilst seating issues have not been particularly highlighted by stakeholders in this study
(maybe as there are more pressing issues), there is a concern for passengers that when
booking tickets online, many airlines charge extra to allow passengers to choose a specific
seat, meaning that people have to pay more to guarantee sitting with their companion or
group. If passengers choose not to buy specific seats, they may still be able to sit together but
it is not guaranteed even when all the tickets were purchased during the same transaction.
If passengers do not pay, this may result in them being allocated all along the cabin, including
children potentially separated from their guardians which might raise child safety issues as
well as potentially have an impact on the travelling experience of other passengers. Research
by a European NEB shows that “the chances of sitting together if passengers do not pay for
specific seats can vary widely depending on the airline used
35
”. The Canadian air passenger
rights regime introduced in 2019 also includes protections for children to be seated close to
their guardians.
Unbundling also renders comparison tools (such as online travel agencies or meta-search
engines much more difficult
to interpret, with no “like for like” comparison available.
Passengers need to consult multiple sources to get a good overview, which is complex and
time-consuming, and the opposite of what passengers would like: simplicity in booking. For
travel agents, this means also more workload and ultimately, a higher cost.
35
https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=8857
January 2020 | 60
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0087.png
Study on the current level of protection of air passenger rights in the EU | Final Report
In According to ACI-Europe, unreasonable restrictions on cabin baggage allowances by some
airlines undermine the passenger experience. The lack of recognised passenger rights in
relation to this issue has led to very restrictive and changing practices by some carriers, who
limit passengers to carrying a single piece of hand baggage on-board and charging for any
additional items, such as airport shopping. Additionally, the inconsistency of such airline
practices discourages passengers (including those not travelling with an airline with restrictive
rules) from shopping at airports, which impacts airports’ commercial revenues. In 2017,
commercial revenues accounted for 41% of total airport revenues on average.
Advance rescheduling of flights
There are no provisions in EU legislation regarding advance rescheduling of flights (more than
14 days before departure). A stakeholder commented that airlines may sometimes sell
convenient flight times but then change the schedule significantly more than 14 days prior to
departure, in which case passengers are not entitled to compensation. Refund of the ticket
price may not be a good option for many passengers as new tickets at comparatively short
notice before departure would likely be much more expensive.
Partial reimbursement
Most passengers do not know that they can get a partial reimbursement of their ticket for
their airport charges and government taxes if they do not take a flight. Airlines as a result
retain this revenue when a passenger cancels or misses a flight.
Contacting the airlines
Passenger representatives expressed the view that there are multiple barriers for passengers
when trying to contact an airline to submit a claim, including malfunctioning webforms,
unavailable email addresses, broken links to the claim forms, webforms not available in the
language of the consumer etc.
Helplines are also in most cases overpriced causing a high detriment to consumers. The
pending proposal for a Directive on better enforcement and modernisation of EU consumer
protection rules - a new deal for consumers
(‘Omnibus proposal
36
’) might include an
amendment preventing airlines to charge more that the basic rate for the phone calls.
For PRM specifically, not all travel agent websites allow PRM to indicate a disability at the time
of booking, rendering the pre-notification of the airline cumbersome.
During travel
Eurobarometer findings show that more than one quarter of air travellers (28%) experienced
at least one disruption to their air travel in the past year: the most common was a departure
delay of two hours or more (15%), while 7% experienced delayed, lost or damaged luggage.
Just over one in twenty (6%) reported an arrival delay of three hours or more, and the same
proportion (6%) reported a flight cancellation. Just 1% say they were denied boarding due to
overbooking.
36
http://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-
rights/file-modernisation-of-consumer-protection-rules
January 2020 | 61
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0088.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Eurobarometer also highlighted that, respondents who have read, seen or heard information
about passenger rights are more likely to report at least one disruption, compared to those
who have not been exposed to this information (33% vs 24%).
Amongst respondents who had encountered disruption to their air travel in the last 12 months
53% say some form of remedial action was taken for the most significant disruption (covered
by EU legislation) they experienced. Food and drinks are the most common form of redress
(28%), followed by an alternative flight or other arrangements at no extra cost (18%), or
financial compensation for the disruption (14%). One in ten (10%) say they received
accommodation, while 8% were reimbursed for the cost of the ticket. Almost half (47%),
however, stated that they received nothing for the most significant disruption.
Eurobarometer adds that “when interpreting these results,
it is important to note that it is not
possible to know the circumstances under which remedial action was or was not taken, nor is
it possible to say whether the respondent specifically requested something or whether it was
given voluntarily by the transport
company”.
We note that, as enough airline staff (or groundhandling staff representing the airline) may
not be visible/available in the airport to assist passengers, airports can occasionally take on
the responsibility of taking care of passengers who have experienced disruption.
Results of a survey conducted by the European Court of Auditors
37
in 2017 shows that of the
10 core passenger rights, the most important one was the “right to receive alternative
transport in the event of long delays, cancellations
or denied boarding” with 42 % of people
putting it as their first choice. This was closely followed by “right to compensation in the event
of long delays, cancellations or denied boarding,” with 40 %. Almost equally important was the
right to assistance.
According to the new Eurobarometer survey 2019, a majority (53%) of air transport users
having experienced at least one disruption to their travel in the last 12 months (see above) say
that some form of remedial action was taken, most commonly food and drinks (28%), followed
by an alternative flight at no extra cost (18%) and financial compensation (14%). In other
modes, by comparison, less than half of travellers affected by disruption reported remedial
action was granted by the operators concerned (43% in rail and 38% in both coach and ship or
ferry services).
Thinking about the most significant of the air travel disruptions faced in the last 12 months,
the majority (54%) of air travellers say they were satisfied with the way it was handled, with
14% ‘very satisfied’. Just over four in ten (42%) were dissatisfied. While the percentage of
satisfied passengers is similar for ship or ferry (56%) services, it is lower for rail and coach
services (44 and 42%, respectively).
Sometimes high expectations
Some stakeholders highlighted that in some cases passengers could also have unrealistically
high expectations:
•
In the case of extreme weather events, the forecast end of the disruptive event can
remain unclear for all involved for some time. Passengers’ expectations
that airlines can
provide information on when the situation will change and they will be able to travel are
not realistic. The obligation to minimise disruption was sometimes felt as generating a
http://publications.europa.eu/webpub/eca/special-reports/passenger-rights-30-2018/en/
37
January 2020 | 62
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0089.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
conflict with the requirement that airlines carry passengers safely by some NEBs and
airlines.
In cases of mass disruption, where thousands of passengers can be affected, providing
care and assistance can also be a significant challenge even with contingency plans and
preparation. For instance, once hotel capacity is reached in an area, there is little that
airlines (or passengers directly for that matter) can do to mitigate the problem.
It can also be challenging to provide hotel accommodation for an entire aircraft full of
passengers without long waiting times in queues. This is neither desirable for the
passenger nor for the airline. Use of technology is seen as a way to help. However, in the
event of disruption, airline websites can occasionally be unable to cope with the spike in
activity as stranded passengers attempt to re-book, leading to passengers queuing for
hours in the airport to speak to an airline representative.
Level of airline compliance
As described earlier in this report, particularly in Chapter 2, airline compliance with APR
requirements is not full. Most passenger representatives believe that there is compliance, in
particular with regard to compensation, is limited with the application of extraordinary
circumstances being one of the main points of disagreement.
A northern Europe ECC indicated that, for Spanish airlines especially, it is difficult to get a
response actually dealing with the incident being reported. These airlines often do not
respond, or respond with a standard reply. The possibilities to contact these airlines are poor,
e.g. lack of email address or poor customer service. Airlines may also ask for additional
documents from consumers to in order to deal with the complaint (such as ID, bank
statement, etc.) which are not necessary to solve the complaint and were not needed to book
the service.
Airline compliance depends to an extent on the level of enforcement to encourage airline to
comply. Enforcement and therefore compliance differs among EU Member States. NEBs do
not always have enough resources and different rules apply in different Member States, which
undermines transparency and simplicity for passengers suffering from a disruption. Passenger
representatives also stated that the lack of enforcement powers or action by NEBs, allowed
airlines to take advantage and not be afraid to publicly state, for instance in several examples
of the mass-disruption situations (e.g. large programme of flight cancellations by Ryanair in
2017 and then again in 2018), that they would not compensate their consumers, even if such a
compensation was due based on APR rules.
After travel
An analysis of the Eurobarometer survey indicates that after a significant travel disruption,
across all modes of transport, more than eight in ten respondents (85%) report that they
would complain to someone. Two thirds (66%) say they would contact the transport company,
and this is by far the most mentioned option. Less than one in five (17%) would contact a
consumer association, while 9% would contact a national authority responsible for passenger
rights, 8% would contact a claims agency and 7% would contact a lawyer. A stakeholder
commented that high-profile disruption, such as the disruption caused by the Icelandic
volcano in 2010, helped focus some attention on the rights of passengers as there were a
number of high-profile cases.
Across all modes, respondents in Greece (19%), Cyprus (18%) and Portugal (17%) are the most
likely to say they would contact a national authority responsible for passenger rights. At the
January 2020 | 63
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0090.png
Study on the current level of protection of air passenger rights in the EU | Final Report
other end of the scale 5% in Germany, Sweden and Luxembourg say they would do this. Malta
(22%) is the only country where at least one in five say they would contact a claims agency,
followed by 18% in Denmark and 17% in Austria. This compares to 4% in Czechia and 3% in
Germany and Slovakia. Respondents in Austria, Belgium and Netherlands (all 7%) are the most
likely to say they would contact an out-of-court dispute resolution body if they experienced a
serious travel disruption.
The analysis of the latest Eurobarometer survey also indicates an issue with the way that
travel companies inform passengers of the possibility to complain (on all modes): respondents
who had experienced a travel disruption on at least one mode of transport were asked about
their level of satisfaction with the way the transport company informed them about
complaints procedures. Just over one third (37%) say they were satisfied, with 8% being ‘very
satisfied’ with the way they were informed.
The majority of respondents (55%), however,
were dissatisfied, with 26% ‘very dissatisfied‘.
Administrative burden and costs for passengers
Outcome of passenger complaints to airlines
In practice, it appears that although people stated in the Eurobarometer survey that they
would make a complaint, few had really done so, since the large majority of those who
experienced at least one travel disruption did not make an official complaint. More than one
quarter (26%) of the respondents who experienced at least one travel disruption say they
made an official complaint, with 23% complaining to the transport company, and 4% to the
national authority. The large majority (72%) did not make an official complaint, but
respondents who have read, heard or seen information on passenger rights are more likely to
have made a complaint than those who have not been exposed to this information (33% vs
22%). EPF stated that only 1/3 of passengers who are entitled to compensation actually file a
complaint which it considered to be still quite low.
The analysis of the latest Eurobarometer survey shows that there are still some significant
barriers to overcome for passengers to complain. As stated above, the vast majority of
travellers
–across
all modes- who experience a disruption do not complain, and state their
reasons as:
•
•
•
•
Useless to complain (45%);
The amount involved was too small (25%);
The complaint process was too cumbersome (16%);
Did not know how or where to complain (9%).
These numbers indicate that passengers do not believe that they will get a positive outcome
from complaining with their efforts too high compared to their (un)likely rewards. Nearly one
passenger in five expect the process to be cumbersome, something that passenger
representatives repeatedly highlighted, with airlines taking a long time to respond to
passengers (sometimes not providing an indication of the timeframe), or not providing a clear
explanation for claiming extraordinary circumstances.
EPF thought that this situation could be improved through extra awareness-raising campaigns,
through simplifying the procedures to file a complaint and through imposing stricter deadlines
on airlines to respond to passengers, in addition, to better enforcement.
About half of passengers are also rather pessimistic about the outcome of their claims,
although the results of the Eurobarometer survey displayed below would be seen as rather
January 2020 | 64
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0091.png
Study on the current level of protection of air passenger rights in the EU | Final Report
positive. They show that for those passengers who persevered and lodged a complaint to a
transport company (across all modes), more than half (55%) of all respondents say they were
satisfied by the way their complaint was dealt with
–
in fact one in five (20%) say they were
‘very satisfied. More than four in ten (44%) were dissatisfied, with 23% ‘very dissatisfied’
about the way their complaint was dealt with.
Interestingly, opinions have become more polarised since 2014, with decreases in the
proportions who are rather satisfied (-6 pp) or rather dissatisfied (-11 pp) and increases in the
proportions who are very satisfied (+10 pp) or very dissatisfied (+8 pp). Overall, respondents
are now more likely to be satisfied (+4 pp) and less likely to be dissatisfied (-3 pp) than they
were in 2014
38
. In addition, those who have read, heard or seen information about passenger
rights are more likely to be satisfied than those who have not (57% vs 52%).
It is not straightforward to find the exact amount of flight delay for a particular flight from
public sources if passengers want to check. In addition, airlines do not generally publish
performance indicators meaning that passengers are not able at the time of booking to make
an informed decision based on actual performance with respect to passenger rights, rather
than promises of level of service. In comparison, rail carriers are obliged to annually publish
the number and categories of received complaints, processed complaints, response time and
possible improvement actions undertaken.
As discussed in Chapter 5, NEBs rarely communicate between each other on the application of
extraordinary circumstances. It is also not possible for passengers to confirm if extraordinary
circumstances applied for a particular flight (and even if such a public database existed,
differing interpretations by NEBs would present a complication). As highlighted by the Court of
Auditors, there is no registry managed by the NEBs that would record delays or cancellations
of individual departures or numbers of cases received per carrier or per departure.
What remains an issue is that passengers have no possibility to know how their claims will be
handled by airlines: in most cases, they do not know how long the process is going to take, or
what they steps are. They also do not know if the airline is seen by the authorities as handling
complaints well or complying with the law sufficiently well. Claim agencies publish airline
rankings based on their understanding of airlines behaviour in this area, but it should not be
left to them to do so, on a fairly un-transparent basis, but rather to authorities to inform
consumers of the quality of service delivered by the airlines over which they maintain
oversight.
Administrative burden for passengers and costs incurred
What is not displayed in the results above is the length of the process and knowledge that
passengers need to acquire in order to claim against the airlines. The process is lengthy,
particularly for “first-time claimants” and can discourage many customers before
or during the
process. We present below various steps required by the process. These can be additive or
not, depending on the choices of claim channel made by the passenger.
We have estimated the amount of elapsed time needed by passengers to interact with the
various entities, but have not been able to make financial estimates of the administrative
burden incurred by passengers.
38
Although please note that the wording of the question between the 2014 and 2019 survey has
changed which may explain the variation in results to an extent.
January 2020 | 65
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0092.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 3.4: Process, time and costs involved for passengers claiming
Process
Passenger to research
their rights
Difficulty
Easy (at face value)
to difficult (in reality),
especially related to
issues open to
interpretation
Easy to moderate, as
most airlines have a
web form. If
passenger does not
or cannot use this or
does not fit the pre-
established
categories, then it
can be more difficult
Easy to difficult, as
some passengers
may not have kept all
relevant information
Easy
Time
From a few
hours to a few
weeks
Costs
None, but complexity for
passenger to do this so by
themselves, conflicting
information
None if passenger does it
themselves. Requires
passenger to draft
email/letter to airline stating
all the facts clearly
Passenger to contact the
airline
From a few
hours to a few
days
Passenger to provide
supporting evidence to
airline
Passenger to wait for
airline’s initial response
From a few
hours to a few
weeks
Could be up to 6
weeks, although
this is not
binding
From a few
hours to a few
days
None if passenger does it
themselves
None if passenger contacted
the airline themselves
Passenger to assess the
airline’s initial response
Moderate to difficult
None, but complexity for
passenger to do this so by
themselves, as they have no
access to airline supporting
evidence
None, but complexity for
passenger to do this so by
themselves, as they have to
justify their position
better/differently
None if passenger does it
themselves
Passenger to contact the
airline again
Moderate
From a few
hours to a few
days
Passenger to identify the
relevant NEB
Moderate (info
available online but
not always up to
date, and cross-
border issues)
Easy to moderate, as
most NEBs have a
web form, or
passenger can use
the European form. If
passenger does not
want to use this or
does not fit the pre-
established
categories, then it
can be more difficult
From a few
hours to a few
days
Passenger to contact the
NEB
From a few
hours to a few
days
None if passenger does it
themselves. Requires
passenger to draft
email/letter to NEB stating all
the facts clearly
January 2020 | 66
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0093.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Process
Passenger to provide
supporting evidence to
NEB
Difficulty
Easy to difficult, as
some passengers
may not have kept all
relevant information.
Easy if passenger has
already gathered this
for the airline
Easy
Time
From a few
hours to a few
weeks
Costs
None if passenger does it
themselves
Passenger to wait for
NEB response
Passenger to understand
that NEB decision is non-
binding or may not be
for individual passengers
Passenger to identify the
relevant ECC
Passenger to contact the
relevant ECC
Passenger to wait for
ECC response
Passenger to identify the
relevant ADR
Passenger to contact an
ADR
Between 3-6
months on
average
From a few
hours to a few
days
From a few days
to a few weeks
From a few
hours to a few
days
Unclear, less
than 1 month
From a few
hours to a few
days
From a few
hours to a few
days
None
Moderate
None if passenger contacted
the NEB themselves
Moderate
Easy
None
None
Easy
Moderate
None
None if passenger does it
themselves
Some ADRs are not free and
will require payment of a fee
Easy to moderate,
assuming that there
is an ADR, which is
far from being
certain
Easy
Passenger to wait for
ADR response
Passenger to understand
that ADR decision is non-
binding
Passenger to identify a
claim agency
Passenger to contact the
claim agency
Between 1-3
months on
average
From a few
hours to a few
days
A few hours
From a few
hours to a few
days
From a few
hours to a few
days
None
Moderate
None if passenger contacted
the ADR themselves
None if passenger does it
themselves
None for contacting but costs
will be incurred usually on a
“no win, no fee” basis as soon
as T&Cs are agreed
None if passenger does it
themselves
Easy
Easy
Passenger to provide
supporting evidence to
claim agency
Easy to moderate, as
claim agency will
guide passengers
through the process
where possible
Easy
Passenger to wait for
claim agency outcome
Unclear, could
be around 1-3
None
January 2020 | 67
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0094.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Process
Difficulty
Time
months on
average
Costs
Passenger to go to court
(via claim agency)
Easy
Unclear, could
be around 1-3
months on
average
From a few days
to a few weeks
From a few
weeks to a few
months
Additional costs will be
incurred usually on a “no win,
no
fee” basis
None if passenger does it
themselves
Legal costs to be incurred:
court fee, mandatory
appointment of lawyer in
some cases, etc.
Passenger to identify
relevant court (NOT via
claim agency)
Passenger to go to court
Difficult
Difficult and risky (In
practice, passengers
will never decide to
go to court if the
costs of the
procedure might
exceed the cost of
the claim)
Source: Steer analysis
The entire claim/complaint procedure should in principle be a written procedure not requiring
legal representation, including in court unless the airline disagrees with the claim. In this case,
there is always the possibility that the court will call for a hearing, resulting in most passengers
needing legal assistance which would significantly raise the costs of the court procedures.
Moreover, even if the case is won by the passenger in court, if the airline still does not pay
what the court has ruled on (such as compensation/reimbursement, etc.), the passenger will
need to follow an additional enforcement procedure which can also be costly, lengthy and
complicated especially if in another country than that of residence of the passenger. Another
barrier is language, as not all passengers are able to speak the language in which proceedings
may be undertaken, if not in their country of residence.
The table above shows the complexity of the process and the number of steps that a
passenger may have to go through. Also note that, whilst for passengers repeating the process
it will be faster and easier to navigate, the process will change depending on the countries
39
involved, meaning that the advantages faced by a well-seasoned claimant will not be as strong
if they claim in another country.
In addition to being cumbersome, the process is not fast, particularly where passengers
contact the NEBs (because of the volumes of complaints received). An issue for passengers
with this long process, is that in the meantime, they might lose their right to launch a court
case, since in some countries, the statute of limitations can be quite short (e.g. one year),
whereas in others they can be really long. Due to different time limitations to bring a claim,
customers might also be left with no choice than to escalate a claim abroad or lose the
opportunity to bring the claim to court completely.
Because of the multiple obstacles presented above, many passengers have now started to use
claim agencies more and more often. They are prepared to pay high fees (even 25-50% of their
39
According to Rehder case (C-204/08), the courts which may be seized are the courts of the country of
departure or of the country of arrival so not necessarily the place where disruption occurred.
January 2020 | 68
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0095.png
Study on the current level of protection of air passenger rights in the EU | Final Report
compensation) not to go through all the difficulties (actual or perceived) related to enforcing
their rights themselves. These companies attract passengers (who often do not even know
that free alternatives exist) through very active and prominent marketing. In a well-functioning
passenger rights enforcement system, this service would not be needed
–
apart for time-poor
customers.
Automated and automatic compensation
Automatic compensation is payment of compensation to passengers who experienced a travel
disruption without any intervention (i.e. claim) by the passenger. In the rail industry, some
operators offer automatic compensation to their customers in the case of delays (although
note that there are some exceptions, and compensation rules are different when there is
engineering work or strikes happening). This can take various forms:
•
•
On a train network, smart card holders receive automatic compensation if they
experience a qualifying delay;
On a second train network, passengers who have booked an advance ticket through the
train operator website receive automatic compensation to the card that was used to
purchase the ticket if the relevant journey is subject to a qualifying delay;
On another train network, passengers who have booked an advance ticket and registered
their details.
•
Passenger representatives are calling for automatic compensation, whilst airlines commented
that there exist several complications with automatic compensation, including not being
allowed under credit card rules, airlines not having passengers contact details, and
compensation entitlements being limited to individual eligible passengers. Experience from
other rail suggests that it may be possible to overcome some of these complications but this is
not something that we have checked.
Automated compensation is smooth process and payment of compensation by the airlines to
the passengers who experienced a travel disruption after passengers have contacted the
airline to submit a claim.
The Table below provides a high-level overview of the differences between the two systems.
Table 3.5: High-level comparison of automatic and automated compensation
Automatic
Basis
Passengers covered
Possibility of inclusion of
extraordinary
circumstances
Impacts for passengers
and industry
Occurrence-based
100% of passengers affected by
disruption
Yes
Automated
Claim-based
As of now
Yes
High benefits for passengers
affected by disruption: passengers
getting due compensation.
Overall possible increase in ticket
prices as heavy cost for industry.
Very significant costs
Easier system than currently. With
the right awareness campaign run
alongside its introduction, could
result in high benefits for
passengers
Significant costs
Possibly less staff required to
handle individual claims
Impacts for airlines
January 2020 | 69
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0096.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Automatic
Impacts for NEBs
In most cases, not needed anymore
for individual passenger redress
(although if extraordinary
circumstances exemptions remain,
could require case-by-case
assessment)
In most cases, not needed anymore
for individual passenger redress
(although if extraordinary
circumstances exemptions remain,
could require case-by-case
assessment)
In most cases, not needed anymore
(although if extraordinary
circumstances exemptions remain,
could require case-by-case
assessment)
Automated
Reduction in the need for NEBs for
individual passenger redress
(although if extraordinary
circumstances exemptions remain,
could require case-by-case
assessment)
Reduction in the need for
ADRs/ECCs/Courts for individual
passenger redress (although if
extraordinary circumstances
exemptions remain, could require
case-by-case assessment)
Reduction in the need for claim
agencies for individual passenger
redress (although if extraordinary
circumstances exemptions remain,
could require case-by-case
assessment)
Impacts for
ADR/ECCs/Courts
Impacts for claim
agencies
Source: Steer analysis
January 2020 | 70
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0097.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Passengers with disabilities or reduced mobility
Overview
Access to air transport for persons with disabilities or reduced mobility (PRM) is a legitimate
right that must be applicable without discrimination. The European Union legislated in 2006 to
enshrine this right in EU law.
The scope of the PRM Regulation extends not only to disabled air passengers but also air
passengers with reduced mobility
40
. The definition given in the Regulation is wide as it includes
people with temporary or age-related reduced mobility. Regulation 965/2012
41
makes a
distinction between PRMs and unaccompanied minors (UM), who are therefore not in scope
for PRM assistance.
Regulation 1107/2006 (the PRM Regulation) divides responsibilities and duties between
airports and airlines, whereas by comparison in the United States, US DoT 14 CFR Part 382
42
identifies the air carrier as sole responsible for providing accessibility services to people with
reduced mobility. In Europe, airline assistance requirements are limited to assistance on board
the aircraft. Responsibility for assistance on the ground, on departure, arrival or transit is
placed upon the airport managing body.
From an operational point of view, this division in responsibilities makes sense, less so though
from a passenger point of view, as an air passenger generally does not interact directly with an
airport but with the airline with which they have made their booking. Therefore, in order to
ensure that the assistance of the PRM can be carried out adequately, pre-notification of the
airline by the PRM is required at the time of booking as well as the adequate sharing of
information by the airline with the airports concerned.
Assistance costs related to services provided on board by airlines are integrated into their
operating costs. Assistance costs related to services provided on the ground are paid by all air
passengers through a PRM service charge (which is levied as part of their airport charges and
passed-through to the price of their ticket) which must cover the costs of the service and be
accounted separately from other airport charges.
The PRM Regulation applies to all EU carriers whose flights depart from and arrive at a
European airport. The law also applies to EU carriers departing to or arriving from airports
located outside the EU. Non-EU carriers must also comply with Regulation 1107/2006 for all
flights from a European airport (the Regulation does not apply for non-EU
carrier’s flight from
non-EU airport to EU airport). Note from the table below that the Regulation covers flights,
and not journey, so a passenger who would fly London-Hong Kong-Sydney on an EU carrier
would be covered by the scope of the Regulation from London to Sydney , whilst the same
passenger would only be covered until Hong Kong if flying on a non-EU airline.
40
A PRM passenger is defined in Article 2 as meaning any person whose mobility when using transport
is reduced due to any physical disability (sensory or locomotive, permanent or temporary), intellectual
disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate
attention and adaptation to his or her particular needs of the service made available to all passengers.
41
Regulation (965/2012) on defining technical requirements and administrative procedures concerning
air traffic operations
42
https://www.transportation.gov/sites/dot.dev/files/docs/Part%20382-2008_0.pdf
January 2020 | 71
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0098.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 3.6: Applicability of Regulation 1107/2006
EU carrier
Flights within the EU
Flights from an EU airport
Flights to an EU airport
Other flights
Source: Steer analysis
Non-EU carrier
Regulation 1107/2006 applies
Regulation 1107/2006 applies
Regulation 1107/2006 does
NOT apply
Regulation 1107/2006 does
NOT apply
Regulation 1107/2006 applies
Regulation 1107/2006 applies
Regulation 1107/2006 applies
Regulation 1107/2006 applies
Airlines are prohibited from denying carriage to PRMs on the basis of their disability, except in
cases where:
•
•
The size of the aircraft or its door makes embarking or air transport of a PRM passenger
physically impossible; and
In case of the PRM in question not being able to meet relevant safety requirements.
Whilst this rule may appear clear on paper, in practice, it continues to generate many issues
which have been highlighted by PRM representatives and some NEBs. Denied-boarding
appears to be one of the most crucial issues for the PRMs involved because denied-boarding
happens in many instance at the gate, when it is usually too late to sort the problem before
the departure of the plane, whilst some travel (to the airport for instance) has already taken
place and many costs have been incurred (accessible travel to the airport, accessible
accommodation booked, accessible car rental for instance, etc.).
PRMs
representatives also highlighted that denied boarding justified for “safety reasons”
could be interpreted as sometimes arbitrary by PRMs. The issue of safety related to the
carriage of Special Categories of Passengers (SCP) has been examined by EASA
43
but
amendments made remain relatively open for interpretation. In comparison, the UK
Department for Transport publishes specific rules including when a PRM can be considered for
aviation purposes to look after themselves (or may need to travel with a safety assistant) that,
according to the UK NEB, removes much ambiguity and bring certainty to all parties involved
(PRMs, passengers, etc.). In the US and Canada, where a travel assistant is required by the
airline, their cost of travel is borne by the airline, whilst this is not the case in Europe.
The situation in Europe on the definition of safety of carriage of PRMs remains an airline
choice, and EASA indicated that “previous studies have shown that airline policies whether an
SCP should travel accompanied or
not differ across operators and Member States”. In practice,
whilst some airlines’ PRM policies are clear, detailed and easy to find, others lack information
which leaves PRMs to feel that travel may be an (expensive) gamble rather than a guaranteed
right.
Overview of the state of PRM assistance
Approximately 10 % of the EU population lives with some type of disability
44
. Stakeholders
have provided limited quantitative data into the level of compliance of airlines and airports
with Regulation 1107/2006. All relevant stakeholders agreed, however, that the number of
43
44
Decision 2016/004/R
https://europa.eu/rapid/press-release_IP-07-1173_en.htm
January 2020 | 72
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0099.png
Study on the current level of protection of air passenger rights in the EU | Final Report
PRMs is increasing strongly, representing an increasingly large proportion of total passengers.
Reasons stated include:
•
•
•
A wide scope of application, from people with disabilities (including temporary) to less
mobile people;
An increasingly ageing European population with disposable income and a higher
propensity to fly that is more likely to require assistance;
An increasing number of people knowing that PRM assistance is available, feeling
confident enough to use it and, as a result, more disabled and less mobile people than
ever are travelling by air;
Some specific routes were also highlighted as having higher share of requests for PRM
assistance than others
45
.
•
Figure 3.1 shows the proportion of PRMs at 14 airports (airport names redacted for
confidentiality purposes) that provided relevant data, 8 of which included a time series of its
evolution. At all, except one, of the airports that provided more than one datapoint, the
proportion of PRM passengers has increased over the period, bearing in mind that passenger
traffic has also increased at a rate of 4% annually from 2011 to 2017.
Additionally, the figure indicates that the proportion of PRM passengers at airports ranged
from below 0.2% to 1.0% of overall passenger traffic in 2018. Factors influencing this
proportion may include the mix of airlines serving the airport (some LCCs report a lower
proportion of PRM passengers than other carriers), as well as wider cultural factors:
•
•
In France, the proportion of PRMs travelling by air was estimated to be 0.63% of the total
air passenger population travelling in 2016;
In the UK, we estimated the proportion of PRMs travelling by air was to 1.27% in 2018,
based on UK CAA statistics showing that 3.7 million requests for assistance were made at
UK airports in 2018.
45
According to a CGEDD report (Prise en compte par le transport aérien du règlement européen
n°1107/2006 concernant les droits des personnes handicapées et à mobilité réduite) from Paris CDG
airport routes to India or North Africa.
January 2020 | 73
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0100.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 3.1: Proportion of PRM passengers at reporting airports (2011-2018)
1.0%
0.8%
Proportion of PRMs
0.6%
0.4%
0.2%
0.0%
2011
2012
2013
2014
2015
2016
2017
2018
Source: Stakeholder consultation. Note: airport names are confidential. Some airports only reported data for 2018
(as represented by a diamond), others were able to provide time-series (as represented by a line)
Figure 3.2 shows the weighted average proportion of PRMs reported by airlines. In line with
the trend reported by airports, the proportion of PRMs increased from under 1% in 2015 to
1.25% in 2018, which is still low compared to the 10% of PRMs among the EU population. The
reporting airlines and reporting airports in the two figures do not correspond directly, so the
resulting PRM proportions are different, however the trends are common to both and
highlight the increasing demand for PRM services and pressure on airports and airlines to
provide these.
Figure 3.2: Proportion of PRM passengers reported by airlines (2015-2018)
1.4%
1.2%
160
140
Proportion of PRM
1.0%
0.8%
0.6%
120
100
80
1.25%
0.93%
0.97%
1.03%
60
40
0.4%
0.2%
0.0%
20
0
2015
% PRM
2016
Index of PRM
2017
2018
Index of Total Passengers
Source: Stakeholder consultation. Note: no data was available pre-2015
Passengers (Index 2015=100)
January 2020 | 74
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0101.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The increase in PRM demand is not homogenously generated by all types of PRMs. The
industry uses a system of classification to reflect PRM needs which is briefly described below:
•
WCHR (“wheelchair ramp”): A passenger with a walking disability who requires assistance
to the aircraft only. The passenger requires a wheelchair or similar aid before
embarkation or after disembarkation, requires assistance in the airport terminal to/from
the gate or exit, can manage steps and use an apron passenger bus unaided and does not
need assistance in the cabin;
WCHS (“wheelchair step”): A passenger with very restricted mobility who requires
assistance to the aircraft door. The passenger requires cannot manage steps unaided and
is unable to use an apron passenger vehicle, but does not, need assistance in the aircraft
cabin;
WCHC (“wheelchair cabin seat”): A passenger with very restricted mobility who requires
assistance to the aircraft seat. The passenger is unable to walk but can use a passenger
seat with the backrest in the upright position. The passenger cannot move unaided (e.g.
on account of paraplegia or advanced multiple sclerosis for instance);
BLND: A blind passenger
DEAF/BLND: blind and deaf passenger who can only travel with an assistant.
DPNA (“disabled person needing assistance”): All other passengers requiring special
assistance, including passengers with an intellectual or developmental disability
•
•
•
•
•
As a rule, the international air transport of PRM passengers must not be conditional to
presenting a medical certificate. Neither carrier nor airport operator is authorised to require a
PRM passenger to have a medical certificate.
PRM representatives commented that IATA codes were very limited and that the value was for
the airline to properly record and communicate to the relevant parties (such as other airlines,
airports, etc.) the additional information that had been communicated by the PRM at the time
of booking. Another issue highlighted was the fact that airlines use different systems for
notifying assistance at airports.
Stakeholders suggested that the increase in the proportion of PRM passengers has been
driven mainly by increases in codes not related to wheelchair users.
Damage to mobility devices
Article 12 of the PRM regulation requires that where mobility equipment or assistive devices
are lost or damaged whilst being handled at the airport or transported on board aircraft, the
passenger to whom the equipment belongs shall be compensated, in accordance with rules of
international, Community and national law. The rules that apply in that case are those of the
Montreal convention and which calculates compensation for damaged equipment by weight
rather than value.
This creates a significant issue for PRM rights, as compensation for damaged equipment may
be limited to around €1,400, when the price of some mobility equipment may be 10 or more
times more expensive and/or requiring specific customisation (in some cases, mobility
equipment is made to measure).
A question has been raised on whether carriers should provide compensation close to the
actual value of the damaged good. For comparison, the US Air Carrier Access Act (ACAA)
46
46
https://www.transportation.gov/airconsumer/passengers-disabilities
January 2020 | 75
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0102.png
Study on the current level of protection of air passenger rights in the EU | Final Report
states that for domestic flights, compensation for damaged equipment “shall be the original
purchase price of the device.” Although many EU carriers claim to go above the liability limits,
there are no rules in Europe for them to strictly do so. It is also important to note that whilst
some PRMs may be able to obtain travel insurance towards their mobility equipment, this may
not necessarily be obtainable for all equipment or at affordable premiums. The question of
what happens to PRM when literally stranded at the airport if their mobility equipment has
been damaged, is also an acute one for the passenger in question. No specific information on
this issue could be gathered for the study, nor could we understand the scale of the issue
related to damage to mobility equipment, as very few stakeholders (NEB, airport, PRM
representative) appear to have reliable or publicly available statistics on the issue.
•
The PRM NEB for the UK stated during an interview that “it could not remember the last
time that damage to
mobility equipment happened in the UK”. However, this could also
be because of no reporting by an impacted PRM.
PRM representatives mentioned that reduction in the damage to mobility equipment would
require better awareness and training of staff involved (airport, airline, PRM service providers,
as well as groundhandlers).
Provision of PRM services and quality of service
Whilst some airports provide PRM assistance themselves, some have chosen to outsource this
service, thereby making the number of parties, and the chain of responsibility and liability
particularly complex. PRM associations state that “it is far from uncommon for PRM to
experience disservice while boarding or deplaning the aircraft due to communication issues
between air carriers and airport
managing bodies”.
All airports responding to the questionnaire have set up quality standards for the provision of
PRM assistance. These standards are usually based on the ECAC Doc. 30 guidance
47
, or specific
guidance from the relevant NEB (NEBs indicated that they usually rely on ECAC Doc 30
recommendations
–
see Chapter 5). Airports in Spain and Italy indicated that the NEB takes the
lead in setting the standards (which may include consultation with disability associations),
while other airports explained that they set standards with the involvement of the NEB and
other stakeholders, including airport users and disability associations. Most airports publish
these standards or performance targets on their websites, but not all (e.g. in Spain, where
they are published by the NEB).
The approach to monitoring of the service standards varies, with some airports doing so more
proactively than others. Most responding airports indicated there is ongoing monitoring and
regular reviews of performance with airlines, groundhandlers and service providers take place.
At others monitoring can be a bit more reactive, relying on passenger surveys, complaints
received and NEB audits.
For airports, the key to the quality of the PRM service provided is timely pre-notification.
Airports stated that the system in place works well, however its use needs to be improved.
Passengers ought to notify airlines in advance of their assistance needs (and airlines should
provide them with the means for doing so), while airlines should ensure that they transmit this
information to the airport in a timely manner, particularly for arriving flights, and using the
47
https://www.ecac-
ceac.org/about?p_p_id=101&p_p_lifecycle=0&p_p_state=maximized&p_p_mode=view&_101_struts
_action=%2Fasset_publisher%2Fview_content&_101_assetEntryId=526990&_101_type=document
January 2020 | 76
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0103.png
Study on the current level of protection of air passenger rights in the EU | Final Report
dedicated systems rather than by email. Two of the responding airports indicated that they
have tied PRM charges for airlines to the pre-notification period, which has helped improve
performance from the airlines and assists with efficient and effective deployment of services.
ACI-Europe
stated that NEBs’ role in in guaranteeing an effective transmission of information
(e.g. a correct, timely pre-notification) should be strengthened.
ACI-Europe also highlighted that the needs for assistance on the ground is often linked to the
layout of airport terminals and the walking distances involved. As a result of this, passengers
may need assistance at departure and not on arrival or during connections. For this reason, it
considers that passengers should be able to request the assistance needed by flight segment
and airlines ought to pre-notify airports on this basis. While this may help with the allocation
of airport resources and contribute towards a better quality of service, we note that
passengers should not be expected
by default
to know the layout of the departing, arriving or
connecting airports.
Obtaining quality of service statistics on PRM service provision has been particularly difficult in
this study, as few airports, airlines or NEBs publish statistics on quality of service. Only the UK
NEB requires airports and airlines to publish
48
statistics and information on PRM quality of
service. The 2019 report shows some interesting results for UK airports
–
however, whilst
these are encouraging, they cannot be extrapolated to represent the entire European situation
because:
•
•
•
There is a long-established culture and national legislative framework in the UK: this may
not be the case in the rest of Europe;
Awareness of PRM rights and services may be higher in the UK; and
The UK NEB may more proactively supervise PRM services.
The 2019 UK report on PRM provision shows that:
•
The number of requests for assistance has been increasing sharply: there were a record
number of 3.7 million requests for assistance at UK airports in the latest year
–
since 2014
the number of passengers assisted increased by 49% while overall passenger numbers
increased by 25%;
14 airports have been rated 'very good'. A further 16 airports were rated 'good'. Four
airports that were classified as 'very good
49
' last year received 'good' ratings this year,
while an airport was classified as 'needing improvement' (although this was an improved
rating from 'poor' in the previous two years). For the first time since 2016, no airports
were classified as 'poor';
•
Other NEBs commented on an improvement of the quality of service but only in qualitative
terms
–
when they knew or expressed an opinion:
•
•
Improvements: 50%
No response: 50%
NEBs highlighted the following issues related to quality of service of PRM services:
•
•
48
49
Challenging situation due to a growing number of PRM passengers;
Issues with pre-notification and transmission of information;
http://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=9155
To achieve a 'very good' classification, airports must provide high quality support on the day of travel
as well as keeping in regular contact and consultation with its users
January 2020 | 77
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0104.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
•
Low rates of pre-notification in some countries;
Airports and airlines struggling to deal with DPNA codes (for example dementia or
autism); and
Abuse of PRM services (i.e. passengers who require the system for convenience rather
than proper need).
An analysis of the quality of services through a review of media reports highlighted some key
themes and issues but cannot be used as a good proxy for overall quality of service analysis as
the media tends to report disproportionally on what goes badly rather than the “average”
situation or actual examples of good practice. However, media reports remain useful to allow
all stakeholders and the general public to understand the practical impacts that failures in the
chain of customer care may have on PRMs or other passengers.
In addition to the analysis above, we have consulted in this study with PRM representatives
and ensured that the questionnaire for PRM representatives was accessible. Through EDF it
has been sent to multiple PRM associations across Europe. The three responses obtained
highlighted that:
•
In
general, European airports comply “quite well” with the European legislation on PRM,
but the issues remain with the details and the exact provision of service, at the right time,
without gaps in the chain of services or service providers;
Service quality
is not harmonised across airports and can “vary a lot”;
Where airports outsource the provision of PRM services, this is usually done through a
competitive call for tender. PRM representatives thought that the choice of the cheapest
tender was not helpful as service quality may suffer as a result;
Wheelchair provisions at airports remain an issue as there is no rule on the type of
wheelchair to be used. PRM representatives explained that leaving the choice of
wheelchair to airports was not adequate.
Specific concerns on damage to mobility equipment as explained above;
There are concerns specifically regarding assistance dogs (such as discriminatory practices
such as requiring 7 days’ notice before a dog can fly, restricting the number of dogs
allowed on board, not allowing dogs to travel if there is an intermediary stop en route);
When embarkation is refused, most airlines will provide refunds or re-routing in line with
the requirements of Article 8 of Regulation 261/2004; and
Compared to railway stations, PRM representatives stated that quality of service was
highest at airports, because of the presence of airport staff at all times.
•
•
•
•
•
•
•
The outcomes of Eurobarometer 2019 were also taken into consideration as they provided
some high-level findings on PRM satisfaction, although just over 8% of Eurobarometer
respondents have ever requested assistance for themselves or another person with a disability
or reduced mobility when travelling, with no notable change since 2014.
•
On requesting assistance:
–
Respondents in Denmark and the UK are the most likely to say they requested this
kind of assistance for a journey by air;
–
Amongst those who requested assistance, 48% gave notice at the time of booking,
19% gave notice after booking but well in advance of the departure, while 31% only
requested assistance at the time of departure (this is for all modes, not just air, break-
down for air not available).
On overall satisfaction:
•
January 2020 | 78
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0105.png
Study on the current level of protection of air passenger rights in the EU | Final Report
–
A large majority (81%) of those who requested assistance say they were satisfied with
the way their request(s) for assistance was or were dealt with by the transport
company
50
. In fact, almost half (47%) say they were ‘very satisfied’. Almost one in five
(18%)
were dissatisfied, with 7% ‘very dissatisfied’ (this is for all modes, not just
air,
break-down for air not available).
We suggest that the sample size of the Eurobarometer does not allow to draw strong findings
on the quality of service provided to PRMs travelling by air. Examining the PRM complaints
received is another source of understanding of the state of PRM passenger rights.
PRM complaints
Article 15 of the PRM Regulation states that “a disabled
person or person with reduced
mobility who considers that Regulation 1107/2006 was infringed may bring the matter to the
attention of the managing body of the airport or to the attention of the air carrier concerned,
as the case may be”. Because the Regulation divides roles between airport managing bodies
and air carriers, the PRM needs to determine first hand who is responsible for the alleged
infringement and then contact the appropriate entity.
This incredibly complicated situation creates a legal loophole, which may result in additional
difficulties at the expense of PRMs. If the disabled person or person with reduced mobility
cannot obtain a satisfactory resolution of their complaint in such a way, complaints may be
made to National Enforcement Bodies, or to any other competent body designated by a
Member State, about an alleged infringement of Regulation 1007/2006.
PRM representatives also explained that they tend to receive complaints from PRM
passengers regarding the airlines, rather than the airports. They suggested two possible
explanations about this
–
which we have not been able to further evidence through the study
due to a lack of data:
•
•
That airlines or some airlines (such as some non-EU carriers and some EU low-cost
airlines) comply less than airports; or
That passengers, who largely request PRM assistance through the airline at the time of
booking, think that all complaints
are under the airline’s responsibility.
Figure 3.3 below presents the relationship between the growth in total passengers and PRMs
(as above, indicating that the proportion of PRMs is increasing), alongside the relationship
between the growth in PRM complaints received by NEBs and the growth of PRMs. At a high
level, the figure shows that PRM complaints have increased in line with PRMs i.e. the
complaint rate has remained stable.
50
No distinction of airport or airline was provided to respondents.
January 2020 | 79
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0106.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 3.3: Index of PRM complaints received by NEBs, PRMs reported by airlines and total passengers (2015-
2018)
160
140
Index (2015=100)
120
100
80
60
40
2015
2016
2017
2018
PRM complaints
PRMs
Total passengers
Source: Stakeholder consultation. Note that no data pre-2015 was available
The fact that the PRM complaint rate has remained stable may indicate that the level of
airport and airline compliance was unchanged across the period, and that operational
stakeholders were able to cope with the increase in demand for PRM services, without a
significant deterioration (nor improvement) in the service provided.
At the same time, Regulation 1007/2006 does not provide for standard compensation in the
same way that Regulation 261/2004 does, and as a result passengers may not be motivated to
submit a complaint (while those who may find it difficult to do so in some Member States, as it
is not straightforward to find the competent NEB’s contact details
- see Chapter 5). It is not
clear then to what extent the constant complaint rate indicates an unchanged level of
compliance by airports and airlines or is the result of underreporting stemming from
insufficient ways to record PRMs’ experience and the structure of Regulation 1107/2006.
In any case,
as highlighted by EDF and the UK CAA’s airport accessibility report
51
, although the
issues may not be significant in volume, the impact on individuals when things do go wrong
can be extremely significant.
Unlike with Regulation 261/2004 which relies on ex-post complaints being lodged, most
1107/2006 NEBs have stated that they proactively oversee the provision of PRM services by
undertaking audits of airports (see Chapter 5). However, and as highlighted in the mid-term
evaluation of the PRM Regulation
52
, there do not existing effective ways for capturing (the
subjective) experience of PRMs as to whether the services received were satisfactory, with
51
52
http://publicapps.caa.co.uk/docs/33/20180711%20CAP1679%20FINAL.pdf
https://ec.europa.eu/transport/sites/transport/files/themes/passengers/studies/doc/2010_06_evaluati
on_regulation_1107-2006.pdf
January 2020 | 80
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0107.png
Study on the current level of protection of air passenger rights in the EU | Final Report
most inspections of airports and airlines on PRM focused on checks of systems and
procedures.
Enforcement and sanctions
The table below displays the state of PRM Regulation enforcement and sanctions across the
EU.
Table 3.7: PRM Regulation enforcement and sanctions
State
BE
Belgium
Enforcement
The NEB undertakes annual airport
inspections to monitor compliance
with Regulation 1107/2006.
In cases of non-compliance, the NEB
will issue letters, organise meetings
and issue prescriptions, which
define improvement measures.
The NEB can initiate penal
proceedings.
Compliance with Regulation
1107/2006 is monitored through
audits and inspections. Due to low
number of complaints, the NEB
does not make administrative
decisions.
The NEB issues warnings to inform
airlines in the first instance of
infringements.
N/a
The NEB can issue a direction
against the airline/airport. Failure
to comply with the direction, is an
offence under the Aviation Act
2001.
The NEB will impose a fine if two
reminders are ignored by the
airline/airport.
The NEB undertakes system-level
enforcement of Regulation
1107/2006 and can impose fines.
In the case of infringement, the NEB
gives the airline 2 months to
provide necessary information and
then makes a non-binding decision.
The NEB undertakes airport audits
for Regulation 1107/2006 to
monitor PRM standards.
Sanctions
The NEB can write a report to the
prosecutor who may issue a criminal or
administrative fine.
The maximum legal limit for sanctions is
10,000 BGN (5,000 EUR).
No sanctions have been issued yet.
The maximum legal limit for sanctions is
1,000,000 CZK (35,400 EUR).
No sanctions have been issued yet.
Sanctions can be imposed under the
Danish Civil Act on Aviation and the
Executive Order.
No sanctions have been issued yet.
Sanctions can be imposed under the
national law of administrative offences.
The maximum legal limit is 30,000 EUR.
N/a
The maximum legal limit it as per
Aviation Act 2001.
BG
Bulgaria
CZ
Czech
Republic
DK
Denmark
DE
EE
Germany
Estonia
IE
Ireland
EL
Greece
As per Aviation Act 1815/1998,
sanctions can vary between 500 to
250,000 EUR.
No sanctions have been issued yet.
The legal limits for sanctions can vary
between 4,500 to 70,000 EUR per
infringement.
As per the Civil Aviation Code.
One sanction has been issued, with the
amount of 22,500 EUR.
Sanctions vary between 20,000 to 50,00
HRK (2,700 to 6,700 EUR).
No sanctions have been issued yet.
ES
Spain
FR
France
HR
Croatia
January 2020 | 81
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0108.png
Study on the current level of protection of air passenger rights in the EU | Final Report
State
IT
Italy
Enforcement
The NEB has airport quality
investigators to monitor PRM
standards.
Sanctions
The maximum limit for sanctions is
120,000 EUR.
The Minister of Communications and
Works can impose a fine of up to 8,000
EUR or a sum equal to 10% of the
company’s annual turnover.
No sanctions have been issued yet.
N/a
Sanctioning process is complex due to
legal context; the maximum value is
8,300 EUR (in the case of repeated
infringement).
N/a
CY
Cyprus
The NEB conducts investigations to
monitor PRM standards.
LV
Latvia
N/a
The NEB uses an administrative
handling of complaints.
N/a
Under anti-discrimination law, the
NEB is required to investigate all
complaints where the passenger
suffered a disadvantage due to one
or more of the protected
characteristics.
The NEB issues warnings in cases of
non-compliance.
LT
Lithuania
LU
Luxembourg
HU
Hungary
Sanctions vary between 50,000 to
6,000,000 HUF (160 to 20,000 EUR).
MT
Malta
Under the Civil Aviation Act, sanctions
vary between 232 to 2,329 EUR.
No sanctions have been issued yet.
Under the Act on Aviation, sanctions
vary between 74,000 to 83,000 EUR.
One fine of 9,000 EUR was issued in
2018 for non-compliance of Regulation
1107/2006.
N/a
N/a
N/a
N/a
The maximum legal limit of sanctions is
60,000 EUR.
No sanctions have been issued yet.
N/a
Under the Act on Transport Services,
sanctions can be imposed.
No sanctions have been issued yet.
NL
Netherlands
The NEB instructs airports and
airlines on how to improve their
compliance.
N/a
N/a
N/a
N/a
N/a
N/a
The NEB investigates all complaints
and requests necessary information
from the airline/airport.
Recommendations made are non-
binding and cannot be appealed.
The Swedish Transport Agency is
responsible for training and
inspections at airports. The NEB
undertakes system-level
enforcement of Regulation
1107/2006 and can issue warnings.
AT
PL
PT
RO
SI
SK
Austria
Poland
Portugal
Romania
Slovenia
Slovakia
FI
Finland
SE
Sweden
The NEB can impose sanctions.
January 2020 | 82
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0109.png
Study on the current level of protection of air passenger rights in the EU | Final Report
State
Enforcement
Sanctions
The CAA can seek criminal proceedings
from the Court under part 8 of the
Enterprise Act 2002. The CAA has
previously asked airports to sign ‘legal
undertakings’ under Regulation
1107/2006 but has not imposed
sanctions.
Sanctions could in theory be imposed,
however the policy of the NEB is to not
issue any fines.
If the NEB observes non-compliance on
a systematic level, they could issue a
sanction.
No sanctions have been issued yet.
The maximum legal limit for sanctions is
20,000 CHF (18,155 EUR) per individual
case.
UK
United
Kingdom
Under the UK Access to Air Travel
Regulations 2014, the NEB can take
enforcement actions to ensure
compliance.
IS
Iceland
The NEB provides airlines/airports
with advice on how to improve
compliance with Regulation
1107/2006.
The NEB hosts a meeting with PRM
representatives 4 times a year to
ensure pro-active enforcement of
Regulation 1107/2006.
Enforcement is based on the
Administrative Penal Law Act. The
NEB investigates PRM compliance
on an individual basis.
NO
Norway
CH
Switzerland
Source: Steer analysis
There is significant variation in the level of the maximum sanctions which can be imposed for
infringements, and in some States the fines may not be at a high enough level to be dissuasive.
While some States can seek criminal proceedings (that is impose a prison sentence, such as in
Belgium or the UK), maximum sanctions in Malta, Croatia, Bulgaria are small (~ €5,000). In
addition, very few NEBs have issued fines. In several States, there are likely to be significant
practical difficulties in imposing and collecting sanctions, in particular in relation to airlines
registered in different Member States.
Summary of findings
Air passengers are now much more aware of their rights. This has been reported by all
stakeholders involved in the study, but what remains unclear is the extent to which passengers
have the detailed knowledge required by for them to claim their rights adequately. As
passengers cannot be expected to master CJEU rulings, it is important that a single, simple and
unambiguous text covers their rights (or at least most of them) rather than the legislative
millefeuille
that they face, even at EU level.
For passengers the situation is not much easier at home or in the countries between where
they fly: organisations to be contacted, processes, timelines, interpretation of the law,
outcomes all seem to vary from one Member State to another.
As the number of flights delayed or cancelled keeps increasing, so does the number of affected
passengers, meaning that in all likelihood, passengers are going to call more and more on the
tools available to them: airlines, NEBs, ADRs, ECCs, claim agencies, courts, etc. However, a
significant issue is that the outcomes for passengers appear to depend on the passenger’s
own
action and choice of claim channel (airline/NEB/ADR/Claim agency/Court). As a result,
passengers on same flight may not obtain the same redress, whereas they experienced the
same disruption and have the same rights.
January 2020 | 83
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0110.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The process for passengers to obtain redress is lengthy, particularly so
for “first-time
claimants” and can discourage many
of them before or during the process. It can involve
dozens of steps, waiting times from a few days to a few months (and not always with the
certainty of a response) and complex and can sometimes require costs to be incurred.
Surveys indicate that
passengers’ priority
is to receive the care and assistance that airlines
must provide in cases of disruption, followed by the opportunity to arrive at their destination
as soon as possible by being rebooked. There are some issues in both areas, but particularly in
the case of rebooking where “at the earliest opportunity” is not understood in the same way
by passengers and airlines.
Further, as there is no transparency and no possibility for passengers to know if an airline
performs well with respect to their air passenger rights obligations and claim handling (for
example, by publishing the number of claims denied by airlines that are then also confirmed
by NEBs), there is distrust towards the overall system too.
There are hardly any simple tools aimed at helping passengers by providing comprehensive
and reliable information:
•
•
•
•
•
it is not straightforward for passengers to know which airlines deliver good quality of
service with respect to air passenger rights and those that do not;
it is not straightforward for passengers to confirm the length of delay they experienced
after the event (i.e. some days or weeks later);
it is not possible for passengers to confirm if extraordinary circumstances applied for
particular flight or not;
it is sometimes not easy to contact airlines (e.g. webforms not working, not able to find
relevant email addresses, cost of telephone calls may be high); and
it is also sometimes also not easy for passengers to contact NEBs.
On the other hand, a positive aspect is that there are several different approaches available to
passengers seeking redress, but each comes with its specificities, processes, and costs and it
can quickly become quite complex and time-consuming for passengers to navigate the system.
Therefore, it is not surprising that passengers turn to claim agencies that are better equipped
than them to navigate the system on their behalf. However, the fees of claim agencies indicate
that passengers may need to pay a high cost to get their rights enforced.
January 2020 | 84
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0111.png
Study on the current level of protection of air passenger rights in the EU | Final Report
4
Airlines’ and airports’ perspective
on air passenger rights
Introduction
As introduced at the start of this report, the liberalisation of the European air transport market
has generated significant benefits for consumers: a wider choice of air services and intense
price competition between air carriers which has resulted in significantly lower fares and
strong market growth. To limit any potential negative impacts that this might have on the
quality of service delivered to air passengers and consumers, a number of measures have been
taken at European Union-level to protect them.
As well as protecting passengers, these measures were expected to contribute to an
improvement in the quality of service that European airlines provide to their customers and
make the airlines more competitive
53
. The clear definition of responsibilities between airlines
(e.g. for care and assistance due to passengers affected by disruption) and airports (e.g. for the
provision of PRM services) was also meant to contribute to a level playing field across the EU
and more uniform minimum quality standards, while supporting passenger confidence across
the EU aviation market.
This section focuses on the perspective of operational stakeholders (i.e. airlines and airports)
on the implementation of air passenger rights. Key to this section are the contributions of
airlines, airports and their representative associations through the stakeholder consultation.
The responsiveness of airlines has been relatively good on the policy issues, however, while
some airlines provided detailed insights and data to support the analysis, others provided very
little or no detailed information. The responsiveness of airports was relatively low, which
reflects the fact that they have limited exposure to Regulation 261/2004 and that issues
emerging from Regulation 1107/2006 are not as prevalent.
This section covers the following:
•
•
•
•
•
The cost of APR implementation for airlines;
The drivers of airline cost growth and the right to redress;
The impact of the cost of APR on different airline business models;
The cost of APR implementation for airports; and
An overview of the positions of operational stakeholders.
53
https://europa.eu/rapid/press-release_IP-05-181_en.htm
January 2020 | 85
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0112.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Cost of air passenger rights implementation for airlines
The costs borne by airlines in instances of disruption, as stipulated within Regulation
261/2004, that we have included in our estimation of the total costs currently borne by
airlines are as follows:
•
Compensation, which is paid to passengers on airline-attributable cancelled flights, airline-
attributable flights delayed on arrival by three hours or more and to passengers denied
boarding;
Care and assistance, which is paid to passengers on cancelled flights, flights delayed on
departure by two hours or more and to passengers denied boarding involuntarily;
Reimbursement, which is offered to passengers on cancelled flights and to passengers
denied boarding involuntarily, on flights delayed on departure by over five hours and to
passengers who are downgraded; and
Re-routing, which is offered to passengers on cancelled flights and to passengers denied
boarding.
•
•
•
The entitlements of passengers affected by disruption depend on the distance of their original
scheduled flight and, in the case of delays, the length of the delay. When Regulation 261/2004
originally came into force, passengers were not entitled to compensation in the case of delays;
however, since the CJEU’s Sturgeon ruling
54
, passengers on (airline-attributable) delayed
flights of three hours or more are entitled to compensation, although it should be noted that
the CJEU ruling in relation to delays is not enforced consistently across all countries (e.g. in
Switzerland). Passengers’ entitlements in relation to the distance of
their flight and, if relevant,
the length of delay are discussed in more detail below and summarised in Table 4.4.
Although not stipulated within Regulation 261/2004, we have also included costs associated
with reimbursing passengers for instances of mishandled baggage, the terms of which are
stipulated in the Montreal Convention.
The analysis of airline costs at industry-level has been developed top down, as we anticipated
that we would not be able to obtain comprehensive airline cost data for all years. We have
therefore used estimates and made assumptions. However, the analysis has been cross-
checked with cost data received from eight EU airlines, covering a range of large, medium and
small network airlines, as well as low-cost and charter airlines, accounting for 25% of
passengers in-scope of Regulation 261/2004 in 2018. All costs presented in this chapter are
shown as nominal prices.
Scenarios
To estimate the actual costs borne by airlines arising from Regulation 261/2004, we have
estimated the costs borne by airlines under different scenarios. We have done this, firstly, to
illustrate the importance of the passenger claim rate and airline compliance rate in relation to
airlines’ theoretical maximum costs and, secondly, to
ascertain the cost of the Regulation
relative to a scenario with no EU-wide air passenger rights legislation
The scenarios for which we have estimated
airlines’ costs in relation to Regulation 261/2004
are as follows:
•
Scenario 1: a theoretical scenario in which all passengers who are entitled to
compensation claim it (i.e. 100% passenger claim rate) and airlines are 100% compliant
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007CJ0402:EN:HTML
54
January 2020 | 86
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0113.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
•
with all aspects of the Regulation
–
this therefore represents the theoretical maximum
cost for airlines;
Scenario 2: a theoretical scenario in which airlines are 100% compliant with all aspects of
the Regulation, but passenger claim rates are at their current (below 100%) levels;
Scenario 3: the scenario that represents the current situation in which passenger claim
rates are at their current (below 100%) levels and airlines comply with the Regulation at
their current (below 100%) levels
–
this therefore represents the current situation; and
Scenario 4: a theoretical scenario in which Regulation 261/2004 does not apply and
passengers’ entitlements are determined by airlines’ policies as opposed to EU-wide
legislation
–
airline compliance is assumed to be lower than under scenarios with EU-wide
legislation.
An indicative depiction of the relative airline costs levels on each of the scenarios is shown in
Figure 4.1; airline costs are lowest under Scenario 4 and increase incrementally up to the
theoretical maximum level under Scenario 1.
Figure 4.1: Scenarios used to estimate airline APR costs
Source: Steer
In this chapter, we present a summary of actual airline costs for the implementation of APR in
the current situation (Scenario 3). A detailed description of the airline costs under all scenarios
is provided in Appendix C, alongside a description of the incremental costs between the no
regulation scenario (Scenario 4) and the current situation (Scenario 3).
Analytical framework
A simplified depiction of our core analytical framework is shown in Figure 4.2. Some of the
steps shown in the figure (for example, the step from the number of delayed passengers to
the number of passengers entitled to compensation) have required a number of assumptions
and calculation steps, which are described in more detail below.
January 2020 | 87
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0114.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.2: Analytical framework for estimates of airline APR costs
Source: Steer
All quantitative data used here has been collected at as disaggregated level as possible to
calculate each of the data points shown above in detail. However, in many cases, due to the
lack of data, more aggregated data has been used and assumptions have been required.
Cost assumptions
The costs borne by airlines in instances of disruption as stipulated within passenger rights
legislation are set out in paragraph 4.5 above. To estimate the total costs borne by airlines
under each scenario, we have:
•
Based on the number of passengers affected by disruption, the claim rate and airline
compliance (described in the previous chapter), estimated the number of passengers that
are entitled to (each level of) compensation, care and assistance, reimbursement and re-
routing; and
Estimated the monetary value of the compensation, care and assistance, and
reimbursement passengers receive for each type of disruption.
•
The remainder of this section sets out passengers’
entitlements in relation to each level of
disruption and our assumptions in relation the monetary value the entitlements (which is are
set out in more detail in Appendix C).
Passenger entitlements
The methodology used to quantify the number of passengers, on delayed and cancelled
flights, entitled to care and assistance, reimbursement/re-routing and each level of
compensation, based on the Regulation 261/2004 legal text and subsequent CJEU rulings, is
shown in the three figures below. Each figure shows passenger entitlements in the event of
flight delays and cancellations at the three distance bands used in the Regulation.
January 2020 | 88
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0115.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.3: Regulation 261/2004, passenger entitlements (<1,500 km)
Source: Steer analysis of Regulation 261/2004 and interpretive guidelines
Figure 4.4: Regulation 261/2004, passenger entitlements (>1,500 km (Intra-EU) or <3,500 km (Extra-EU))
Source: Steer analysis of Regulation 261/2004 and interpretive guidelines
January 2020 | 89
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0116.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.5: Regulation 261/2004, passenger entitlements (>3,500 km (extra-EU))
Source: Steer analysis of Regulation 261/2004 and interpretive guidelines
In summary:
•
•
Passengers who are involuntarily denied boarding have the same entitlements as
passengers on cancelled flights shown in the three figures above;
Passengers who are voluntarily denied boarding are entitled to certain rights based on
‘conditions to be agreed between the passenger concerned and the operating air carrier’
(we have assumed these passengers are compensated half the monetary amount of
passengers denied boarding involuntarily);
Passengers who are downgraded are entitled to a reimbursement of either 30%, 50% or
75% of their fare at the distances shown in Figure 4.3, Figure 4.4 and Figure 4.5
respectively; and
Based on the Montreal Convention, passengers who have their baggage mishandled are
entitled to compensation to a maximum value of approximately €1,000.
•
•
The following section sets out the assumed monetary value of the compensation, care,
reimbursements passengers receive based their entitlements.
Unit cost assumptions
A summary of the unit cost assumptions used for each type of disruption discussed above are
shown in Table 4.1. A detailed description of the methodology used to derive these
assumptions is set out in Appendix C.
There is a large variation in price levels across the EU+3, for example a hotel night in
Amsterdam does not cost the same as a hotel night in Sofia
–
which means care and assistance
and reimbursement/re-routing costs vary between Member States. The cost assumptions
reported in the table below therefore represent EU (+3)-wide weighted averages that are
weighted more towards Member States with a higher price base, as these Member States
account for a much larger proportion of total passenger traffic.
January 2020 | 90
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0117.png
Study on the current level of protection of air passenger rights in the EU | Final Report
These cost assumptions take account of the proportion of passengers requiring each type of
care and assistance, the proportion choosing reimbursement or re-routing, and the proportion
of passengers with cancelled flights that get reduced compensation (described in detail in
Appendix C). The monetary figures shown are therefore a weighted average for each type of
passenger based the assumptions above and are for the year 2018 (with cost assumptions for
preceding years deflated as described in Appendix C).
January 2020 | 91
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0118.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 4.1: Assumptions made for airline costs (2018)
Distance
(km)
Departure delay
>2
Hours
€7.20
>3
Hours
€10.20
>4
Hours
€13.20
>5
Hours
€65.60
€113
>2
Hours
-
Arrival delay
>3
Hours
€250
>4
Hours
€250
>5
Hours
€250
Cancellation
entitlement (incl.
denied boarding)
€53
€188
€50
€53
€300
€57
€53
€450
€200
Downgrading
discount
Denied
boarding
(voluntary)
€56
Mishandled
baggage
< 1,500
> 1,500
(Intra-EU)
1,500 to
3,500
(Extra-EU)
> 3,500
(Extra-EU)
-
-
€10.20
€13.20
€65.60
€126
-
€400
€400
€400
-
€63
Lost/Stolen: €845
Damaged: €210
Delayed: €105
-
€13.20
€65.60
€447
-
€300
€600
€600
€1,656
€224
Key:
Care
Reimbursement, re-routing or return flight
Compensation
Benefits agreed with the passenger
January 2020 | 92
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0119.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Results
Below the results for the total costs in the current situation (Scenario 3) are summarised.
These costs are then contextualised with respect to other airline costs, average airline yields
(i.e. fares) and airline profits in the next section.
Results for the theoretical scenarios (1, 2 and 4) are provided in Appendix C, alongside an
estimate of the incremental cost of Regulation 261/2004 for airlines relative to the costs that
would be borne by airlines in a counterfactual situation with no EU-wide air passenger rights
legislation (which means passengers’ entitlements when disrupted would be determined by
airlines’ policies)
(i.e. Scenario 3 less Scenario 4).
Airline costs based on current actual claim rates and actual compliance (Scenario 3)
Scenario 3 represents the total costs for airlines in the current situation with actual passenger
claim rates and actual airline compliance rates
–
with respect to granting compensation to
eligible passengers and care provided, reimbursement and re-routing to all passengers
entitled to them. Scenario 3, therefore, represents the current situation in terms passenger
claims and airline compliance in relation to Regulation 261/2004.
Table 4.2: Scenario 3 total costs
€ million
Compensation
Care
Reimbursement/ Re-routing
Mishandled baggage
Total
2011
267
324
889
81
1,560
2012
412
369
978
92
1,851
2013
547
473
1,116
111
2,247
2014
437
351
914
148
1,849
2015
657
400
956
197
2,209
2016
954
519
1,103
230
2,805
2017
1,217
677
1,404
274
3,572
2018
2,258
932
1,787
302
5,279
Source: Steer analysis of CODA and airline data
Figure 4.6: Scenario 3 total costs
Source: Steer analysis of CODA and airline data
January 2020 | 93
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0120.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Under Scenario 3, total costs have increased from €1.6 billion in 2011 to €5.3 billion in 2018.
Total costs increase over the period shown due to increasing levels of passenger traffic and
disruption, as well as increasing levels of passenger claims and airline compliance.
Relative cost of air passenger rights implementation
To analyse the magnitude of the costs incurred by airlines in relation to Regulation 261/2004
(261 costs), we have:
•
•
•
Assessed the size of Regulation 261/2004
costs relative to airlines’ other operating costs,
separately for low-cost carrier (LCC) and network carrier business models;
Compared the Regulation 261/2004 cost per passenger (and per passenger affected by
disruption) to European-industry-wide average yield and profitability levels; and
Compared airline average yield and profitability levels under three typical flight scenarios
with and without a four-hour delay.
We have drawn on airlines’ financial data from 2018, as the most recent full year, and 2014, as
a recent year when fuel prices were higher and European airlines’ profitability was
significantly lower than current levels, in order to capture the impact of Regulation 261/2004
costs at different parts of the economic cycle. However, in most cases, airlines do not
separately report their Regulation 261/2004 costs, so these are derived from our estimates
and are then compared with the revenue and cost items that are provided by airlines in their
financial statements.
For the analysis below:
•
•
•
Regulation 261/2004 costs used represent the costs under the current situation (Scenario
3 above), for compensation, care, reimbursement and re-routing.
Passengers represent all those on flights within the scope of the Regulation.
Passengers affected by disruption represent all those on flights within the scope of the
Regulation, that are delayed (over two hours), cancelled, denied boarding or downgraded
(i.e. not only the passengers who submit a compensation claim).
The Regulation 261/2004 cost per passenger and per passenger affected by disruption
between 2011 and 2018 is shown in Table 4.3.
Table 4.3: 261-related cost per passengers and per passenger affected by disruption
€
261 compensation, care,
reimbursement and re-routing
costs under Scenario 3 (€ billion)
Total passengers (million)
Passengers affected by disruption
(million)
Passengers affected by disruption
(%)
Cost per passenger (€)
Cost per passenger affected by
disruption
(€)
2011
1.5
834
17
2.0%
1.8
89.3
2012
1.8
841
18
2.1%
2.1
100.4
2013
2.1
854
21
2.5%
2.5
103.4
2014
1.7
889
16
1.8%
1.9
105.0
2015
2.0
928
18
1.9%
2.2
112.9
2016
2.6
983
22
2.2%
2.6
115.1
2017
3.3
1,052
26
2.5%
3.1
124.6
2018
5.0
1,121
36
3.2%
4.4
138.3
Source: Steer analysis of CODA and airline data
January 2020 | 94
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0121.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The increasing cost per passenger, between 2011 and 2018, is driven by an increasing level of
disruption, increasing proportion of eligible passengers claiming and increasing levels of airline
compliance. The cost per passenger affected by disruption is increasing for the same reasons.
The cost per passenger affected by disruption
is less than the €250 (the minimum standard
compensation level) for the following reasons:
•
•
•
•
Passengers affected by disruption include passengers who are delayed by more than two
hours, but less than three, and are entitled to care but not compensation;
Not all passengers affected by disruption that are entitled to compensation actually claim
it;
Passengers affected by disruption include those voluntarily denied boarding who receive
other benefits; and
A proportion of Passengers affected by disruption are re-routed within the arrival
thresholds that reduce compensation by 50%.
Airline costs
The share
of airlines’
Regulation 261/2004 costs, as well as other major operating cost items,
as a proportion of total operating costs are shown in Figure 4.7 and Figure 4.8 for LCCs and
network carriers
respectively. The figures show the relative share of airlines’ cost items in
2018 (outer ring) and 2014 (inner ring).
Figure 4.7: Airline operating cost items share
–
Low-cost carriers (2014 and 2018)
Source: Steer analysis of airline annual reports and data provided by airlines
January 2020 | 95
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0122.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.8: Airline operating cost items share
–
Network carriers (2014 and 2018)
Source: Steer analysis of airline annual reports and data provided by airlines
In 2014, on average, Regulation 261/2004 costs accounted for 2% and 1% of LCC and network
operating costs respectively; the lower share of costs for network carriers is due to a higher
total cost base for these airlines. In 2018, the share of Regulation 261/2004 costs increased to
6% for LCCs and 3% for network carriers
–
this increased share is due to a combination of
increased Regulation 261/2004 costs and reduced fuel costs between 2014 and 2018. None of
the other cost items’ share of total costs changed significantly between 2014 and 2018, with
no item changing by more than two percentage points between the two years.
Although Regulation 261/2004 costs accounted for a very small part of network carriers’
total
cost base in 2014, the increase in the share of Regulation 261/2004 costs between 2014 and
2018 appears large compared to other cost items. For LCCs, the increase in share of
Regulation 261/2004 costs is larger, where Regulation 261/2004 costs have overtaken in share
the costs for marketing and distribution.
Airline average yield and profitability
The average revenue per passenger (average yield) of European airlines together with the
average 261 cost per passenger and the average Regulation 261/2004 cost per passenger
affected by disruption are shown in Figure 4.9 and Figure 4.10 respectively.
January 2020 | 96
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0123.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.9: Airline average yield and 261-related cost per passenger
Source: Steer analysis of airline data and IATA Industry Economic Performance reports
Figure 4.10: Airline average yield and 261-related cost per passenger affected by disruption
Source: Steer analysis of airline data and IATA Industry Economic Performance reports
Based on IATA airline economics data, the average yield for European airlines has fallen from
€206 in 2012 to €148 in 2017, with a CAGR of
-5.4%, reflecting increasing airline competition
and capacity provision, as well as an increased market share for LCCs, which are able to offer
lower fares than network carriers on many routes (therefore further reducing the industry-
wide average yield).
January 2020 | 97
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0124.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Over the same period, the 261 cost per passenger increased significantly, from €2.1 in 2012 to
€4.4 in 2018, with a CAGR
of +13.4%, driven by increasing levels of disruption, increasing
passenger claims and increasing airline compliance. In 2018, the average 261 cost per
passenger represented under 3% of European airlines’ average yield.
The average 261 cost per passenger affected by disruption
has increased from €89 in 2011 to
€138 in 2018, with a CAGR of +5.5%, (driven by increasing passenger claims and airline
compliance). In combination with falling yields, this means that in 2018 the average 261 cost
for every passenger affected by disruption was 90% of the yield that each passenger affected
by disruption generated. This is on the basis that not all passengers affected by disruption
submit a claim, and before any other operating costs are accounted for. Based on this,
passengers affected by disruption are on average loss-making for airlines on a per passenger
basis, but passengers affected by disruption represented only a little over 3% of total
passengers in 2018.
Average 261 costs per passenger and European airlines’
average earnings before interest and
taxes (EBIT) per passenger are shown in Figure 4.11.
Figure 4.11: Airline average EBIT and 261-related cost per passenger
Source: Steer analysis of airline data and IATA Industry Economic Performance reports
European airlines’ EBIT per passenger remained below €4 between 2012 and 2014,
increased
significantly in 2015 due in part to a large reduction in fuel costs and has remained at between
€9 and €10 since 2015. Over the same period, airlines’ average 261 cost per passenger
increased, although for most of the period it remained significantly below the level of EBIT per
passenger. Adjusting the EBIT for the 261 costs (i.e. removing 261 costs to give the earnings
without them), in 2012, the 261 cost per passenger was above 50% of the EBIT per passenger
(before 261 costs). In subsequent years, 261 costs have represented smaller, but growing
proportion of the EBIT, as airlines’ profitability has improved in the context of lower fuel costs,
but 261 costs have increased driven by increased disruption and increased claim rates.
January 2020 | 98
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0125.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline route profitability
To assess the impact of 261 costs on airline route profitability, based on available seat
kilometre (ASK) and financial data collected from airlines’ annual reports, we have quantified
the average cost, revenue and profit per flight for three separate route scenarios, with and
without a four-hour
55
delay on arrival. The three scenarios are shown in Table 4.4.
Passengers receive compensation as stipulated within the Regulation based on the distance of
the flight and the length of delay and passengers are assumed to receive care and assistance
equivalent to the value of €13, consistent with the total cost quantification methodology
described above.
Table 4.4: Airline route profitability on 4-hour delay scenarios
Scenario
LCC Short-
haul
LCC
Medium-
haul
Network
carrier
Long-haul
Route
Düsseldorf-
Palma de
Mallorca
Amsterdam-
Athens
London
Heathrow-
New York JFK
Distance
Seats
Load
Factor
90%
261 Costs per Passenger
Compensation
€250
Care
€13
Total
€263
1,342km
189
2,184km
189
90%
€400
€13
€413
5,554km
275
80%
€600
€13
€613
Source: Steer analysis of airline annual reports and data provided by airlines
Based on the assumptions in the table above for each route, the revenue, cost and profit per
flight, with and without 261 care and compensation costs, are shown in Figure 4.12 for 2018.
Figure 4.12: Airline route profitability delay scenarios
LCC short-haul
150
100
50
LCC medium-haul
Network long-haul
€ '000s
-
7.6%
(319%)
7.6%
(308%)
11.9%
(79%)
(50)
(100)
Flight
Revenue
Flight
Cost
Profit 261 Cost Profit
without
with 261
261
Flight
Flight
Revenue Cost
Profit 261 Cost Profit
without
with 261
261
Flight
Flight
Revenue Cost
Profit 261 Cost Profit
without
with 261
261
Source: Steer analysis of airline annual reports and data provided by airlines
55
Four hours is assumed as, on Extra-EU flight of over 3,500km, passengers of flights with delays of
between three and four hours are only entitled to 50% of the normal compensation entitlement.
January 2020 | 99
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0126.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Without Regulation 261/2004 costs, the profit per flight on the LCC short-haul and LCC
medium-haul
routes is €1,018 and €1,657 respectively –
equivalent to a revenue margin of
7.6%. However, if compensation and care costs are paid to all passengers on the flight, the
short-haul
and medium haul routes make a loss of €42,700 and €66,938 respectively,
equivalent to revenue margin of over -300%. This implies an additional 41-42 flights on the
two routes (paying no Regulation 261/2004 costs) would need to be operated at a similar load
factor in order to recoup the costs incurred.
Without 261 costs, the profit on the network carrier long-haul
route is higher (€15,664) and is
equivalent to a revenue margin of 11.9%. The higher margin means that, if Regulation
261/2004 costs are paid to all passengers, although the loss per flight is higher compared to
the other routes (€103,531), the loss in terms of revenue margin is equivalent to
-79%. This
implies an additional 7 flights on this route (paying no Regulation 261/2004 costs) would need
to be operated at a similar load factor in order to recoup the costs incurred.
Since the 2009 Sturgeon ruling, the compensation airlines are required to pay to passengers
on delayed flights has been equivalent to the compensation paid for cancellations. This
means, from a purely cost perspective, airlines could be incentivised to cancel flights in order
to avoid knock-on delays. For example, if one flight was delayed by more than three hours, all
subsequent flights in the same day planned to be operated with the same aircraft would also
be delayed, whereas cancelling one rotation could avoid any knock-on delays.
To illustrate this, we have compared the costs incurred by airlines on the LCC short-haul route
shown in Table 4.4, where four flights are planned to be operated in a day, and either:
•
•
Two flights (one round trip) are cancelled but the two remaining flights are operated on
time; or
All four flights are operated but with a delay of at least three hours.
The assumptions used to estimate the costs borne by airlines in each of these two scenarios is
as follows:
•
•
Flight operation costs are based on the financial data collected from airlines’ annual
reports described in paragraph 4.41;
Compensation costs are based on those stipulated with the Regulation
–
it is assumed
that 50% of passengers affected by disruption claim compensation and the airline is fully
compliant;
Reimbursement and re-routing costs (consistent with our estimation of
airlines’ total cost
burden) are based the assumption that 25% of passengers choose a reimbursement when
a flight is cancelled and 75% choose a re-routing (of which only 10% are rerouted with a
different airline); and
Care and assistance costs are incurred in relation to the amount of time passengers are
delayed.
•
•
The costs incurred by an LCC on a route under 1,500 km, based on the scenarios described
above, are shown in Figure 4.13. The costs incurred for cancellations are shown separately for
two scenarios where, firstly, all rerouted passengers are rerouted within two hours of the
scheduled departure time (and therefore receive 50% of their compensation entitlement) and,
secondly, all rerouted passengers are not rerouted within two hours of the scheduled
departure time (and therefore receive their full compensation entitlement). In the latter case,
20% of passengers are also assumed to require overnight care and assistance.
January 2020 | 100
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0127.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 4.13: Costs incurred by LCC carrier on short-haul route arising from cancellations and delays
Source: Steer analysis of airline annual reports and data provided by airlines
The costs incurred by an airline operating four flights delayed by three or more hours are over
€140,000, compared to between approximately €40,000 and €65,000 for two cancelled flights.
This implies that, from a purely cost perspective, airlines could be incentivised to cancel flights
when faced with the possibility of delays of three hours or more.
However, it should be noted that such an incentive is greater for airlines operating short-haul
routes with multiple turnarounds in a single day, which means the scope for knock-on delays
are greater. On longer haul routes with lower frequencies, where in addition to the
compensation, costs for either care & assistance to cover several nights’ accommodation, or
costs for expensive re-routings (due to limited capacity) may have to be incurred, which
means there is less of an incentive to cancel flights.
It is also likely that the costs they incur will not be airlines’ only consideration when deciding
whether or not to cancel a flight; for example, an airline may choose not to cancel a flight for
reputational reasons, even if it makes sense from a purely cost perspective. In addition, it is
also likely that airlines will incur some costs associated with flight operation, such as staff,
even if a flight is cancelled.
Administrative and legal costs
In addition to the direct costs for compensation, care and assistance, and reimbursement and
re-routing that airlines incur as a result of implementing Regulation 261/2004, airlines also
incur administrative costs for handling passenger claims (directly with passengers, with NEBs,
with travel agents in some cases, or bilaterally with claim agencies), including costs for
customer service staff and systems. They incur legal costs too when they defend cases in
court. As described below, the activity of claim agencies has driven an increase in the number
of cases that are taken to court. Additional costs are also generated for airlines by the
January 2020 | 101
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0128.png
Study on the current level of protection of air passenger rights in the EU | Final Report
complexity of having to be represented in many different jurisdictions/legal systems and
languages.
Of course, not all of the administrative and legal costs are incremental and it is not
straightforward for airlines to isolate customer service costs that relate to claim handling in
relation to Regulation 261/2004 alone, as opposed to handling other passenger issues.
However, where airlines have provided relevant information, the administrative and legal
costs range from 2% to 10% of the airlines’ compensation and care costs in 2018. These costs
then also contribute to the overall cost of APR implementation, and generally have increased
in line with growth in the number of passengers affected by disruption, but since the marginal
cost of handling additional claims is much smaller than the cost of compensation, the
proportion that administrative costs represent of total costs has been decreasing.
Cost of mitigation measures
As the risk of disruption creates a financial risk for airlines under Regulation 261/2004 some
have adopted mitigation measures to limit their potential exposure by building additional
resilience into their route networks and schedules. This is done in at least two ways:
•
•
Building some additional time into schedules and turnarounds to improve operational
resilience, but reducing the utilisation of existing aircraft; and/or
Buying or leasing spare aircraft that can be deployed to avoid knock-on delays in cases of
disruption.
In many ways, this is the outcome that Regulation 261/2004 is targeting, however, the degree
to which this is done has to be balanced with a sufficiently efficient
use of airlines’ aircraft.
Airlines have stated that they are generally not in position to keep spare aircraft beyond the
requirements of their network/schedule as the cost would be financially prohibitive. However,
one airline group indicated that up to 3% of its fleet is dedicated to mitigating potential
Regulation 261/2004 costs, while another medium-sized network carrier stated that up to
6.7% of its short-haul fleet is kept for minimising extensive disruptions and the associated
costs. One regional carrier maintains 10% of its fleet for ensuring operational resilience. Based
on the analysis of airlines’ costs above (see
Figure 4.7 and Figure 4.8), given aircraft lease and
maintenance costs account for between 14% and 16% of the cost base, then the additional
aircraft would amount to approximately 0.4%-0.9% of the total cost base (1.3% for regional
carriers), which could be allocated to 261 costs rather than lease and maintenance costs.
In any case though, even if aircraft might be available at an airline's main base, this will not be
the case at outstations. So even in combination with increased minimum connecting times
and longer turnarounds, airlines stated that such measures only generate a small effect in
terms of mitigating disruption. In scheduling longer turnarounds, airlines seek to balance
aircraft and crew utilisation, the opportunity cost of extra revenue-generating capacity (i.e.
additional leg(s) flown in a day), and the risk disruption and knock-on delays.
Cost of re-routing
Regulation 261/2004 defines that passengers who are entitled to re-routing should be offered
one at the
“earliest opportunity”.
The interpretation of
“earliest opportunity” varies
significantly. Airlines generally view that this should be at the earliest opportunity on one of
their own services,
rather than on competitors’ flights.
However, practice varies between
airlines with some having well-defined approaches that set out the priority in which
alternative options (own services > other alliance carriers > other interline carriers > other
January 2020 | 102
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0129.png
Study on the current level of protection of air passenger rights in the EU | Final Report
carriers) may be used within given timeframes, while others handle re-routing on a case-by-
case basis. How readily an airline will re-route passengers on competitors’
flights depends
on
factors such as the frequency with which the original airline serves a given destination, the
capacity available on alternative carriers and, to some degree, passenger preference around
the re-routing option. Land transport is usually offered if no alternative by air is available.
For IATA airlines, based on IATA Resolution 735d, the cost of re-routing is not more than the
value of the ticket already paid by the passenger, so in this case airlines forgo the relevant
revenue but still incur relevant care and compensation costs. For other airlines though, the
cost of re-routing may simply be the face value of a new last-minute ticket purchased at the
time of the disruption, which could be very expensive. In this case, airlines keep the revenue
for the original ticket, but have to incur the cost of a new and likely more expensive ticket, in
addition to any care and compensation obligations.
The engagement with NEBs has not indicated that a clear consensus exists among them on
how the re-routing obligation should be interpreted
–
we note that Austria has made it a legal
requirement that the re-routing
at the earliest opportunity should include competitors’
services. Passengers travelling on a package are covered by the Package Travel Directive (see
Chapter 6) in which case their travel organiser may make alternative re-booking
arrangements, rather than relying on the original airline.
Drivers of air passenger rights cost growth for airlines
The cost of implementation of Regulation 261/2004, which airlines view as disproportionate,
and its evolution in recent years was the main concern raised by them during the stakeholder
consultation. As discussed above, the increase in APR costs is, at a high level, driven by
increased disruption combined with increased claim rates and increased focus on
compensation. The level of disruption is expected to continue to increase as the system
becomes more congested and capacity constraints, particularly in Air Traffic Management
over the summer period, generate a large amount of delays. This may be addressed through
the single European sky (SES) rather than APR. On the other hand, the claim rate, eligibility of
these claims and compensation levels all relate directly to APR, and according to airlines have
been driving APR costs up through in the following ways:
•
Increased claim rate (as displayed in Chapter 2), particularly as a result of claim agency
activity;
–
As a general rule, airlines only pay compensation to passengers when it is claimed,
since there is no requirement for them to do so proactively (although there are ad-
hoc examples of flights where compensation has been offered proactively by
airlines). Increased awareness amongst passengers of their rights and the increased
involvement of claim agencies targeting such cases has resulted in an overall increase
in the successful claims to airlines. The rate at which passengers claim varies
significantly between Member States, reflecting the level of awareness and/or the
activity of claim agencies in these.
Increased compensation/damages, administrative and legal costs as a result of a larger
number of disputed cases ending up in ADR and courts driven by:
–
Claim agency activity.
–
Compensation and damages awarded to passengers in ADR or courts, occasionally
beyond the requirements of the Regulation.
–
Legal uncertainty emerging from different interpretations by the courts across
Europe, but sometimes even courts in the same jurisdiction.
•
January 2020 | 103
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0130.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
Increasingly narrow definition of extraordinary circumstances emerging from CJEU
rulings, as well as
the increasingly wider interpretation of the Regulation’s scope (e.g.
journey-basis, including connections outside the EU/EEA/CH).
From a practical perspective, it can be observed that most airlines are called to interact with a
very large number of bodies (at a minimum all the NEBs in countries they fly to/from, all the
ADRs in countries where they fly to/from, many courts in countries where they fly to/from and
sometimes beyond, a number of ECCs) as well as multiple claim agencies and individual
passengers. In part, this is inherent in the nature of the activities of most European airlines,
serving passengers across many different countries. For instance, airlines would very well be
expected to have customer service departments equipped to deal with the typical level of
activity generated by the passengers they carry. However, in addition to individual passengers,
airlines operating in the EU/EEA/CH may be called to interact on air passenger rights with:
•
•
•
•
•
Up to 31 NEBs for Regulation (EC) 261/2004 (these interactions are free for airlines);
National and local courts (these interactions may incur legal costs and fees);
ADR bodies (these interactions may be free or may incur a fee for airlines);
Up to 30 ECCs (these interactions are free); and
Numerous claim agencies (these interactions are free but may result in costs for airlines).
All of these interactions and the complexity associated with them generate an incremental
administrative burden for airlines. Figure 4.14 below illustrates this situation.
Figure 4.14: Interactions of airlines other parties on air passenger rights
ADRs
Local
courts
Up to 31
NEBs
Up to 30
ECCs
Airline A
Claim
agencies
Incremental
admin burden
applicable for all
interactions
Individual passengers
Source: Steer
January 2020 | 104
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0131.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline interaction with passengers
The fact that practice with respect to claims under Regulation 261/2004 varies between
airlines and between NEBs (see Chapter 5), generates confusion for passengers. When there is
a dispute, airlines encourage passengers to use NEBs and/or ADRs. The different approaches
taken by NEBs and ADRs (see Chapter 6) in different Member States generate further
confusion for passengers and airlines, with the link between NEBs and ADR in some cases (e.g.
at least 2 non-Danish airlines that fly to DK were not aware that the DK NEB is also an ADR)
not being very clear. As a result of this passenger confusion, passengers’ trust in the system
and particularly towards the airlines is low (sometimes justifiably
–
e.g. where travel
companions on the same disrupted flight received different outcomes from the airlines; and
sometimes not justifiably
–
e.g. passengers misunderstanding the rules).
One network carrier and one airline association stated that they have observed an increase in
the proportion of disputed claims being escalated to NEBs and ADRs, while at the same time
the proportion of claims received from claims agencies has stabilised
–
indicating that
passengers are more aware of the free steps (i.e. NEBs and ADRs) that they can take to
dispute the airline’s response, but nonetheless in doing so they are generating additional
administrative burden for airline. Another network carrier, however, indicated that the
proportion of disputed claims has been relatively stable
–
which again highlights the
differences between airlines and between Member States.
Passengers’ low intelligibility of the system, according to airlines,
also results in the airlines
sometimes receiving the same claim simultaneously from multiple sources (e.g. ADR and two
different claim agencies), as passengers try to maximise their chances of receiving
compensation. Claims for flights disrupted due to extraordinary circumstances, for which
airlines are in principle exempt from paying compensation for, may in fact end up being just as
costly as legitimate claims that are compensated, given the additional time and resources
required to handle them. If not received simultaneously, passengers may dispute claims with
NEBs and/or ADRs and then claim agencies, if the former do not find in their favour. Claims
agencies will then bring the case to court, generating additional legal costs for the airlines in
cases where they do not settle in order to avoid the courts altogether (see Courts and claim
agencies section below).
Claim handling by airlines
The way in which airlines receive and handle claims varies from completely manual handling
at smaller airlines to more sophisticated, (semi-)automated handling at very large ones.
Customer care departments are the first point of contact for passengers. Customer care
receives all passenger enquiries, including claims related to Regulation 261/2004, complaints
related to Regulation 1107/2006, and any other customer-related issues. For small and
medium-sized airlines this function may be centralised, while for larger, network airlines it
may be distributed around the world (although somehow coordinated centrally). Some
airlines have established dynamic Regulation 261/2004 processes through which disrupted
flights are tracked in real-time by operations control and are classified as due to extraordinary
circumstances (compensation not to be paid) or not (compensation to be paid) in almost real
time, enabling customer service agents to then respond directly and as consistently as
possible to claims received from passengers. More complicated cases (e.g. complex
connections) or disputed cases are passed on to internal legal teams and may draw on airline
internal experts.
January 2020 | 105
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0132.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Subject to complete information being received and additional information not needing to be
clarified with outstations, for example, airlines aim to respond to passenger claims in a
timeframe that they define themselves (from within 3 days or up to 3 months). Figure 4.15
below shows the number of days (given in their responses to the stakeholder consultation)
that airlines indicated they will take to provide an initial decision to passenger claims. In some
cases, the actual response time may be shorter than the target time; in complex cases it may
be longer.
Figure 4.15: Number of days airlines state they take to respond to passenger claims
3
Number of airlines
2
1
2
2
1
2 1
3
1
1
1
1
1
1
1
* Proactive: airlines contact passengers affected by disruption proactively, rather than waiting for a claim to be
received from passengers
Source: Stakeholder consultation responses
Two airlines, one very small regional airline and one medium-sized network airline, stated that
they contact passengers affected by disruption proactively in order to offer them
compensation, but we have not been able to verify this, and they would certainly be a
minority of cases among their peer airlines. As can be seen in the figure above, there is not
one set of time frame and therefore customer experience will differ. Airlines explained that in
some cases, response times have had to be increased in order to be to handle the high volume
of claims now being received (the airline with 19 days above), in another case the response
time includes the payment of the compensation, not just the response to the passenger (one
airline with 10 days above), while in the case of the 30 day target, this has been specified in
national law (actual response times may be lower).
In responding to passenger claims and complaints, most airlines indicated that priority is given
to PRMs and, where applicable, to passengers who are members of their loyalty programs and
have tier status.
As noted above, one medium-sized network airline proactively contacts passengers requesting
their bank details so it can pay the compensation due after a long delay or cancellation. In
general, however, we note that proactive compensation is complicated by a number of
factors, which is why passengers have to be contacted to provide bank details, including:
•
•
Payment and credit card rules on fraud protection and money laundering; and
The passenger to whom compensation is due may not have been the one who arranged
the travel and paid for the flights.
Proactive*
1 day
2 days
3 days
4 days
5 days
6 days
7 days
8 days
9 days
10 days
11 days
12 days
13 days
14 days
15 days
16 days
17 days
18 days
19 days
20 days
21 days
22 days
23 days
24 days
25 days
26 days
27 days
28 days
29 days
30 days
|
Z
|
6 weeks
|
|
Z
|
|
3 months
Time taken to respond to passenger claims
January 2020 | 106
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0133.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Additionally, airlines do not always have the contact details of their passengers when these
have booked via a third party (i.e. travel agency) (see Chapter 0 for more on provision of
passenger contact details).
Airline interaction with National Enforcement Bodies
NEBs monitoring and enforcement activities under Regulation 261/2004 are presented in
Chapter 5. Overall, whilst some NEBs had some issues with some airlines, most airlines that
we interacted with during the stakeholder consultation did not point to significant issues in
their interactions with NEBs. They acknowledged that most NEBs liaise well with passengers
and to a lesser degree with airlines, but highlighted that the variety of approaches,
frameworks, decisions and justifications required by the 31 NEBs was particularly complicated
and added an administrative burden.
As presented in more detail in Chapter 5, NEBs have different and sometimes contradicting
views among themselves on similar issues (such as the type of proof that has to be provided
by airlines, NEBs assessment of extraordinary circumstances and reasonable measures taken
by airlines, etc.). This requires airline policies to be adapted in different Member States to
correspond to each NEB’s interpretations and expectations (process, documentation,
acceptable evidence), which creates added complexity and cost.
Further to this, airlines sometimes also end up in disputes with NEBs over the interpretation of
certain issues (e.g. re-routing) and extraordinary circumstances (e.g. industrial action). Cases
are ongoing for example between airlines and NEBs in Finland and the UK around
disagreements on the application of extraordinary circumstances. One airline also highlighted
that, according to some NEBs, it is not possible to deduct compensation already paid under
Regulation 261/2004 from other compensation claimed in accordance with Article 19 in
Montreal Convention (for example pre-paid event), despite Article 12 of Regulation 261/2004
specifying that such a deduction may be made.
As also indicated in Chapter 5, the application of sanctions by NEBs is overall quite limited, and
in most cases this has been in relation to non-compliance with Article 14 of Regulation
261/2004 on information provision, as a result of audits completed by the NEB. The impact of
NEB sanctions does not appear to represent a material cost for airlines nor a material
incentive to change behaviour. Nevertheless, adapting the information provision to meet
different NEBs’ expectations also contributes to the overall complexity that airlines have to
address. Specifically on compliance with Art. 14, airlines also indicated that it is not necessarily
possible in practice to prove that all affected passengers have been informed of their rights of
care and assistance in the case of long delays. Many passengers will not go to the gate, if one
has even been assigned, if airport information boards indicate that their flight is delayed and
while technology may help with contacting passengers, the airline may not have all of its
passengers’ contact details (see section above).
Some NEBs coordinate meetings or workshops with airlines, which airlines described as
constructive in terms of understanding NEB expectations. Some airlines have adapted their
policies and the information provided to passengers in response to such meetings and/or NEB
audits.
January 2020 | 107
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0134.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline interactions with courts and claim agencies
Despite the large number of interactions and interfaces that Regulation 261/2004 creates for
airlines, in our engagement with them, the airlines repeatedly highlighted that the courts are
the most problematic for them, as these generate a lot of uncertainty, complexity and cost:
•
Uncertainty: according to operational stakeholders, most courts are not particularly
specialist in Regulation 261/2004 and there is no guarantee that they will always follow
Regulation 261/2004 and its associated jurisprudence.
–
Burden of proof: this differs between countries and in some cases, it can be
particularly difficult to demonstrate that all reasonable measures were taken or
prove why it was not possible nor reasonable for given measures to be taken. It can
also be difficult to explain to non-aviation industry specialists the complexity of the
aviation system and the direct or indirect causality between an event (e.g. bad
weather or ATC restrictions), a specific flight delay or cancellation and the mitigation
measures an airline may have put in place to limit the overall impact of the event.
–
Appeals: in some cases, court decisions are not appealable.
Complexity and costs: All court processes and representation vary between countries,
which generates cost as multiple legal teams need to be appointed.
–
Jurisdiction: if a case goes to court it may be in the country of arrival, departure,
residence of the passenger, or domicile of the airline;
–
Statute of limitations: this differs between countries and generates cost and
complexity making it complicated for airlines to be certain about when claims may be
considered to have expired and no longer represent a liability.
•
Claim agencies prefer to pursue cases in the courts. As discussed in Chapter 0, claim agencies
may be motivated to readily take court action, since they charge/withhold higher fees than
when resolving a claim directly with an airline. Additionally, claim agencies are understood to
target courts in specific jurisdictions that are assessed as being particularly consumer-friendly
in their interpretation of Regulation 261/2004. Airlines explained that this presents a risk to
them, since they want to avoid incurring legal costs when the ruling is likely to award the
passenger compensation anyway– as well as potentially generating jurisprudence
–
so they
may end up settling out of court, even when they are strongly of the opinion that the claim
should not be eligible. According to
airlines, it is also the case that even if an airline’s defence
is successful, airlines tend to not seek and courts would tend to not award costs to the airline,
as the passenger would be liable for these costs, even if represented by a claim agency.
Passengers and claim agencies, on the other hand, try to recover court costs against airlines in
most cases.
As a result, operational stakeholders explained that disrupted flights, to which they believe
that extraordinary circumstances applied (thus a right to compensation does not exist), can be
as costly, when having to be defended in the courts, as disrupted flights to which
extraordinary circumstances did not apply and for which airlines compensated passengers.
Therefore, the exemption afforded by the application of extraordinary circumstances can
sometimes in practice not be as effective as intended, as airlines incur equivalent costs
whether extraordinary circumstances applied or not.
By comparison to the courts, the issues raised by airlines with respect to their interactions
with NEBs (see above and Chapter 5), ADRs or ECCs (see Chapter 0) were not as significant. In
general, airlines and other stakeholder groups welcomed ADR (where it is available) as a
comparatively efficient and effective way for handling disputed claims within the existing
January 2020 | 108
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0135.png
Study on the current level of protection of air passenger rights in the EU | Final Report
framework, though some issues remain, particularly around the consistency of interpretation,
the (non-)binding nature of decisions, and the fact that airlines have to engage with multiple
bodies all over Europe on the same issues.
Right to redress
Clyde & Co provided the study with detailed material on the right to redress specified in
Article 13 of Regulation 261/2004. This detailed review, the legislative background and its
application in practice are presented in Appendix D and are summarised below.
Air carriers have argued that any revision to Regulation 261/2004 should include explicit
provisions for redress from third parties in circumstances where they have caused or
contributed to disruption for which, under the current provision of the Regulation, air carriers
are liable. Air carriers argue that such redress procedures would allow them to meet their
obligations to passengers under the Regulation in the knowledge that a right of recourse exists
against any third party responsible for the underlying flight disruption. Nevertheless, such
procedures present a number of clear practical difficulties, including because:
•
any guaranteed right of recourse would cut across the contractual freedom as between
air carriers and other aviation stakeholders. Any such interference with the prevalent
commercial distribution of risk could have associated economic implications, including on
the level of insurance cover that aviation stakeholders need to carry and consequently
the price that air carriers pay for access to essential service and infrastructure. Any such
increased costs may ultimately be passed on to passengers;
to the extent any aviation stakeholders benefit from immunity from prosecution under
national law, conflict would potentially arise between a right of recourse under the
Regulation and such domestic statutory protections;
issues are likely to arise where flight disruption is attributable to a number of concurrent
or consecutive causes. Unless any revision of the Regulation is able to effectively deal
with apportionment of liability in such circumstances (which seems unlikely), potentially
complex legal disputes could arise;
whilst CJEU jurisprudence means that the Regulation now effectively imposes a regime of
semi-strict liability on the part of the operating air carrier, subject to the relevant
temporal threshold for flight delay or cancellation being met, it is unclear what standard
of proof would apply to an air carrier's claim against a responsible third party. Indeed, the
relevant standard of proof may vary between EU Member States;
noting that the time limit for brining claims under the Regulation is a matter of national
law
56
, air carriers could face a situation where they remain exposed to passenger
compensation claims, but any right of recourse against a responsible third party is time-
barred (unless that was overridden by a revision to the Regulation). Whilst that situation
theoretically exists at present, given the current practical difficulties faced by air carriers
in pursuing recourse action (as discussed above) the issue rarely, if ever, arises;
unless a right of recourse under the Regulation specifically allows the consolidation of
claims, the modest compensation sums payable under the Regulation (assessed on a
passenger-by-passenger basis) may make recourse action unattractive in practice. For
instance, it is understood that in Spain it is difficult to consolidate an air carrier's financial
•
•
•
•
•
56
Joan Cuadrench Moré v Koninklijke Luchtvaart Maatschappij NV, (Case C‑139/11)
January 2020 | 109
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0136.png
Study on the current level of protection of air passenger rights in the EU | Final Report
exposure arising out of multiple passenger claims under a single recovery claim against a
responsible third party.
Impact of air passenger rights cost
The implementation of APR contributes to airlines’ costs, however the way in which it impacts
different carriers varies depending on their business model. The table below provides an initial
view of how key aspects of Regulation 261/2004 affect different business models. We discuss
below some of the most difficult issues highlighted by airlines during the consultation.
Table 4.5: Impact of APR by airline business model
Business
model
Topic
Description
The application of the Regulation to the whole journey, covering all
connections (including those made outside the EU) presents particular
challenges for network carriers who may be selling long-distance,
multi-leg through itineraries that involve several connections. For such
itineraries, a short delay (e.g. one hour) may result in a missed
connection. Given airline schedules, where long-haul flights are often
organised in waves (e.g. one in the morning and one in the evening),
the opportunities to re-route may be limited, resulting in a long (e.g. 10
hours) arrival delay at the destination. Thus, a short delay on one leg,
may generate the maximum compensation liability for the airline (i.e.
€600).
Additionally, where onward (e.g. domestic) connections are being
offered by non-EU partner carriers and these are delayed, airlines
consider that the journey perspective creates extraterritorial issues
(e.g. a connection offered by Thai Airways between Bangkok and an
island, as part of a Lufthansa itinerary from Frankfurt).
The exclusion from the scope of the Regulation of flights arriving at
EU/EEA/CH airports operated by non-EU carriers, is seen by EU carriers
as providing non-EU carriers with an unfair competitive advantage on
those routes.
As a result, EU network carriers:
•
have to set their fares in response to market demand and
competition from non-EU airlines that do not face the same level
of APR costs; and
•
do not have the opportunity to externalise their relevant APR
costs.
Three out of seven responding EU network carriers stated that
Regulation 261/2004 has not had an impact on their fares, due to
competition, particularly on non-EU routes (see above). In this case
Regulation 261/2004 costs impact these carriers’ profitability instead of
passenger fares. The remaining four responding network carriers
agreed, but added that ultimately their fare revenues have to cover
their costs, so there is an indirect effect on fares.
The standard compensation levels defined in the Regulation can be
very high compared to the average fare. In 2018, the average fare for
Ryanair was €39 and for easyJet it was €60. LCCs consider that
compensation should be linked to the fare paid by passengers and not
be punitive, as currently defined.
Low cost carriers stated that the costs of Regulation 261/2004 have led
to both an increase in fares and also a reduction in profitability. This
Flight vs
journey
perspective
Network
carriers
Competition
Impact on
fares
Low cost
carriers
Compensation
levels vs fare
levels
Impact on
fares
January 2020 | 110
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0137.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Business
model
Topic
Description
suggests that part of the relevant costs have been externalised, with
the remaining costs impacting LCCs’ profits.
The issues highlighted above around the flight vs journey perspective of
network carriers are exacerbated in the case of regional carriers
providing feeder connections to network hubs. A small delay on the
flight operated by the regional carrier may result in a missed
connection that generates the maximum compensation liability (i.e.
€600). This liability sits with the regional carrier and is not
commensurate to the revenue it is allocated as part of the connecting
itinerary or indeed the overall scale of its operations.
Regional carriers state that the impact of this is such that it threatens
their viability and risks reducing the connectivity that they offer to
more remote regions.
Fares have been impacted by Regulation 261/2004 costs, as regional
carriers’ exposure can be disproportionate
to the scale of their
operations (see above) and fares revenues ultimately have to cover
costs. However, regional carriers operating Public Service Obligation
(PSO) routes may be limited to the extent that they can increase their
fares, subject to the terms of the PSO.
Regional carriers can be operating in remote, peripheral regions, where
the supporting infrastructure may limit their ability to provide
adequate care and assistance. For instance, on some islands, there can
a limited hotel capacity, especially in peak season
This may be particularly disproportionate for small regional carriers
who do not benefit from economies of scale that larger airlines have in
terms of internal systems and processes, customer relationship
management databases and legal expertise.
Charter carriers operate according to the requirements of the tour
operators they are associated with. Charter carrier capacity will
correspond to capacity on the ground (e.g. hotel-beds) and, as a result,
these carriers do not tend to cancel flights as readily as some other
airlines operating under different business models may do, in order to
avoid knock-on effects to the wider set of linked services that form the
package.
In cases of disruption, charter carriers will tend to tolerate more
reactionary delay than others might before cancelling a given flight.
This is also a function of the potentially limited alternatives available
for accommodating passengers affected by disruption on other flights.
The frequencies operated across a charter airline’s network could be
no more than once a week for certain destinations, while the
availability of alternative routings or capacity on other (competing)
airlines may be limited, particularly during peak season.
Charter carriers suggested that there has been no impact on fares given
the very high level of competition in the price-sensitive leisure market.
Instead, costs impact their profitability.
Flight vs
journey
perspective
Regional
carriers
Impact on
fares
Care and
assistance
Administrative
burden
Charter
carriers
Reactionary
delay
Impact on
fares
Source: Steer analysis of stakeholder consultation responses and airline annual reports
January 2020 | 111
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0138.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Cost of air passenger rights implementation for airports
Regulation 261/2004
The airports that responded to the consultation (21 out of 59 airports contacted, plus ACI-
Europe) found that passengers overall were not well aware of their rights, but that awareness
was improving, in some cases supported by improved access to information online at times of
disruption. However, even passengers who were aware of their rights were often not clear
about which party the obligation to fulfil these rests with.
Regulation 261/2004 does not impose a legal obligation on airports, since passengers’
direct
relationship is with the airlines. Nevertheless, some airports stated that they routinely provide
support beyond their legal obligations to passengers, as not all airlines comply with Regulation
261/2004 in the same way. One airport group stated that visiting airlines which are only
represented by groundhandling agents at the airport tend to underperform in terms of the
provision of care and assistance to passengers compared to airlines that are based at the
airport with airline staff. Uneven and sometimes poor oversight by NEBs also contributes to
the situation, which overall results in operational and financial consequences for airports.
In the case of mass disruptions (i.e. large-scale extreme weather events affecting all flights,
groundhandling or ATC strikes, etc.), airports have put contingency crisis management plans in
place that include preparations for information provision and assistance for passengers (food
and beverages, communications, showers, beds, clothing, medical care, special care for
children and occasionally transport by alternative modes) and involve the participation of
multiple stakeholders active at the airport (airlines, groundhandlers, other suppliers operating
at the airport and national authorities). Mass disruptions and airline insolvencies have
highlighted the limitations of Regulation 261/2004, as airlines have not been able to offer
passengers sufficient assistance and airports have had to step in to assist passengers.
Guidance on reinforcing resilience procedures at airports is coordinated by ACI.
Outside of mass disruptions though, some airports (particularly larger ones) are regularly
involved in providing care and assistance to passengers whose flights have been delayed or
cancelled as a backstop when assistance is not provided by the airlines. Airports may
intervene when airlines fail to fulfil their obligations and/or when passengers have specific
needs that airlines may not have been able to address. For example, passengers affected by
disruption who are connecting and do not have a valid visa for the country in which they are
connecting are not able to leave the airport and so overnight accommodation cannot be
provided. Airports in these cases have provided mattresses, blankets, pillows and toiletries to
such passengers. Other examples in which airports assist passengers directly include when
passengers are in severe difficulty (e.g. have insufficient funds and no access to credit, do not
speak the local language, have not booked their own travel and are unable to use digital
media, require access to medication), are pregnant or elderly and ought to be prioritised in
being seen by an airline representative, or have missed separately booked connecting flights
with different airlines, in which case they fall out of the scope of Regulation 261/2004, but
nevertheless require assistance.
In addition to supporting passengers directly, airports also take steps to support airlines in
fulfilling their duties in a number of ways. Some airports explained that they have made
arrangements for food and beverage outlets to remain open for extended periods, ensuring
that staff and adequate supplies are available to provide services to passengers, or that they
have made airport-operated lounges available to vulnerable passengers. Airport staff have
January 2020 | 112
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0139.png
Study on the current level of protection of air passenger rights in the EU | Final Report
also helped airlines with coordinating local accommodation and extra airport staff have been
deployed to provide information or direct passengers, as sufficient airline staff or
representatives (groundhandling agents) may not be visible/available in the airport to assist
passengers. ACI-Europe stated that the presence of an airline point of contact at the airport,
who is empowered to assist and compensate passengers is key for the effective
implementation of Regulation 261/2004. The presence of airline representatives in baggage
reclaim is also key in ensuring that passengers’ rights with respect to their baggage under the
Montreal Convention can be properly enforced.
As a result of the lack of awareness amongst passengers about which party Regulation
261/2004 obligations sit with, airports often receive claims from passengers which they have
no obligation to address. The degree to which this happens varies by country and airport, and
may amount to a few tens of misdirected claims from passengers for smaller airports to
several thousand for larger ones. Although there is no compensation cost associated with
these, there is an administrative cost in reviewing these claims and responding to passengers
(that it
is not the airport’s responsibility and
that they have to address their claim to the
relevant airline). In the context of Regulation 261/2004, airports also stated that they receive
enquiries about the precise departure and arrival times of flights, often from claim agencies.
Overall, airports incur some costs as shown in Table 4.6 that can be associated with the
protections offered to passengers under Regulation 261/2004, although airports are not in the
scope of the Regulation.
Table 4.6: Overview of airport costs for assisting passengers
Description of cost
Beneficiary
Occurrence
Strictly an airline
obligation under
Reg. 261/2004
Mostly, but not
always (e.g. self-
connecting)
Yes
Cost
Direct cost for
assistance for some
passengers affected
by disruption
Direct cost for
welfare resources
(e.g. mattresses)
Vulnerable passengers
or passengers in severe
difficulty
Passengers whose
airline failed to meet its
obligations.
Passengers whose
needs airlines may not
have been able to
address (e.g. visas when
in transfer)
Passengers affected by
disruption and airlines
who are enabled to
meet their Reg.
261/2004 assistance
obligations
Low
Low
Low
Low
(partly offset by
airports’ own
resilience
planning)
Administrative cost
for coordinating the
availability of food
outlets
(staff/products/etc.)
in the terminal
(outside of normal
operating hours)
Medium
No
Very low
(airport only
incurs the admin
cost
–
outlets
operated by in
terminal
concessions and
third party staff
–
cost of products
covered by extra
sales).
Low
Administrative cost
for communication
Passengers who submit
claims under Reg.
Medium
No
January 2020 | 113
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0140.png
Study on the current level of protection of air passenger rights in the EU | Final Report
with passengers
who misdirected
claims
261/2004 to airports
instead of airlines
Airlines are required
to provide
information to
passengers about
their rights (Article
14). Passengers may
nonetheless
misunderstand
these and contact
airports instead of
the airline.
Medium
No
(indistinguishable
from other
passenger
contact centre
costs)
Administrative cost
for providing
information to
passengers and
claim agencies
about flight
delays/cancellations.
Passengers enquiring
about their flights in
order to collect
evidence to support a
claim with the airline.
Low
(indistinguishable
from other
passenger
contact centre
costs)
Source: Stakeholder consultation, Steer analysis
As shown in the table above, the support provided by airports to airlines and to passengers
generates some incremental costs for airports, however these are small, indistinguishable
from costs that the airport would anyway incur (e.g. passenger contact centre staff) and not
always directly related to Regulation 261/2004. Any costs incurred are generally not charged
directly back to individual airlines, but do form part of airports’
overall cost base, which is
eventually recovered through airport charges (so the costs are effectively passed through).
Meanwhile, the assistance offered in the case of mass disruptions or to passengers who are in
particular difficulty is not directly related to the rights defined by Regulation 261/2004, for
which airports have no obligations in any case, but rather part of
airports’ resilience
planning
and the customer care that they would seek to provide even in the absence of the Regulation.
Regulation 1107/2006
A detailed overview of the situation for PRMs, combining the views of passengers, airports,
airlines and NEBs, is provided in Chapter 2. All relevant stakeholders agreed that the number
of PRMs is increasing strongly, representing an increasingly large proportion of total
passengers, which presents certain challenges to service providers at airports (e.g. staffing and
equipment requirements during peak periods).
The costs of PRM service provision are covered by the PRM charge that all passengers pay on
their tickets. The value of this charge is overseen by the independent supervisory authority
(ISA) competent for airport charges. Revenues raised by the PRM charge are held in a trust
(escrow) account and are used to cover the cost of service provision by airports (or their
subcontractors if the service has been outsourced). Any accumulated revenue or shortfalls in
revenue is rolled over or recovered during the next period for which the charge is set (e.g. a
shortfall in revenue compared to the costs in one year will be recovered through a slightly
higher charge the following year). The costs airports incur for providing PRM services are
passed through to passengers.
January 2020 | 114
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0141.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Positions of operational stakeholders
Airlines
The airline industry stated that it recognises that regulation benefits consumers and the
industry alike by providing clarity and certainty for all stakeholders. In the case of Regulation
261/2004, the airline industry considers that it has generated confusion amongst passengers,
airlines, NEBs and other stakeholders, alongside generating cost, without creating value, since
the practice of commercially denied boarding and cancellations, which the Regulation aimed
to address, is very limited indeed. Costs are seen as disproportionate and the result of the
numerous CJEU rulings which have interpreted Regulation 261/2004 to have a wider scope
than that understood by airlines. Additionally, the increasingly wide definition of extraordinary
circumstances and the burden of proof required to demonstrate that all reasonable measures
have been taken by airlines to avoid the disruption is seen as effectively imposing strict
liability on airlines, at least for cases disputed in the courts.
IATA has proposed the following core principles on passenger protection:
•
Passenger rights legislation should allow airlines the ability to differentiate themselves
through individual customer service offerings, thereby giving consumers the freedom to
choose an airline that corresponds with their desired price and service standards.
Regulations should form the “lowest common denominator” and market forces should be
allowed to determine additional standards of service levels.
Legislation should be clear and unambiguous.
Passengers should have access to information on their legal and contractual rights and to
efficient complaint-handling procedures.
Passenger entitlements enshrined in regulations should reflect the principle of
proportionality and the impact of extraordinary circumstances; there should be no
compromise between safety and passenger rights protection and safety-related delays or
cancellations, such as those resulting from technical issues with an aircraft, should always
be considered as extraordinary circumstances that exonerate air carriers from liability.
The industry recognises the right to re-routing, refunds or compensation and care &
assistance in cases of denied boarding and cancellations, where circumstances are within
the carrier’s control.
The industry recognises the right to refunds and care & assistance to passengers affected
by delays where circumstances are within the carrier’s
control.
•
•
•
•
•
January 2020 | 115
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0142.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Extending on the IATA principle of proportionality, LCCs add that compensation levels ought to
be proportionate to the fare paid by passengers, also reflecting passenger rights in other
modes.
Issues around safety
Safety is paramount in the aviation industry and as a result air travel is the safest form of
transport. Common safety rules constitute the backbone of the EU aviation safety system,
providing a uniform level of requirements for the certification of aircraft, definition of
safety standards, monitoring of aviation safety and consistent application of the rules.
In spite of all precautions and mitigation measures that can be thought of by the
aeronautics and aviation industry, natural and/or man-made events will happen that may
render the operation of an aircraft unsafe: birdstrikes, safety authorities removing the
operating certificates to aircraft at very short notice (such as the B737 MAX grounding on
12 March 2019 in Europe), very unruly passengers in flight, volcanic ash cloud, aircraft
being hit by a groundhandling vehicle, etc. The highly effective aviation safety system in
place in Europe (and globally) relies in part on a safety culture of promptly reporting
technical faults.
When such events happen, the safety system in place in Europe makes airlines cancel
flights, directly affecting passengers. In these circumstances, airlines will classify the event
as “extraordinary circumstances” as they have assessed that
it is beyond their control.
However, NEB and CJEU rulings do not always side with the airlines: for instance, the CJEU
classified as extraordinary circumstances an aircraft rendered unsafe when hit by birds
(Pěsková
v. Travel Service a.s, Case C-315/15,
4 May 2017) but not when hit by a
groundhandling vehicle (Siewert v. Condor Flugdienst GmbH, Case C-394/14, 14 November
2014).
Whilst there is no evidence to date that flight safety has been compromised by Regulation
261/2004 or that it has been a contributing factor, European airlines, and more so the
regional ones as they are disproportionally affected, are concerned that the financial
burden of paying compensation for events that took place for safety purposes may create
internal decision biases and delay the reporting of technical faults on aircraft. In Canada,
this issue has been recognised in the recent air passenger rights legislation by the
authorities who have specifically not given passengers rights to compensation for
“situations within airline control but required for safety purposes” and “situations outside
airline control including conditions that makes the safe operating of the aircraft
impossible, medical emergency, collision with wildlife, a manufacturing defect in an
aircraft that reduces the safety of passengers and that was identified by the manufacturer
of the aircraft concerned, or by a competent authority, instructions from air traffic control,
airport operation issue,
etc”.
January 2020 | 116
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0143.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airports
In the wider context of air passenger rights, ACI-Europe and some airports raised the need for
there to be clear and consistently applied rights regarding minimum allowable cabin baggage,
while respecting individual airlines’ rights to apply their own specific rules. According to ACI-
Europe, unreasonable restrictions on cabin baggage allowances by some airlines undermine
the passenger experience. The lack of recognised passenger rights in relation to this issue has
led to very restrictive and changing practices by some carriers, who limit passengers to
carrying a single piece of hand baggage on-board and charging for any additional items, such
as airport shopping. Such restrictions cause distress to passengers who are asked to choose at
boarding gates between paying penalties or forfeiting possessions. Additionally, the
inconsistency of such airline practices discourages passengers (including those not travelling
with an airline with restrictive rules) from shopping at airports, which impacts airports’
commercial revenues. In 2017, non-aeronautical revenues accounted for 41% of total airport
revenues on average.
Summary of findings
Our analysis indicates that the cost generated for airlines by the implementation of Regulation
261/2004 has grown significantly since 2011. The average cost per passenger has increased at
a CAGR of +13.6% from €1.8 in 2011 to €4.4 in 2018, driven by a combination of increased
levels of disruption and increased claim rates for compensation. The increase in disruption
comes mainly in the form of delays (1.0% of passengers in 2011, 1.5% of passengers in 2018)
and corresponds with the higher levels of ATFM delay generated in the single European sky,
which although not caused by airlines, can end up being attributed to them as, for example,
reactionary delay. The increase in the claim rate (8% in 2011, 38% in 2018) has been driven
increased awareness among passengers of their rights, the activity of claim agencies and the
evolving interpretation of extraordinary circumstances, which has become narrower (e.g.
through the Siewert ruling (Case C-394/14))
and the Regulation’s scope,
which has become
wider (e.g. the Wegener ruling (Case C-537/17)).
The cost of Regulation 261/2004 forms a relatively small part of airlines’ cost base, however,
as the overall cost of this Regulation has increased, this share has also grown and in the case
of LCCs has overtaken the cost of marketing and distribution. At the same time, airlines’
average yield (i.e. fare) has fallen and in 2018, the estimated average cost per passenger
generated by Regulation 261/2004 represented nearly 3.0% of the yield, up from 1.0% in
2012. While the average cost per passenger is not very high (€4.4 in 2018), as costs are spread
over a very large number of passengers, the average cost of Regulation 261/2004 for
passengers who are disrupted is high, representing over 90% of
airlines’ yield on average in
2018. The Regulation was designed for this cost to be high to discourage airlines from taking
commercial actions that would inconvenience passengers (e.g. overbooking), however, as
more operational disruptions are also covered (e.g. technical defects inherent in the normal
exercise of the activity of the air carrier), the cost of passengers affected by disruption may
generate disincentives for airlines to actually operate severely delayed flights and incur
operating costs in addition to the disruption costs.
It is important to recognise that in the absence of any EU legislation, airlines would probably
offer, on their terms, some aspects of consumer protection voluntarily, as seen in other
countries that do not have legislative frameworks protecting air passenger rights. In such a
case, airlines would still then voluntarily incur some relevant costs. The incremental cost of
Regulation 261/2004 is just part of the total costs described above (i.e. incremental costs is
January 2020 | 117
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0144.png
Study on the current level of protection of air passenger rights in the EU | Final Report
equal to total costs less voluntary costs) and we estimated that it represented 51% of the total
costs for 2018 (see paragraph 4.12 and Appendix C).
In addition to the direct costs for compensation, care and assistance, and reimbursement and
re-routing that airlines incur as a result of implementing Regulation 261/2004, airlines also
incur administrative costs and legal costs for handling passenger claims, as well as costs for
measures taken to mitigate the risk of disruption. Based on stakeholder inputs, administrative
and legal costs were found to be up to 0.6% of the overall cost base in 2018, while the cost of
mitigation measures (e.g. lease and maintenance costs for spare aircraft) contributed
approximately 0.4% to the overall cost base. The extent to which all of these costs may be
attributed to Regulation 261/2004, as opposed to normal steps taken to ensure a level of
operational resilience is not straightforward to evidence.
One of the drivers of airlines’ administrative and legal costs is the fact that they need to
interact with individual passengers, a very large number of bodies (NEBs, ECCs, ADRs, courts)
as well as claim agencies, which generates complexity and an additional burden, particularly
where the same claim may simultaneously be submitted in several ways by a passenger (such
as directly, through an ADR, and via a claim agency). Of these interactions, the one is of
greatest concern for airlines is the courts, as these generate a lot of uncertainty, complexity
and cost. By comparison to the courts, airlines did not raise any significant concerns with
respect to their interactions with NEBs, ADRs or ECCs.
A key issue for the airlines is the fact that the right to redress defined in Regulation 261/2004
is not guaranteed and as a result they are not able to recover costs for care and compensation
that they might have incurred from third parties (airports, ANSPs, groundhandlers) where
these may have contributed to the disruption. The Regulation’s costs then are either
internalised by airlines, impacting their profitability, or are externalised as an increase in fares.
Airlines provided mixed views as to the extent to which fares have been impacted by
Regulation 261/2004. Seven airlines (out of the 17 that commented on this issue) indicated
that air fares have on average been impacted by costs of Regulation 261/2004, as all costs
have to be covered by revenues, although the impact may not be direct on a route-by-route
basis. Ten airlines (out of the 17 that commented on this issue) indicated that air fares are
generally dictated by the market and that the impact of the additional costs is on profitability
(and investment opportunity), resulting in a restriction in the number of routes operated and
a reduction in connectivity offered. The overall impact of the Regulation on airlines varies
according to their business model and the market they operate in, with network carriers, low
cost carriers, regional carriers and charter carriers all highlighting different aspects of the APR
protection provisions that affect them the most.
Regulation 261/2004
does not impose a legal obligation on airports, since passengers’ direct
relationship is with the airlines. Nevertheless, some airports stated that they provide support
beyond their legal obligations to passengers, as not all airlines comply with Regulation
261/2004 in the same way. Airports also take steps to support airlines in fulfilling their duties
in a number of ways (e.g. through making arrangements for food and beverage outlets to
remain open for extended periods).
The support provided by airports to airlines and to passengers generates some incremental
costs for airports, however these are small, indistinguishable from costs that the airport would
anyway incur (e.g. passenger contact centre staff) and not always directly related to
Regulation 261/2004. Any costs incurred are generally not charged directly back to individual
January 2020 | 118
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0145.png
Study on the current level of protection of air passenger rights in the EU | Final Report
airlines, but do form part of airports’ overall cost base, which is eventually recovered through
airport charges.
The costs airports incur for providing PRM services are passed through to passengers in the
form of the PRM charge that all passengers pay on their tickets. The value of this charge is
overseen by the independent supervisory authority (ISA) competent for airport charges.
Revenues raised by the PRM charge are held in a trust (escrow) account and are used to cover
the cost of service provision by airports (or their subcontractors if the service has been
outsourced). Any accumulated revenue or shortfalls in revenue is rolled over or recovered
during the next period for which the charge is set (e.g. a shortfall in revenue compared to the
costs in one year will be recovered through a slightly higher charge the following year).
January 2020 | 119
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0146.png
Study on the current level of protection of air passenger rights in the EU | Final Report
5
Monitoring and enforcement
processes under Regulation (EC)
No 261/2004
Introduction
This chapter provides an overview of the monitoring and enforcement processes under
Regulation (EC) 261/2004, as well as the monitoring of the application of other APR legislation
including Regulation (EC) 1107/2006 and the Montreal Convention. The analysis relies on desk
research, consultation of NEBs in all EU/EEA/CH States, inputs from other stakeholders and
horizontal analysis. Member State fiches summarising the situation with respect to the
monitoring and enforcement of APR in are provided in Appendix E.
Overview of enforcement bodies
Regulation (EC) 261/2004 specifies that each Member State shall appoint a NEB that can
ensure that the rights of passengers are respected. Passengers are able (and encouraged
through Commission communications) to complain to the NEBs about alleged infringements,
but, as clarified in the Commissions Interpretative Guidelines
57
and ruled on by the CJEU in
cases C-145/15 and C-146/15
58
, NEBs are not required to act on such complaints in individual
cases
–
their sanctioning role consisting of measures to be adopted in response to the
infringements which they identify in the course of their general monitoring activities, rather
than enforcement actions taken against carriers to compel them to pay compensation in
individual cases. This means that although passengers may complain to a NEB, their complaint
may not be addressed in a way that ensures that they received any compensation they may be
due.
Nevertheless, Member States have been able to adopt legislation which requires the NEBs to
adopt measures in response to individual complaints. As a result, different complaint handling,
monitoring, enforcement and sanctioning approaches exist across the EU/EEA/CH NEBs.
Additionally, NEBs for Regulation (EC) 261/2004 may have also been appointed as the
competent bodies for Regulation (EC) 1107/2006 and/or the Montreal Convention.
This chapter provides an overview of:
•
•
The competence of the NEBs with respect to Regulation (EC) 261/2004, Regulation (EC)
1107/2006 and the Montreal Convention and the type of organisation they are;
The NEB complaint-handling processes, the number of complaints processed, their ability
to address individual complaints and the timeframes for doing so;
57
Interpretative Guidelines 2016/C 214/04:
https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52016XC0615%2801%29
58
Ruijssenaars e.a., ECLI:EU:C:2016:187
January 2020 | 120
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0147.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
NEBs approach to monitoring and enforcement of Regulation (EC) 261/2004 including
whether their decisions are binding and their power to impose sanctions; and
other activities undertaken by NEBs, such as inspections of airlines undertaken at airports
in relation to Regulation (EC) 261/2004 and airport audits in relation to Regulation (EC)
1107/2006.
Competence
The competence of each of the NEBs for the different Member States is summarised in Table
5.1. We observe that the organisation of enforcement bodies differs widely between
countries. Some Member States, such as the Nordic countries have multiple National
Enforcement Bodies responsible for monitoring and/or enforcing Regulation 261/2004,
whereas in most other Member States only one National Enforcement Body is in charge of air
passenger rights. The majority of NEBs is responsible for both Regulation 261/2004 and
1107/2006, however, sometimes the enforcement of the PRM Regulation is delegated to
another body within the Member State, as is the case for Hungary and Latvia.
In 26 countries the competence for enforcement of Regulation 261/2004 and Regulation
1107/2006 is concentrated in one National Enforcement Body. For seven Member States,
there are different Enforcement Bodies for the different regulations. It should be noted that
Finland and Sweden have multiple NEBs and are therefore counted twice, as one NEB in each
Member State is responsible for both regulations while the others are responsible either for
Regulation 261/2004 or the PRM regulation.
Table 5.1: Summary of competence for NEBs
Member State
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Regulation 261/2004
Regulation 1107/2006
SPF Mobilité & Transport
Ministry of Transport, Information Technologies and Communications
Czech Civil Aviation Authority
Danish Transport, Construction and Housing Authority*
Luftfahrt-Bundesamt (LBA)
Consumer Protection and Technical Regulatory Authority (CPTRA)*
Commission for Aviation Regulation (CAR)
Hellenic Civil Aviation Authority
Agencia Estatal de Seguridad Aérea (AESA)*
Direction générale de l'aviation civile (DGAC)
Croatian Civil Aviation Agency
L’Ente Nazionale per l’Aviazione Civile (ENAC)
Department of Civil Aviation
Consumer Rights Protection Centre
Civil Aviation Agency of Latvia
(CRPC)*
Lithuanian Transport Safety Administration (LTSA)
Ministère de l'Économie
Direction de l'Aviation Civile
Ministry for Innovation and Technology
Equal Treatment Authority
(ITM) & Consumer Protection Bodies
Malta Competition and Consumer
Civil Aviation Authority
Affairs Authority
Human Environment and Transport Inspectorate (ILT)
APF - Agentur für Passagier- und Fahrgastrechte*
Commission on Passengers' Rights & Civil Aviation Office (CAO)
Autoridade Nacional da Aviação Civil (ANAC)
January 2020 | 121
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0148.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Member State
Romania
Slovenia
Slovakia
Finland
Regulation 261/2004
Regulation 1107/2006
Sweden
United Kingdom
Iceland
Norway
Switzerland
Ministry of
National Authority for Consumer
Labor, Family and Social Protection
Protection (ANPC)*
National Authority for People with
Disabilities
Civil Aviation Agency
Slovak Trade Inspectorate*
Consumer Disputes Board*
Traficom
Finnish Competition and Consumer
Authority
Swedish Consumer Agency (SCA)
National Board for Consumer Disputes
(ARN)*
Civil Aviation Authority
Icelandic Transport Authority (ICETRA)
Civil Aviation Authority
Federal Office of Civil Aviation (FOCA)
*NEBs which also are ADR bodies (or in the case of Spain are in the process to become an ADR)
Source: Steer analysis of stakeholder consultation responses
Only a few NEBs also enforce the Montreal Convention which is usually not monitored or
enforced explicitly, but just forms part of the general civil legal framework. Table 5.2 lists the
NEBs that are also the enforcement bodies for the Montreal Convention, usually where they
are responsible for wider consumer rights and therefore also cover luggage. We note that it
can be confusing for passengers to know that NEBs will only enforce some of their rights (such
as delay or cancellations) but not luggage.
Table 5.2: Enforcement of the Montreal Convention
Member State
Bulgaria
Greece
Latvia
Romania
Slovakia
Finland
Sweden
United Kingdom
Enforcement body for Montreal Convention
Ministry of Transport, Information
Technologies and Communications
Hellenic Civil Aviation Authority
Consumer Rights Protection Centre (CRPC)
National Authority for Consumer Protection
Slovak Trade Inspectorate
Consumer Disputes Board & Finnish
Competition and Consumer Authority
National Board for Consumer Disputes (ARN)
Civil Aviation Authority
Comments
NEB for Regulation 261/2004 &
1107/2006
NEB for Regulation 261/2004 &
1107/2006
NEB for Regulation 261/2004
NEB for Regulation 261/2004
NEB for Regulation 261/2004 &
1107/2006
ADR body and NEB for Regulation
261/2004
NEB for Regulation 261/2004
NEB for Regulation 261/2004 &
1107/2006
NEB for Regulation 261/2004 &
1107/2006
NEB for Regulation 261/2004 &
1107/2006
Iceland
Norway
Icelandic Transport Authority
Civil Aviation Authority
January 2020 | 122
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0149.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Source: Steer analysis of stakeholder consultation responses
Type of enforcement body
The responsibility for monitoring and enforcing air passenger rights lies with different bodies,
depending on the national legal situation in which the NEB has been nominated, as well as the
existing framework on general consumer rights.
For most Member States, the Civil Aviation Authority has been set up to be the NEB enforcing
air passenger rights, including in Belgium, Greece, Portugal, France and the UK. In Sweden, a
Consumer Arbitration Board, which is also the recognised ADR, undertakes the enforcement
of Regulation 261/2004 alongside a Consumer and Competition Authority.
An overview of the different type of enforcement body in each Member State is provided in
Table 5.3.
Table 5.3: Summary of type of enforcement body
Civil Aviation
Authority
Consumer
Arbitration
Body
Consumer
and/or
Competition
Authority
Ministry of
Economics
Member State
Equality Body
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261
261 & 1107
1107
261
1107
261
1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261 & 1107
261
1107
January 2020 | 123
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0150.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Member State
Civil Aviation
Authority
Consumer
Arbitration
Body
Consumer
and/or
Competition
Authority
Equality Body
Ministry of
Economics
Slovenia
Slovakia
Finland
Sweden
United Kingdom
Iceland
Norway
Switzerland
Total number of
NEBs for
261/2004 at EU
level
Total number of
NEBs for
1107/2006 at EU
level
261 & 1107
261 & 1107
261 & 1107
261
261
261 & 1107
261 & 1107
261 & 1107
261 & 1107
24
3
6
-
1
261
261 & 1107
23
1
5
2
-
Source: Steer analysis of stakeholder consultation responses
Complaint handling
Statistics
The number of complaints received by each NEB in 2018 is shown in Table 5.4. The numbers
shown are the total number of complaints received and include some complaints that are not
legitimate and are subsequently not handled by the NEB, as well as some that are forwarded
to other NEBs. Furthermore, for Member States where multiple NEBs exist, some double
counting may occur as complaints get transferred between the different entities.
Most NEBs interviewed (Croatia, Denmark, Finland, Greece, Norway, Spain, and Switzerland)
have noted substantial increases in the number of complaints received since 2011, which, they
themselves largely attribute to an increased level of awareness on rights to compensation
from passengers, rather than an increase in traffic or a decrease in service quality provided to
passengers for instance. Particularly high numbers of complaints were observed in 2015,
related to the van
Der Lans vs KLM ruling in favour of the passenger on the issue of ‘technical
problems’ by CJEU
59
. Figure 5.1 highlights how the volume of complaints received by the NEBs
that provided data on this increased in 2015 compared to 2014. The change in the number of
complaints was substantially higher than passenger volume growth in 17 out of the 25 NEBs
that provided relevant data, especially in Croatia, the Netherlands, Slovakia and Sweden.
59
http://curia.europa.eu/juris/liste.jsf?num=C-257/14
January 2020 | 124
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0151.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 5.1: Development of complaint numbers following the CJEU ruling in 2015
Source: Steer analysis, stakeholder consultation, Eurostat
For a few NEBs (Malta, The Netherlands, and the UK) that note a decrease in the number of
complaints in recent years, this is primarily related to an administrative change in the way that
complaints are handled. The Dutch NEB informed us that because it has no power to enforce
individual complaints and refer passengers to court, the number of complaints it receives has
decreased over the years.
The extent to which the volume in complaints has increased at a much faster rate than the
total air traffic across Europe since 2012 is highlighted in Figure 5.2. The number of complaints
received by NEBs has more than tripled in the past seven years, whereas the total number of
air passengers in the EU has increased by 35% in the same time period.
January 2020 | 125
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0152.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 5.2: Index (2011=100) of growth in the complaint volume compared to growth in passengers
350
Growth in NEB Complaints vs. Passenger Growth
(Index: 2011 = 100)
328
300
250
200
150
135
100
50
0
2011
2012
2013
2014
2015
2016
2017
2018
Total NEB Complaints
Total Air Passengers in EU
Source: Steer analysis, stakeholder consultation, Eurostat
The trend for the number of complaints received by each Member State is shown in Figure
5.3. In general, the complaint volume has increased across Europe, but each Member State
handles significantly different volumes, for instance 13,900 in Portugal in 2018 compared to
around 7,000 in Switzerland and 500 in Luxembourg in the same year. Understandably, the
differences are driven by the size of the market, whether it is predominantly inbound or
outbound, and the number of carriers based in that MS. The chart also shows how different
types of enforcement can impact the number of complaints handled by NEBs. In the UK for
instance, ADR was introduced in 2015 which led to a significant reduction in the number of
complaints. In Spain, the NEB introduced an online complaint form on the AESA website in
2018 which resulted in a surge in the number of complaints received. More detail on the
relevant and recent developments for each Member State is provided in the country fiches in
Appendix E.
January 2020 | 126
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0153.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 5.3: Growth in the complaint volume across Member States
35
Total number of complaints received by Member State (000s)
30
25
20
UK
ES
15
10
PT
FR
CH
IT
DE
5
0
2011
2012
2013
2014
2015
2016
2017
2018
Source: Steer analysis, stakeholder consultation
January 2020 | 127
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0154.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Based on complaint statistics provided by the NEBs during the stakeholder consultation, the
33 NEBs covered by this analysis received a combined total of 128,352 complaints in 2018
60
. A
proportion of complaints will be double counted where passengers contact several NEBs, or
several NEBs operate within a single Member State. Based on data provided from 15
countries, approximately 70.8% of complaints the NEBs receive are legitimate, meaning they
are found to be in scope of Regulation 261/2004 and can be handled by the NEB that the
complaint was submitted to. The remaining 29.2% of complaints were either transferred to
the competent Member State or the passenger was informed that they were not eligible for
compensation.
Information on the outcome of complaints was provided by seven NEBs only. 68% of
complaints received by those NEBs were made in favour of the passenger regarding
compensation. Some NEBs collect statistics on airline’s compliance
with their decisions, for
instance Spain, Italy, Lithuania, Austria, and Switzerland. In some instances, this may be
facilitated by the binding nature of the NEB’s decisions. Other NEBs track compliance by
requesting the airline to send them a confirmation of compensation payment. However, most
NEBs hold few statistics beyond the total number of complaints and the nature of the
complaint itself.
Process
Steps
Most NEBs are second order bodies which require passengers to contact the airline initially
with their complaint before submitting a complaint with the NEB. In Ireland, passengers can
contact the NEB directly (as it assesses that there is no legal requirement for passengers to
contact the airline first, the NEB cannot refuse to engage with passengers on this basis),
however passengers are still encouraged to submit a claim to the airline first. For PRM issues
under Regulation 1107/2006, passengers can often contact the NEB directly.
Once the passenger has contacted the airline and either receives no or an unsatisfactory
response (as far as the passenger is concerned) on their complaint, they can turn to the NEB.
Many NEBs follow the guidelines published by the European Commission that allow the
airlines eight (six initially plus two following a reminder) weeks for a response. However, in
some Member States the timescales are dictated by national regulation. In Croatia for
instance, the airlines only have 30 days to respond to passengers before passengers can
submit a complaint to the NEB. The Croatian NEB has informed us that a high proportion of
the cases they receive are not a result of the airline refusing to pay compensation but rather
the airline being unable to respond to the passenger in the pre-defined timeframe.
Passengers can often submit
their complaint online on the NEB’s website. However, the
process differs significantly between Member States. The Spanish NEB has recently introduced
a form on its website which allows passengers to submit a complaint online. As a result, the
NEB has seen the volume of complaints it receives increase sharply. More detail on the
specific process for each Member State is included in the country fiches in Appendix E.
Some NEBs, for example the Dutch enforcement body and SCA, one of the Swedish NEBs, have
set up information centres, similar to a hotline, as a first point of contact to allow passengers
to call and clarify initial questions. The approach is meant to act as an initial filter to avoid
60
Excluding data from Poland as no statistics on complaint numbers has been received.
January 2020 | 128
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0155.png
Study on the current level of protection of air passenger rights in the EU | Final Report
receiving complaints from passengers that have not yet contacted the airline or have
complaints that are outside the scope of Regulation 261/2004.
Most NEBs have informed us that they use internal databases to log complaints with unique
reference numbers. However, although this should in theory allow for statistical analysis of
the complaints received, not many NEBs use this data to undertake wider trend analysis of the
type of complaints received. The Belgian NEB has stated that they are still in the process of
setting up their systems to allow for statistical analysis of complaints.
If complaints are found to be legitimate, the NEB will start an investigation by collecting
evidence from the carrier, especially in cases where extraordinary circumstances have been
claimed. The NEB will reject complaints that are not in scope of the regulation, for instance
delays below the defined threshold of three hours.
27 NEBs out of 34 are able to handle individual passenger complaints and will issue a decision.
This means than in six countries, including Germany the second largest EU aviation market,
passengers cannot expect redress from interaction with the NEB. In both Finland and Sweden,
where multiple NEBs exist, the Consumer and Competition body, which passengers can
contact directly, does not deal with the enforcement of individual complaints but is
responsible for the wider enforcement of the Regulation. This is explained further in the
following section on enforcement.
Most NEBs have confirmed that complaints for which they are not competent are forwarded
to the correct NEB alongside a summary translation of the case. Some NEBs provide the
alternative NEB’s contact details to passengers, for passengers to contact the correct NEB
directly
–
if the passenger requires help in making contact with the competent NEB, then the
original NEB may forward
the complaint on the passenger’s behalf at the passenger’s request.
The full list of National Enforcement Bodies for Regulation 261/2004
61
and Regulation
1107/2006
62
is published by the European Commission. Links to these lists, which have been
recently updated, are available on most NEBs websites. However, when contacting the
relevant NEBs as part of the stakeholder consultation we have noticed discrepancies for some
of the NEBs listed, including Belgium, Hungary and Lithuania.
The Hungarian NEB responsible for Regulation 261/2004 as well as the Belgian NEB looking
after the enforcement of Regulation 1107/2006 have informed us that the lists published by
the European Commission on its website which provides details of all NEBs responsible for
both Regulation 261/2004 and 1107/2006 (EC lists) only provide a simplified picture for
passengers. Both member states are separated into regions with individual enforcement
bodies responsible for the different regions each. In Belgium, different enforcement bodies
exist for Brussels-Capital, the Flemish region and the Walloon region. The Belgian NEB SPF
works at a federal level with its scope technically covering Brussels airport only. However, to
facilitate the situation for passengers and avoid confusion, SPF does accept claims that
concern a PRM issue that occurred at an airport in one of the other regions. It will forward
complaints to the relevant region, if necessary, and is thus also listed as the only 1107 NEB for
Belgium on the European Commission’s NEB list.
In Hungary, Ministry for Innovation and
Technology (ITM) is listed as the NEB on the EC website even though it does not undertake
individual enforcement. Individual enforcement in Hungary is done by the Consumer
Protection Body of the relevant region (three, determined by the territory of the airports).
61
62
https://ec.europa.eu/transport/sites/transport/files/2004_261_national_enforcement_bodies.pdf
https://ec.europa.eu/transport/sites/transport/files/2006_1107_national_enforcement_bodies.pdf
January 2020 | 129
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0156.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Passengers can contact the relevant CPB directly with their complaint or alternatively contact
the ITM which will forward the complaint to the competent NEB. In Lithuania, all functions
have been transferred from the CAA to the LTSA. However, the CAA is still listed as the
responsible NEB.
Some NEBs, including the Austrian APF have also voiced frustration at the difficulties for
passengers to identify the competent enforcement body. The Austrian NEB has stated that it
works on forwarded complaints, even if no translation is provided. Additionally, the Austrian
NEB adopts a very flexible approach to ensure a high level of consumer-friendliness by
handling complaints in multiple languages that are covered by NEB staff (e.g. English, German,
French and Spanish). The Spanish NEB has furthermore noted that the NEB-NEB cooperation
requires a high number of resources as well as can be problematic as a result of language and
translation issues.
Hardly any NEBs use the Consumer Protection Cooperation (CPC) network (see Chapter 6),
even when they are signed up to it. This was a finding already noted in 2011 and the situation
seems largely unchanged since then. Some NEBs note that they think that the increase in
complaint volume leaves them with no time to make use of the network while others state
that it was more efficient to contact each other directly where assistance was required or to
forward complaints.
NEBs generally indicate positive experiences with using the Wiki platform to exchange
information and clarify questions, however some NEBs have stated that
–
as with any such
platform
–
its value depended on its content and required the commitment of participants to
dedicate some resources to it.
The cooperation of NEBs with the ECC-network is generally good, as cross-border complaints
are forwarded to the relevant ECC body. The majority of NEB websites and/or published
passenger information such as posters and leaflets at airports also include links to the relevant
body of the ECC-Net. Some NEBs foster the NEB-ECC cooperation through regular meetings
where complaint-handling, airline compliance, and general trends are discussed, for instance
the Danish, Bulgarian and Slovakian NEBs.
In relation to the communication with airlines, specifically the Maltese NEB noted that it
would help to have a direct contact at the airlines to improve their communications. The NEB
has
to use the general online form provided on the airline’s website and, as they are not the
Civil Aviation Authority, some airlines do not immediately realise the inquiry is from the NEB.
Table 5.4: Overview of individual complaint handling process for NEBs
Member State
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Number of
complaints
received in 2018
3,887
1,193
1,455
3,115
5,134
475
2,319
Ability to handle
individual
complaints







First or second order body
Second order
Second order
Second order
Second order
Does not address
individual complaints
Second order
First order
Complaint
forwarding







January 2020 | 130
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0157.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Member State
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
Slovenia
Slovakia
CDB
Traficom
FFCA
SCA
Sweden
ARN
United Kingdom
Iceland
Norway
Switzerland
Number of
complaints
received in 2018
2,456
34,279
7,717
437
6,033
350
1,527
421
543
370
102
1,529
5,462
10,281
13,885
1,948
337
260
1481
285
-
442
3212
4,929
1,180
4,141
7,167
Total complaints
(incl. double
counting): 128,352
Ability to handle
individual
complaints






















Able to handle
individual
complaints: 28 NEBs
First or second order body
Second order
Second order
Second order
Second order
Does not address
individual complaints
Second order
Second order
Second order
Second order
First order
Second order
Does not address
individual complaints
Second order
Second order
Second order
First order
Second order
Second order
Second order
First order
Does not address
individual complaints
Second order
Second order
Second order
Second order
Second order
Second order
Second order bodies: 26 NEBs
First order body: 4 NEBs
Does not address individual
complaints: 4 NEBs
Complaint
forwarding












TBC
TBC










Complaint
forwarding: 27
NEBs
Finland
EU-wide
Note:
= Yes,
= No
Source: Steer analysis of stakeholder consultation responses
January 2020 | 131
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0158.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Timelines
As shown in the table below, the length of the complaint handling process differs greatly
between NEBs. The timescales are driven by the volume of complaints received, the number
of resources available, the complexity of the cases and the processes in place.
Table 5.5: Time frame for complaint handling process
< 3 months
Number of NEBs
10
3-6 months
15
6-12 months
6
12-18 months
1
>18 months
1
Source: Steer analysis of stakeholder consultation responses
Most NEBs suggested that the process takes between three to six months, although this may
be longer in some specific cases. Details on the length of complaint processing for each
individual NEB are provided in the country fiches in Appendix E.
Enforcement
Complaint-based vs system-wide enforcement
As introduced above, not all NEBs are able to handle individual complaints. A few, including
the NEBs in Germany and the Netherlands accept individual complaints from passengers but
have limited or no enforcement power for individual compensation for the passenger and will
use the information to establish cases of general non-compliance against airlines instead (i.e.
system-level enforcement as opposed to individual complaint enforcement). As such, it is
possible to differentiate between enforcement powers on a complaint level and a wider
system level.
The Greek NEB is a complaint-level enforcement body. Following an investigation of a
passenger complaint, the NEB issues a decision on the compensation, if any, that should be
paid by the carrier. In the case of Greece, this decision is legally binding. However, based on
the individual complaint handling process, the Greek NEB does not additionally collect or
monitor information on compliance with the Regulation by carrier to undertake additional
system level enforcement.
Contrastingly, the NEB in Germany does not issue decisions on compensation for individual
complaints
but monitors carriers’ compliance with Regulation 261/2004 based on the number
of complaints received from passengers. If the German NEB finds a carrier to be systematically
infringing on the air passenger rights provisions defined in the Regulation, it will take
enforcement action against the carrier.
As shown in Table 5.6, the enforcement powers and processes of NEBs vary greatly across
Europe. Whereas some NEBs only undertake enforcement on a case-by-case basis, such as
Belgium, Denmark, and Malta, and some only undertake system-level enforcement, including
Germany, The Netherlands, and Italy. A third group of NEBs, including Spain, Ireland, Latvia
and the UK, enforce both on a complaint level but additionally monitor system level
compliance of carriers and are able to enforce cases of repeated and systematic infringement.
In terms of decisions, apart from a few exceptions, (Denmark, Greece, Iceland, Ireland) most
NEBs will only provide the passenger with a non-binding recommendation. This means that in
the case where the NEB finds in favour of the passenger, it cannot for instance compel the
airline to pay compensation or that the NEB decision may not be considered as a valid
document to bring to court.
January 2020 | 132
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0159.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Due to the variety of enforcement systems alongside multiple options to claim for
compensation, such as claim agencies, ADR bodies and NEBs, the enforcement bodies hold
limited or no statistics on the proportion of passengers that are eligible but do not claim for
compensation. For many NEBs, the resource capacity to take on monitoring and enforcement
on a wider system-level, is limited by both the volume of individual complaints that they are
handling as well as the lack of available information for effective oversight. Airlines that
consistently do not comply with the passenger rights set out in the regulation will often not be
prosecuted beyond a (non-)binding statement on compensation entitlement.
Table 5.6: Overview of enforcement powers of NEBs for Regulation 261/2004
Individual complaint handling
Member State
Enforcement
of individual
complaints
(From
April
2019)
CDB
Finland
Traficom
FFCA



Ability to issue
legally-binding
decisions




n/a




(From end of
2019)

n/a







n/a






n/a
Enforcement at
system-level






(in process to amend
civil aviation code to
allow more powers)








No information








Airlines’ compliance with
enforcement (individual or
system)
No statistics
No statistics
No statistics
Good compliance
Good compliance
No statistics
No statistics
No statistics
93%
Good compliance
Compensation paid in 50% of
cases before opinion is
issued
60%
No statistics
No statistics
94%
No statistics
No statistics
No statistics
No statistics
96%
No statistics
No statistics
No statistics
80%
No statistics
No statistics
No statistics
No statistics
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
Slovenia
Slovakia
January 2020 | 133
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0160.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Individual complaint handling
Member State
Enforcement
of individual
complaints

(as part of ADR
board only)

(only
where airline is
not signed up
to UK ADR)
Enforcement of
individual
complaints: 26
NEBs
Ability to issue
legally-binding
decisions




n/a

Legally-binding
decisions: 8 NEBs
Enforcement at
system-level
Airlines’ compliance with
enforcement (individual or
system)
No statistics
No statistics
No statistics
No statistics
No statistics
90%
Sweden
SCA
ARN






Enforcement at system-
level: 19 NEBs
United Kingdom
Iceland
Norway
Switzerland
EU-wide
Note:
=
Yes,
= No
Sanctions
Similar to the differences related to the type of enforcement power, the ability to issue
sanctions varies between NEBs. Sanctioning powers are a result of the existing national legal
context in each Member State.
Some NEBs are not able to issue sanctions directly but instead have to refer the individual
case to courts in the case of non-compliance. In the UK, the NEB can issue an enforcement
order against a carrier which can then be taken to the court in case of non-compliance, where
a fine may be issued against the carrier. A similar situation exists in Italy.
A number of NEBs have noted problems with issuing sanctions as a result of difficulties to
provide the required evidence in court under their national legal system. For example,
Switzerland noted that the Regulation is difficult to enforce under the penal law framework
applicable there, as the burden of proof for the lack of care and assistance often cannot be
provided retrospectively.
Similar issues relating to the difficulty to issue sanctions have been noted in a number of
Member States, including Lithuania, Malta, and the Netherlands. The Maltese NEB for
instance notes that it can only sanction carriers with a registered office (“headquarter”) in
Malta. Cases for airlines that do not would have to be referred to the competent NEB in the
Member State where the airline is registered for sanctioning, if possible.
The maximum values for sanctions differ significantly between Member States, ranging from a
fine of
€73
per day of not adhering to a NEB decision in Iceland to a fixed fine
€1.5
million in
Hungary
63
.
63
This is the maximum legal fine available in Hungary which would likely only be imposed in cases of
grave and repeated non-compliance.
January 2020 | 134
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0161.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 5.7: Overview of sanctioning power of NEBs for Regulation 261/2004
Member State
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
64
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
Slovenia
Ability to
directly issue
sanctions
Policy on sanctioning
NEB can refer cases to the inspection department which can issue sanctions;
the maximum value is €4 million
NEB issues ‘prescriptions’ (warnings) first as sanctions are
seen as the last
resort; the maximum value is 10,000 lev (approx. €5,000)
Sanction will be issued in cases where airlines are reluctant to respond,
provide evidence or pay compensation in a timely manner; the maximum
value is CZK
1million (approx. €39,000)
NEB can refer cases to the public prosecutor which can issue sanctions; the
maximum value is 20,000 DKK (approx. €2,700)
NEB issues a warning first before imposing a sanction; the maximum value is
€30,000
€640 Per offence not per passenger*
NEB can refer cases to the court which can issue sanctions; the maximum
value is €5,000
The
maximum value for sanctions is €3,000
The maximum value for sanctions is €70,000
NEB can refer cases to the French Administrative Commission of Civil
Aviation for sanctioning; the maximum value is €7,500 per passenger and
per failing
NEB can issue sanctions but has policy not to do so; the maximum legal limit
for sanctions is 50,000 HRK (approx. €6,800)
The maximum value for sanctions from ENAC is €50,000
No information on maximum sanction values.
NEB can open an administrative case; the maximum values for sanctions
differ depending on the infringement (€3,000 for lack of information, €7,000
for other breaches, and €100,000 for unfair commercial practices)
Sanctioning process is complex due to legal context; the maximum value is
€8,300 (in the case of repeated infringement)
Article L. 311-9 of the Consumption Code suggests that the NEB has the
power to urge an air carrier to comply with its decision. Non-compliance can
be punished with a fine ranging from 251 EUR to 50,000 EUR.-
The maximum value for sanctions from CAA is €1.5 million
The NEB (within its ADR capacity) can issue sanctions to carriers with a
registered office in Malta only; the maximum value is €47,000
Sanctions are complex to enforce; the maximum value for punitive
sanctions is €83,000
NEB can file a case with the local panel authority for sanctioning
The president of the CAA can impose sanctions in cases where non-
compliance with passenger rights are noted.
Cases get transferred to the legal department of the NEB for sanctioning;
the maximum value is €150,000
LEI 2,500 (€588) Per offence, not per passenger*
NEB can issue a sanction with a maximum value of €20,000 which is
enforced by the tax authority
64
The NEB itself has informed us that the existing legislation in Luxembourg does not define a sanction
process for non-compliance with Regulation 261/2004 which contradicts the Consumption Code.
January 2020 | 135
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0162.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Member State
Slovakia
Finland
CDB
Traficom
FFCA
SCA
Sweden
ARN
United Kingdom
Iceland
Norway
Switzerland
Ability to
directly issue
sanctions
Policy on sanctioning
NEB can issue a sanction with a maximum value of €66,000 and €166,000
for repeated non-compliance
-
-
NEB has duty to negotiate with carrier first before issuing a sanction
NEB has duty to negotiate with carrier first before issuing a sanction
-
NEB can only issue enforcement orders and refer cases to court which can
issue a fine for non-compliance with such an order
NEB can issue sanctions but has policy not to do so; the maximum legal limit
for sanctions is ISK 10,000 per day (approx. €73)
NEB can issue sanctions but has policy not to do so
Sanctions are difficult to enforce due to legal context; maximum value is
CHF
20,000 (approx. €17,500)
EU-wide
Ability to directly issue sanctions: 23 NEBs
Note:
=
Yes,
= No
* information based on findings of 2011 study, updated information on sanctions not received during the 2019
stakeholder consultation
Source: Steer analysis of stakeholder consultation responses
Sanctions relating to compliance with Regulation 261/2004 have never been issued by NEBs in
13 Member States, although in some of these (e.g. Denmark, Estonia) sanctions have not been
issued, as a result of airlines responding to warnings (i.e. the threat of sanctions) from the
NEBs. As summarised above and detailed in the fiches in Appendix E, the approach to issuing
sanctions varies between Member States, where these have been issued. From the NEBs that
provided relevant statistics to allow a rate to be estimated, it can be observed that sanctions
have been issued in approximately 1% of the complaint cases handled by NEBs. Where
sanctions have been issued, these have usually been paid by airlines. The German NEB
indicated that airlines tended to be quite reactive in changing their practices in response to
sanctions being imposed. In Spain, the NEB stated that it issued fines in 30% of the inspections
it carried out at airports (see paragraph 5.51) and that it too had found airlines to be
responsive to these. Based on this, sanctions could be seen as being dissuasive for airlines,
however these have only been applied (or threatened to be applied) in a very small proportion
of cases handled by NEBs, which in turn represent only a small proportion of claims received
by airlines. Overall then, the amounts involved are comparatively small and likely to be less
than the cost that airlines may in some circumstances avoid through non-compliance with the
Regulation.
January 2020 | 136
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0163.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Other activities undertaken by NEBs
Enforcement of other legislation
Under Regulation 1107/2006, the responsible NEBs receive only a minimal number of
complaints from passengers, in part because the PRM Regulation is not claim-based like
Regulation 261/2004 is and does not prescribe any standard compensation. The Dutch NEB
has stated that it addresses PRM questions through its hotline at pre-booking stages, which
additionally helps to avoid issues arising during the journey.
The low volume of complaints makes it difficult for NEBs to assess if the regulation is working
well. Monitoring and enforcement of Regulation 1107/2006 is focused at system-level
enforcement and tends to be more proactive, in line with other oversight activities
undertaken by transport authorities, where service providers are audited to ensure that they
meet required standards. Most NEBs use the ECAC Doc 30 recommendations as a basis for
their audits.
The consensus from some NEBs is that provisions for PRM passengers generally work well at
airports and that any issues are dealt with directly with the airport and/or airline (Estonian
NEB, Bulgarian NEB, Slovakian NEB, UK NEB, Austrian NEB, Greek NEB). However, other NEBs
believe that the lack of monetary compensation associated with the Regulation is also
believed to result in many complaints not being reported (Dutch NEB, Finnish NEB). The
Hungarian NEB also view the fewer number of complaints as a result of historically different
approaches to PRM rights, with PRMs only recently moving more towards air travel as a result.
Overall, NEBs have a lack of transparency over the number of PRM passengers who do submit
complaints to either the airport or airline unless they also contact the NEB itself. The Finnish
NEB notes that PRMs do contact the NEB because they feel that they should receive
compensation for the problems they incurred on their journey. The Finnish NEB might refer
PRMs to the Finnish ADR body or the non-discriminatory ombudsman (or vice versa).
Some NEBs have established communication to disability forums within its Member States.
The Icelandic NEB has set up communication with a disability forum to discuss training needs
for handling mobility equipment. The Belgian NEB has also set up an FAQ working group with
the accessibility department within the Ministry to disseminate and share information. In
Norway, the CAA has established systematic dialogue with PRM organisation and has set up
regular meetings with airlines and airports to discuss issues in order to ensure pro-active
enforcement.
The standards found at UK airports have been described by the UK CAA and other NEBs
(Hungarian NEB) as exemplary. General awareness levels of PRM requirements as well as PRM
expectations are very high. The UK CAA has cited the detailed guidance issued by the
Department for Transport as a key factor.
Other activities
Some NEBs (Dutch NEB, Slovenian NEB, Spanish NEB, German NEB, etc.) regularly perform
inspections at airports to monitor carriers’ compliance with the
requirement to provide
information. Some NEBs (Portugal, Spain, Greece) also take a proactive approach during
periods of disruption, when staff members visit airports to ensure care and assistance is
provided to passengers in line with Regulation 261/2004 requirements.
January 2020 | 137
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0164.png
Study on the current level of protection of air passenger rights in the EU | Final Report
View of NEBs on airline compliance with the Regulation
Compliance of airlines on the provision of information
Article 14 of Regulation 261/2004 states that the airline is required to provide passengers with
information on their rights at check-in as well as in the case of a cancelled flight or denied
boarding. The provision of information, unlike other aspects of the Regulation, can be
monitored and checked by NEBs through regular audits and airport inspections. Out of the 33
NEBs that responded to the question, 25 NEBs indicated that they view that airlines show
strong levels of compliance with Article 14. Some NEBs (check if do not know ones) have
noted more limited compliance or have indicated that they do not know.
The Slovenian NEB undertakes inspections around 4-5 times annually. The Dutch NEB has
informed us that it undertakes ten inspections annually, mostly focusing on the bigger airports
in the Netherlands, but is planning to reduce the number in the future. The German NEB has
informed us that they do between 80 and 100 inspection annually at German airports to
assess compliance with Article 14. AESA, the Spanish NEB undertakes an even higher number
of inspections, with 250 annually at Madrid, Barcelona and one of the other Spanish airports.
Due to the increasing volume of complaints that NEBs have to handle, the Austrian NEB has
noted that they could not undertake inspections at airports in 2018 although they had initially
planned to.
Generally, most NEBs have noted an increased level of passenger awareness, either through
awareness campaigns done by the national ECCs at airports (Slovakian NEB), the media, claim
agencies that are handing out information material to passengers at the airport (Spanish NEB),
or word of mouth between passengers (Belgian NEB).
Compliance of airlines on the provision of care and assistance
Under Article 9, airlines are required to provide passengers with care and assistance, including
meals and refreshments in a reasonable relation to the waiting time, hotel accommodation
where a stay becomes necessary, and transport between airport and hotel. Similar to the
provision of information, most NEBs (17) rate airlines’ compliance with the care and assistance
requirement as strong while a number also notes more limited compliance or again has no
information.
The Norwegian CAA has noted that while they believe that airlines show strong compliance, it
is generally difficult for the NEB to know how passengers are treated in the moment when the
circumstances arise. The UK CAA states that Article 9 is an area of the regulation which tends
to be accepted and complied with. Airlines have been cited to have a good overview and
records over how many vouchers are handed out. However, the UK NEB also notes that the
reasons for complaints received have changed in recent years from lack of assistance towards
compensation claims.
The Maltese NEB states that they have observed trends on certain routes and airlines where
passengers are instructed to arrange their own subsistence and expense them with the airline
later, which has caused some issues. The Croatian NEB furthermore noted that they have
observed a trend where passengers are given vouchers for relatively low amounts (€5) that
are not enough to cover the cost of subsistence at airports. Passengers are then required to
send receipts for costs beyond the voucher value to the airline afterwards to get additional
costs expensed. However, this process adds to the burden of the passenger, with a proportion
of passengers potentially not claiming back their additional costs.
January 2020 | 138
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0165.png
Study on the current level of protection of air passenger rights in the EU | Final Report
A point raised by the Croatian NEB around the provision of care and assistance related to the
difficulties for airlines to find available hotel accommodation in the main tourist destinations
during the peak holiday season.
Compliance of airlines on re-routing
Article 8 of Regulation 261/2004 specifies the passengers’ right to reimbursement or re-
routing. Re-routing should occur at the earlier opportunity however many carriers have a
policy to re-route on their own services only. Due to the different ways of interpreting the
requirement under Article 8, 23 out of the NEBs that responded to the question indicated that
airlines only provided limited compliance. A smaller number of NEBs (8) noted strong levels of
compliance.
In Austria, a decision has been issued by the Supreme Court in 2018 on the issue of re-routing
(OGH 1 Ob 133/18t). The ruling states that airlines are required to re-route passengers on
competing airlines. The UK CAA is also currently investigating the issue of re-routing further
following a review of airline’s compliance with the subject and has published an open letter to
the airlines in December 2018. In its review, the UK CAA observed a varied picture with many
airlines demonstrating that re-routing passengers on competing airlines was an available
option but providing little clarity over the circumstances in which it would be taken up. The
open letter further states how the UK CAA interprets Article 8 and the circumstances in which
it would consider enforcement action for breaches.
The Dutch NEB notes that this aspect of the regulation is difficult to monitor and judge for the
NEB, related to ambiguities around the phrasing “at the earliest opportunity” and “under
comparable transport conditions”.
The NEB believes that airlines do not offer passengers all
possible re-routing
opportunities, but without access to the airline’s booking system is unable
to confirm this assumption.
The policy on re-routing does not only differ between airlines, but how the wording of Article
8 of the regulation is interpreted also varies across the different NEBs. As a result, two
passengers on the same disrupted flight who submit complaints with two different
enforcement bodies in different Member States might receive different outcomes due to the
lack of clarity in the Regulation.
The Hungarian NEB has stated that due to lower levels of staff at the airport they believe
passengers are given less assistance with re-routing on LCCs compared to network carriers.
The UK CAA stated that the re-routing process is overall difficult to enforce during peak
periods. The ability to re-route passengers faster on its own services or carriers within the
same alliance was noted to be easier for network carriers compared to LCCs. The UK CAA has
also observed that LCCs tend to only re-route on other LCCs.
Compliance of airlines on paying compensation
Airlines are required to provide the passenger with compensation for long delays or
cancellations, with the amounts specified in Article 7 of Regulation 261/204. Ten NEBs observe
a strong level of compliance from airlines whereas a higher number of NEBs (20) only observe
limited compliance.
NEBs, such as the Austrian APF, the Dutch NEB and the Hungarian NEB note that compliance is
mostly unrelated to whether an airline operates a low cost or full-service model. Rather
compliance relates to the airline’s approach to complaint handling. The Dutch NEB states that
newer airlines, including several LCCs, and network carriers often have standardised processes
January 2020 | 139
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0166.png
Study on the current level of protection of air passenger rights in the EU | Final Report
to handle passenger complaints. Lower levels of compliance are observed from foreign
carriers, as well as seasonal charter airlines and regional carriers. Smaller airlines result in a
lower volume of complaints for the Belgian NEB, however proportionally to the number of
passengers flying with these carriers are problematic.
The Maltese has observed one airline applying delay tactics to the complaint handling process,
for instance though providing several individual reference numbers for the same complaint if
there are multiple passengers under the same booking. The Italian NEB has noted lower levels
of compliance from LCCs compared to network carriers
resulting in the NEB’s need to
intervene for passengers to receive compensation.
Compliance with the provision of compensation is not always consistent, as noted by the Irish
NEB CAR. CAR has observed cases of delayed or cancelled flights for which airlines will pay
compensation to some passengers but not all. The NEB has received complaints from
passengers whose claims were rejected but who are aware that claims from other passengers
have been accepted.
Multiple NEBs, including the Slovenian, Czech, Irish and Hungarian NEB have stated difficulties
with enforcement and compliance of non-EU carriers. The process to request and receive the
correct documentation are often lengthier due to a lack of effective complaint management
from the airline. Some NEBs, such as the Hungarian NEB does not have the power start an
official procedure against a foreign, thereby increase the possibility of non-compliance from
foreign carriers.
Whereas airlines tend to be compliant with straightforward complaints, there is less
compliance on the more complex cases as noted by the Dutch NEB. The Maltese NEB
furthermore stated that specifically cases relating to connecting flights and missed
connections can be interpreted differently, for instance only taking into account one of the
two travel legs. Several NEBs (Iceland, Sweden and Denmark) have also noted that
compliance with Article 7 of the regulation corresponds quite closely with the financial
performance of the relevant airline. The Icelandic NEB has noted struggling carriers were
responsible for the increased complaint volume in recent years.
The varying levels of enforcement powers of the different NEBs also impact the levels of
compliance that the NEBs observe. In Austria, the legal context requires the NEB to file a
complaint against the CEO of an airline instead of the airline itself in case an infringement with
the regulation is found. The NEB has noted that according to the Austrian flight act, if a panel
proceeding is opened against an individual their pilots license is removed. Therefore, most
airlines will comply with the NEBs decision to avoid the repercussions of the panel proceeding
and court. The Danish NEB voiced a similar point where it observes that in some cases, airlines
will decide to pay compensation rather than potentially face a fine in addition to the
compensation payment.
The Dutch NEB, in contrast to the Austrian NEB/ADR body, cannot issue legally binding
decisions. Even though some airlines respond to the NEBs recommendation on compensation
eligibility, others ignore the recommendation based on the NEBs’ limited enforcement
powers.
January 2020 | 140
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0167.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Summary of findings
Significant differences exist across the different Member States, both in terms of the way that
NEBs are dealing with individual complaints, as well as the enforcement powers they have.
The approach to enforcement and complaint handling varies between NEBs. Whereas some
NEBs are able to accept and enforce individual complaints, others cannot deal with passenger
complaints from individuals but instead perform enforcement on a system-wide level and
refer passengers to an ADR body.
In many cases, when NEBs have been set-up, their organisation and powers have not been
defined in terms of adequate outcomes for passengers or for effective monitoring and
enforcement of the industry. Instead they reflect already existing administrative authorities,
among which many had no consumer protection background, that have been given additional
functions to handle passenger rights with more or less resources, access to systems or legal
frameworks.
The analysis of the different types of NEBs did not identify a standout approach that could be
recommended as best practice in terms of encouraging airline compliance. The effectiveness
of NEB enforcement may vary depending on the perspective from which it is being assessed. A
NEB that handles individual complaints may be viewed as more effective by affected
passengers, as it will provide them with support in potentially obtaining compensation from
an airline. By comparison, a NEB which only focuses on wider system-level enforcement may
appear more dissuasive to airlines (i.e. effective in ensuring compliance) in the way that it
maintains oversight of their overall performance, but less so to individual passengers. No
evidence was found that airline compliance differs between airlines predominantly subject to
one NEB approach over another. This is further complicated by the degree of fragmentation
that exists across the EU+3 NEBs which potentially limits the degree to which individual NEBs
are able to influence airlines across their entire network of routes (unless they are their home-
based airline).
Complaint handling
As summarised above, all NEBs act on referral of passenger complaints but not always for the
benefit of the passenger itself. Some NEBs are also ADRs, although this is not the case
everywhere. Although the European Commission publishes a list of all NEBs and their contact
details, it is then up to the passenger to navigate to find the competent NEB body for their
complaint themselves. In Member States where the situation is additionally complex due to
regional jurisdictions, the NEB that is listed on the EC’s list may not be the NEB ultimately
responsible for handling and individual passenger’s complaint. No central portal or website
exists that helps passengers to identify and/or contact the correct NEB for their needs, for
example through a simple questionnaire. Some NEBs have set up a hotline to address
passengers’ initial queries as a way to reduce the number of complaints submitted.
Rather surprisingly, different powers and binding/non-binding nature of NEBs decisions are
also creating different outcomes for passengers across the EU/EEA/CH (theoretically even for
the same flight). This is also the case for the assessment of extraordinary circumstances which
creates an unfair application of APR for passengers and for all stakeholders involved.
The number of complaints received varies considerably across NEBs (understandably, driven
by the size of the market, whether its predominantly inbound or outbound, the number of
carriers based in that MS), however this means that the size of the NEBs and the processes
January 2020 | 141
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0168.png
Study on the current level of protection of air passenger rights in the EU | Final Report
and systems in place vary too. In most cases, the timeframe for resolution is around 6 months
with more time for the most complex cases.
In recent years, most NEBs have noted a substantial increase in the number of complaints
received under Regulation (EC) 261/2004. Whilst there has been a growth in air traffic
combined with ATC capacity constraints, strikes and airline insolvencies, many NEBs attributed
this increase by an increased level of passenger awareness about their rights. Media coverage,
especially of big disruptions, such as the Ryanair strikes, has helped to inform passengers
about their rights to claim compensation from airlines. Information provided by claim agencies
at airports, word of mouth, and information campaigns done by ECCs are other ways which
have been cited to result in increased passenger awareness.
In general, the number of complaints has been increasing steadily since 2011, presenting
challenges for resources or timeframes. Many NEBs have noted increases of up to 200% in the
number of complaints received since 2013. For passengers this may result in a delay to
complaint handling process. NEBs have had to react by increasing the number of staff (where
possible) that deals with air passenger rights within their organisation. The workload for the
complaint handling may also prevent the NEBs from performing more systematic
enforcement. A NEB noted that inspections at airports could not be undertaken in a given year
due to the high volume of complaints received.
Claim agencies have been quoted by NEBs in having a role in this increase, particularly where
they do not provide adequate documentation, increasing the “complexity” of case-handling.
The volume of complaints received by claim agencies has increased, representing up to 30%
for some NEBs. Additionally, NEBs note that the quality of documentation provided to support
complaints is often not adequate, which creates additional work for the NEB that must go
back to the claim agency to request missing information. Issues with seemingly forged
signatures or missing power of attorney confirmation have been noted in several Member
States.
NEB services are free to passengers and airlines (unlike ADRs) and funded by tax-payers, so
increases in claims and complexity either puts a strain on public funds or run the risks of less
efficient public action. The complaint enforcement system across the EU/EEA/CH additionally
varies greatly, including multiple NEBs in a single Member State and compensation claims that
are handled only by an ADR body instead of the NEB, generating complexity, which may create
obstacles for passengers seeking to submit a complaint about a claim already made to an
airline.
Monitoring, enforcement and sanctioning (Regulation 261/2004)
In principle, NEBs should be undertaking monitoring activities to maintain oversight of airlines’
compliance with the requirements of Regulation 261/2004, however NEBs do not all do this at
system level either “by definition” (e.g. Greece)
or because their resources are dedicated to
handling individual passenger complaints.
As with complaint-handling, different sanctioning powers and binding/non-binding nature of
decisions also create different outcomes for airlines across the EU/EEA/CH
–
possibly
contributing to some competitive distortions
–
although this was not a concern raised by
airlines (within the EU at least). Points were raised however about the competitive impact for
carriers outside the EU.
January 2020 | 142
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0169.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The level of information available to NEBs to allow them to fulfil their monitoring and
enforcement role is not sufficient. There is a lack of reporting requirements for airlines on
overall compliance. As a result, the NEBs’ enforcement is based only on complaints received
and, potentially, inspections. Some NEBs do proactively carry out inspection activities at
airports to monitor aspects of the regulation such as information provision and care and
assistance (as opposed to compensation). NEBs generally find that the provision of care and
assistance is accepted and widely complied with by airlines.
Some aspects of the requirements under the regulation are also not readily measurable
and/or enforceable. Difficulties with enforcement may be a result of a wording which allows a
case-by-case assessment (e.g. re-routing under comparable transport conditions at the
earliest opportunity) which results in different interpretations of what constitutes as an
infringement. The issue has been investigated further by two NEBs (Austria and the UK), which
has resulted in an official ruling in Austria and an open letter to airlines in the UK. NEBs have
noted a number of difficulties that emerge in trying to assess compliance with aspects of the
Regulation (e.g. the requirement to ask for volunteers for denied boarding) which are difficult
to record or provide evidence for retrospectively. The burden of proof required by courts,
alongside lengthy and costly court procedures may result in NEBs not initiating official
administrative proceedings against airlines. Many NEBs have noted that they assess
sanctioning to be a final measure and will issue warnings to airlines in the first instance to
encourage behavioural change.
Where infringements are found, sanctioning powers vary. Most Member States (e.g. Denmark,
Ireland, France, and Austria) require going through an administrative court process for
sanctions to be applied. In the case of Switzerland, it is actually a penal court process, for
which the 261 legal text is not sufficient tight to be able to pursue a case
“beyond reasonable
doubt”.
As a result of the complexity of the process, very few sanctions have been applied across the
EU/EEA/CH, and where sanctions are applied (e.g. GR and ES) it is unclear whether they are
effective and driving any systematic change
in airlines’ behaviour.
Overall, airlines indicated that their engagement with NEBs is not particularly material, either
with respect to complaint handling or monitoring/enforcement. There were however
individual examples of where airlines and NEBs disagree (for instance Finnair and FCCA on
technical issues, and Ryanair and UK CAA on own-staff strikes) and where airline cooperation
with NEBs is good (KLM and NL NEB on the proactive assessment of extraordinary
circumstances for individual flights).
Enforcement of NEBs with foreign carriers can be more problematic or not possible within
some legal contexts of certain Member States. Some NEBs have noted lower responsiveness
from low-cost carriers (LCCs), seasonal chart airlines and smaller regional carriers than legacy
carriers, while other NEBs have noted that LCCs can be very responsive to passenger
complaints and have set up good internal processes for managing these
–
perhaps indicating
some variation by Member State even within the same airline. A point about the correlation
between an airline’s financial performance and the number of passenger complaints has been
made by a few NEBs.
January 2020 | 143
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0170.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Cooperation between NEBs, CPC network and Wiki platform
Good cooperation exists between NEBs regarding the forwarding of complaints. Upon the
passenger’s request, almost all NEBs will forward the complete complaint to the competent
NEB alongside a short summary of the case.
Hardly any NEBs use the Consumer Protection Cooperation (CPC) framework. There is no
indication from stakeholders that the situation with the CPC has changed since 2011. NEBs
prefer to contact each other directly where assistance was required or to forward complaints
(although we note that the mutual assistance mechanism is also covered in the CPC
Regulation).
Some NEBs also said that the CPC network was of limited relevance to enforcement of
Regulation 261/2004. As discussed above, most NEBs only take action in response to
individual incidents identified through individual complaints or (in a few cases) through
inspections (11 NEBs exclusively act on individual complaints without considering wider
enforcement, and 15 act on individual complaints and do wider enforcement on the back of
these). Article 16 defines that NEBs are competent to enforce these individual incidents if they
occur within their State, and therefore they do not need to involve other NEBs through the
CPC system in responding to them. NEBs do not take action in response to general practices
such as a failure to have appropriate policies or procedures in place, which might involve
multiple enforcement bodies. NEBs also generally would not have a legal mandate under
Article 16(1) to undertake enforcement in relation to an incident that occurred in another
State and may not have a mandate under national law to assist with enforcement in another
State. Regulation 2006/2004 may provide such a mandate but only in response to cases of
collective consumer interest, not individual infringements.
Some NEBs, such as the FCCA in Finland, KV in Sweden and the UK CAA, are designated the
liaison point for the CPC Network. They said that the CPC system was primarily useful where
there was a need to force a one-off change to a particular practice (such as to change an
unfair contract term), rather than respond to an individual incident.
Some NEBs note positive experience with using the Wiki platform to exchange information
and clarify questions, however
–
as with any such platform
–
NEBs noted that its value
depended on its content and required the commitment of participants to dedicate some
resources to it.
January 2020 | 144
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0171.png
Study on the current level of protection of air passenger rights in the EU | Final Report
6
Contribution of the general
consumer protection framework,
other means of redress and claim
agencies
Introduction
This section focuses on the contribution of the general consumer protection framework and
other means of redress in protecting air passenger rights. Air passenger rights protections are
complementary to other, wider protections offered by the general consumer protection
framework. Similarly, air passenger rights enforcement mechanisms can be complemented by
wider public enforcement mechanisms established under the Consumer Protection
Cooperation (CPC) Regulation. In parallel, passengers may seek individual redress by turning
to private enforcement tools or claim agencies.
Table 6.1 provides an overview of the relevant aspects of the general consumer protection
framework and the various complementary tools that exist for public and private enforcement
in the area of air passenger rights.
Table 6.1: Tools in the area of air passenger rights
Type
Description
•
•
•
Directive 2015/2302 on Package Travel
65
Directive 93/13/EEC on Unfair Contract Terms
66
Directive 2005/29/EC on Unfair Commercial
Practices
67
Available to
consumers?
General consumer
protection framework
Public enforcement
mechanisms
Yes
Consumer Protection Cooperation
68
No
Individual complaint
handling and redress
mechanisms
Facilitators
and
information
points
Private
enforcement
mechanisms
European Consumer Centres
•
•
•
Yes
ADR
ODR
Courts (including European Small Claim
Procedure)
Yes
65
66
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015L2302
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013
67
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32005L0029
68
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32004R2006
January 2020 | 145
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0172.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Type
Private
companies
Source: European Commission
Description
Available to
consumers?
Yes
Claim agencies
Passengers can seek redress when they believe that their passenger rights have not been
asserted as required. Figure 6.1 provides a (non-exhaustive) illustration of the avenues and
steps that passengers may take, when it comes to redress in the form of financial
compensations. They may:
•
•
Contact the airline directly. If passengers
are not satisfied with the airline’s response, they
may then;
Contact the NEB. They may also go directly to the NEB, in which case they may either be
redirected to contact the airline first or in some cases have their complaint handled by
the NEB (regardless of whether they have first contacted the airline, as is the case in
Ireland). If passengers are not satisfied with the NEB’s decision or if passengers cannot get
the NEB decision fulfilled by the airline, they may then;
Contact the ADR/ODR body, if an ADR/ODR is available. They may also go directly to the
ADR/ODR body from one of the previous steps. If passengers are not satisfied with the
resolution offered or if passengers cannot get the ADR/ODR decision fulfilled by the
airline, they may;
Go to the courts. If no ADR body is available, then passengers might address the courts
after contacting the NEB or after contacting the airline.
•
•
At any point in this sequence, passengers may decide to use a representative such as a lawyer
or a claim agency, which will act on their behalf and contact the airline, and/or NEB, and/or
ADR, and/or courts, but note that some airlines oblige passengers to first submit their claim
directly to them and may refuse to process a claim directly submitted by a third-party.
Additionally, when a passenger resides in a different country to those between which the
disrupted flight was operated, or where the airline is based in another Member State than the
passenger, they may address their European Consumer Centre (ECC) as well as or instead of
the competent NEBs.
The diagram below shows the variety of private enforcement mechanisms available to
passengers (apart from ODRs which are not shown in the diagram below) to obtain financial
compensation. Overall, the interaction between the system of redress dedicated to air
passenger rights (airline systems, NEBs, specialist ADRs) and the private enforcement tools
available more widely (general ADRs, courts including small claims courts), coupled with the
involvement of claim agencies, creates a lot of complexity, has poor intelligibility and
generates delay and cost as part of the process.
January 2020 | 146
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0173.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 6.1: Illustration of possible private enforcement mechanisms available to passengers to obtain financial compensation
Source: Steer
January 2020 | 147
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0174.png
Study on the current level of protection of air passenger rights in the EU | Final Report
General consumer protection framework
Package Travel Directive
The Package Travel Directive 2015/2302
69
which replaces the previous directive from 1990
provides consumer protection for those booking at least two different types of travel services
for the same trip or holiday. The Directive specifies the package organiser’s levels of liability
for compensation.
The European Travel Agents’ and Tour Operators’ Association (ECTAA) noted that in the case
of travel disruptions there could be overlapping compensation entitlements for travellers
under the Montreal Convention (for delay), Regulation 261/2004 and, where the traveller
bought the flight as part of a package, under the Package Travel Directive. As explained in
Chapter 2, Article 14(5) of the Package Travel Directive 2015/2302 stipulates that any right of
compensation or price reduction under the Directive shall not affect the rights of travellers
under, inter alia, Regulation 261/2004 and international conventions. This means that whilst
travellers are entitled to present claims under different acts, compensation granted under
those shall be deducted from each other to avoid overcompensation: passengers can only
claim globally once for delays or cancellations under the PTD and/or Regulation 261/2004.
In practice, however, the right to refund defined in Regulation 261/2004 is difficult to handle
for tour operators who sold a package. A long delay may trigger a right to refund under
Regulation 261/2004, but not necessarily under the PTD, with stakeholders not clear about
their liabilities as the case law for Regulation 261/2004 and the PTD differs and
packages/linked travel arrangements are usually not sold with the price of the individual
services itemised. Additionally, ECTAA explained that, related to Article 12 of Regulation
261/2004 on further compensation, it remains unclear whether the standard compensation
paid by airlines under Regulation 261/2004 can be deducted from the compensation paid by
tour operators for loss of enjoyment under the PTD or whether they are separate types of
compensation.
With respect to overlapping compensation entitlements and responsibilities of different
stakeholder, package travellers may seek compensation in different ways:
•
•
•
They may seek compensation from airlines under Regulation 261/2004 (standard
compensation) or the Montreal Convention (delay damages);
they may also seek the same damages for loss of enjoyment from tour operators under
the PTD; or
they may seek damages for loss of enjoyment from insurance providers if they had
relevant cover.
Better demarcation of responsibilities, transparency and information exchange would be
required between stakeholders in order to avoid that travellers purposely seek to obtain
multiple compensation in this way actually receive it. A recent CJEU case
70
on tour organiser
liability for reimbursement of the cost of air tickets and the right to claim reimbursement from
the air carrier, found that Article 8(2) of Regulation 261/2004 must be interpreted as meaning
that a passenger who, under Directive 90/314, has the right to hold his tour organiser liable for
69
70
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015L2302
C-163/18 (July 2019):
http://curia.europa.eu/juris/document/document.jsf?docid=216037&mode=req&pageIndex=1&dir=&o
cc=first&part=1&text=&doclang=EN&cid=3664268
January 2020 | 148
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0175.png
Study on the current level of protection of air passenger rights in the EU | Final Report
reimbursement of the cost of their air ticket, can no longer claim reimbursement of the cost of
that ticket from the air carrier, on the basis of that regulation, even where the tour organiser
is financially incapable of reimbursing the cost of the ticket and has not taken any measures to
guarantee such reimbursement.
Regulation 261/2004 does not have any specific requirements for travel agents (TAs) or tour
operators (TOs) as it focusses its operational requirements only on airlines. So in principle, the
role of travel agents and tour operators should be limited to directing customers to the
relevant airline. As confirmed by one TO, administrative costs are incurred in facilitating this
communication and explaining that compensation claims under Regulation 261/2004 are not
the responsibility of TAs/TOs, but these costs are not recorded separately and presumably are
marginal compared to general customer service and communication costs for TAs/TOs.
However, TAs/TOs are the natural point of contact with respect to all aspects of the trip for
travellers who booked package travel and travellers often do not perceive the separation of
duties between the different service providers. As such, when airlines do not comply with their
obligation to pay compensation or do not respond to passengers’ claims, package travel
customers seek compensation from TOs. ECTAA indicated that TOs sometimes provide this
compensation in order to maintain a good relationship with their customers, but are often
unable to subsequently obtain redress from the relevant airlines. TOs then end up incurring
high costs due to airlines' failure to comply with their obligations. TAs also incur costs in
helping passengers to understand and assert their rights, as passengers turn to them in cases
of disruption where airlines have not provided information or have not offered assistance and
care of travel disruptions.
The fact the TAs and TOs are the natural point of contact for passengers who booked their
flights through such intermediaries or as part of a package is also relevant to the airlines’
obligation to provide passengers with information. Airlines only need to receive basic
information with respect to their passengers in order to make a reservation and they also have
to receive Advance Passenger Information (API) from passengers (e.g. passport details) before
they travel or when they check in. Airlines often though do not have the contact details of
their passengers. In any case, personal data of this form is governed by GDPR, but TAs/TOs
view that such contact details are commercially sensitive, since these passengers form their
customer base.
Article 14 of the EC’s proposed revision of Regulation 261/2004 stipulates that airlines
are
obliged to inform passengers of delays and cancellations, in so far as they received the
passenger contact details from the intermediary if the ticket was sold through an
intermediary. It further provides that TAs have to provide the contact details to the airline,
unless there is an alternative system that ensures that passengers are informed without the
transmission of the relevant contact details.
In this context, ECTAA highlighted that travel agents can only provide the contact details to the
airline if they have received the contact details from customers, which are not always provided
(e.g. group bookings) and if they have also received customers’ consent for these contact
details to be shared with the airline. Airlines have confirmed that this is the case and that they
can indeed be in a position to not have contact details of the passengers on their own flights.
We understand that TAs and TOs think there is a risk that airlines may use customers’ contact
details for commercial purposes (e.g. marketing offers). ECTAA stated that if there were to be
a requirement for TAs to have to inform passengers of disruption, there must be an obligation
for airlines to share real-time data with TAs.
January 2020 | 149
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0176.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Other relevant general consumer protection legislation
All other relevant general consumer protection legislation is presented in Chapter 2. With the
exception of no-show clauses used by airlines, other issues were not raised by stakeholders
relating to general consumer protection legislation, although a 2012 study
71
undertaken by
Steer Davies Gleave noted that compliance of airlines and travel agents with Directive
93/13/EEC on Unfair Contract Terms
72
and with Directive 2005/29/EC on Unfair Commercial
Practices
73
was mixed.
On no-shows clauses, which are also discussed in Chapter 2 from the point of view of
passengers, there are currently no EU laws forbidding their use, but a number of EU Member
State courts, including in Germany, Spain and Austria, have ruled that the no-show clauses are
unfair contract terms which breach national legislation based on EU Directives. In its 2013
proposal, the European Commission proposed to (partially) ban no-show clauses. This was
supported and reinforced by the European Parliament. However, the Council removed the
relevant provision from the legislative proposal.
Public enforcement mechanisms
The Consumer Protection Cooperation (CPC) is a network of authorities responsible for
enforcing EU
consumer protection laws to protect consumers’ interests in the EU and EEA.
Regulation (EC) No 2006/2004
74
on consumer protection cooperation (the CPC Regulation) lays
down a cooperation framework enabling national authorities from all countries in the EEA to
jointly address breaches of EU-wide consumer protection laws, including passenger rights, in
cases where the trader and the consumer are based in different countries.
The CPC Regulation links national competent authorities to form a European enforcement
network. The CPC Network enables authorities to share best practices and provides a mutual
assistance mechanism for authorities to alert each other about malpractices that could spread
to other countries and ask for assistance in ending the infringement. The Network also acts to
agree on common positions, when acting jointly to oblige traders involved in widespread
problematic practices to change them across the EU/EEA. As of 17 January 2020, Regulation
(EU) 2017/2394
75
(a revised CPC regulation) will become applicable.
71
https://ec.europa.eu/transport/sites/transport/files/modes/air/studies/doc/internal_market/final_rep
ort_price_transparency.pdf
72
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013
73
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32005L0029
74
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32004R2006
75
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017R2394&from=EN
It shall improve the current framework by 1) extending the scope of the CPC regulation to allow for
cooperation in new areas. These new areas include infringements of short duration, such as short-term
misleading advertising campaigns. Also included are legislative areas not previously covered such as
Regulation 1008/2008. 2) strengthening the minimum powers of the competent authorities to cooperate
in the cross-border context, and especially to tackle bad online practices faster. These include the power
to carry out test purchases and mystery shopping, to suspend and take down websites, to impose interim
measures, to impose penalties proportionate to the cross-border dimension of the imputed practice. 3)
putting in place stronger coordinated mechanisms to investigate and tackle widespread infringements. 4)
allowing authorities to accept commitments from traders to provide remedies to affected consumers in
cases of widespread illegal commercial practices. The authorities will also be able to inform the affected
January 2020 | 150
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0177.png
Study on the current level of protection of air passenger rights in the EU | Final Report
As already described in Chapter 5, hardly any NEBs use the CPC Network. The CPC Network
concerns action in response to general practices (such as failure to have appropriate policies
or procedures in place or infringements of consumer protection laws) which might involve
multiple enforcement bodies in several Member States. As a result, the network is viewed by
NEBs as being “of
limited relevance to the enforcement of Regulation 261/2004”,
which as
seen in Chapter 5, predominantly involves the enforcement of individual incidents by an NEB
in the same Member State as that within which the incident occurred.
Some NEBs, such as the FCCA in Finland, KV in Sweden and the UK CAA, said that the CPC
system was primarily useful where there was a need to force a one-off change to a particular
practice (such as to change an unfair contract term), rather than respond to an individual
incident. Despite the opportunity for common positions to be adopted through the CPC
Network, NEBs have not used this for providing a coordinated position, for example, with
respect to the application of extraordinary circumstances in the case of mass flight disruptions
–
an approach that passenger representatives would welcome.
In the context of addressing widespread problematic practices, passenger representatives also
highlighted that they welcome the Commission’s proposal on representative actions
76
, as in
cases of mass disruptions, a possibility to seek collective redress would increase enforcement
levels and lower costs, compared to passengers having to address courts individually.
Individual complaint handling and redress
Facilitators and information mechanisms on complaint handling
The role of the European Consumer Centres Network (ECC-Net) is to provide information on
consumer rights and assist in resolving disputes when the consumer (a passenger) and trader
(an airline) involved are based in different European (EU28, Norway and Iceland) countries. It
is important to clarify that ECCs are not enforcement mechanisms.
Air passenger rights issues are very often of a cross-border nature and therefore relevant to
the network’s activities. In 2017, ECC-Net
reported that approximately 20% of its activities
related to air passenger rights issues.
ECC-Net supports passengers seeking redress by providing a single contact point for them to
address their complaint to, which is able to handle this complaint in their mother tongue. The
network acts as a facilitator and has flexibility in the way in which it can follow up a passenger
complaint. It can interact with the airlines in other Member States on behalf of the passenger
and/or turn to the competent NEB.
In its engagement with NEBs, ECC-Net noted that in many countries the NEBs can only be
reached in their national language (or English) and that they have different powers/remits
(with some only able to offer limited support to consumers) and timescales for handling
complaints. ECC-Net acts as a mechanism for reducing the fragmentation of the NEBs across
Europe. For example, ECC-Net is happy to address NEBs with an enquiry about whether
extraordinary circumstances applied to a particular flight (even if the NEB does not handle
consumers about how to seek compensation as provided for in national legislation. 5) allowing external
bodies such as consumer and trade associations and European Consumer Centres to post alerts and signal
issues to authorities and the Commission.
76
https://ec.europa.eu/info/sites/info/files/proposal_for_a_directive_on_representative_actions_for_the
_protection_of_the_collective_interests_of_consumers_0.pdf
January 2020 | 151
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0178.png
Study on the current level of protection of air passenger rights in the EU | Final Report
individual complaints) and then follow up with the airline concerned. Additionally, ECC-Net is
able to handle all complaints related to air passenger rights, not limited to Regulation
261/2004, but also Regulation 1107/2006 and the Montreal Convention. ECC-Net can also help
passengers with identifying the relevant ADR bodies or courts, if necessary. ECC-Net stated
that sector-specific ADR with relevant expertise and better integration of NEBs with ADR
would be desirable to facilitate greater fairness and access to redress.
However, passengers’ awareness of ECC-Net
and the various approaches that it can use in
trying to resolve a complaint on their behalf is not very good. In addition, while ECC-Net is a
valuable resource for passengers, it does not have powers to issue any (binding or non-
binding) decisions in the cases it handles, and cannot represent passengers in ADR or court.
Private enforcement mechanisms
Alternative dispute resolution and online dispute resolution
Alternative dispute resolution (ADR) and online dispute resolution (ODR) are not aviation-
specific consumer protection mechanisms. They offer a way for consumers to obtain impartial
mediation and arbitration for a dispute with a trader in their Member State. The two most
common forms of alternative dispute resolution are mediation and arbitration:
•
•
Mediation, where an independent third party helps the disputing parties to come to a
mutually acceptable outcome; and
Arbitration, where an independent third party assess the facts and makes a decision
which is often binding on one or both parties.
The ADR body competent for air passenger rights matters may be:
•
•
•
a general consumer arbitration body;
a consumer arbitration body focussing on transport (France, Iceland and Norway); or
a consumer arbitration body focussing specifically on air transport (Germany, Poland and
the UK).
Note that there can be more than one ADR in a Member State. For the enforcement of air
passenger rights within Europe, some NEBs are also the relevant ADR body in their Member
State (Austria, Denmark, Estonia, Finland, Latvia, Romania, Slovakia and Sweden). The Spanish
NEB has informed us that it will become an ADR body by the end of 2019.
As with NEBs, the form and enforcement power of ADR bodies differs. Some ADR bodies are
able to issue legally binding decisions (Cyprus, Denmark, Italy, Lithuania, the Netherlands,
Portugal, Slovenia, Spain and the UK), while others cannot.
Passengers are able to use the ADR system in most Member States for free, but small fees
have to be paid in Cyprus, Iceland, Italy, the Netherlands and the UK. In Iceland, the
Netherlands, and the UK this fee is refunded if the decision the ADR makes is in favour of the
passenger. Table 6.2 and Table 6.3 below provide an overview of ADR bodies relevant to air
passenger rights in each Member State and their enforcement powers. Many of the relevant
ADRs were not easy to identify, despite the list available on the European Commission
website, as the competence of each ADR and the participation of airlines in these is not clearly
indicated.
January 2020 | 152
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0179.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 6.2: Overview of ADR bodies in each Member State
Member
State
BE
BG
CZ
DK
ADR body/bodies
Consumer Mediation Service -
Conciliation Committee
Commission for Consumer
Protection
Czech Trade Inspection Authority
Danish Transport, Construction
and Housing Authority
söp - Conciliation Body for Public
Transport
Aviation Concilation Body at the
Federal Office for Justice (BfJ)
Consumer Complaints Committee
No ADR body that covers Air
Passenger Rights
ADR POINT Greece
Agencia Estatal de Seguridad
Aérea (AESA)
Médiation Tourisme et Voyage
(MTV)
The Mediation Centre of the
Croatian Employers' Association
The Court of Honour at the
Croatian Chamber of Economy
RisolviOnline - Milan Chamber of
Arbitration
Cyprus Consumer Center for
Alternative Dispute Resolution
Consumer Rights Protection
Centre of Latvia (CRPC/PTAC)
State Consumer Rights Protection
Authority
National Consumer Ombudsman
Service
Conciliatory body of Budapest
Complaints and Conciliation
Directorate within the Office for
Consumer Affairs
General consumer ADRs exists,
but airlines are not obliged to
accept passenger complaints
APF - Agentur für Passagier- und
Fahrgastrechte
Contact
https://consumerombudsman.be/en
https://kzp.bg/pomiritelna-komisiya
https://www.coi.cz/en/
https://klage.flypassager.dk/en
https://soep-online.de/index.html
www.bundesjustizamt.de/luftverkehr
https://www.ttja.ee/et
n/a
https://www.adrpoint.gr/en/consume
rs/adr-point
https://www.seguridadaerea.gob.es/L
ANG_EN/home.aspx
https://www.mtv.travel/en/
http://www.hgk.hr/centar-za-
mirenje/o-centru-za-mirenje
http://www.hgk.hr/sud-casti-pri-
hgk/o-sudu-casti
https://www.RisolviOnline.com
https://adrcyprus.com/en/
http://www.ptac.gov.lv/en
http://www.vvtat.lt/en/about-
authority.html
http://www.ombudsman.lu/EN/MGDL
-001.php
http://www.bekeltet.hu/
https://mccaa.org.mt/Section/index?s
ectionId=1061
Type of ADR
General consumer ADR
General consumer ADR
General consumer ADR
NEB is ADR body
Consumer arbitration
body for transport
Consumer arbitration
body for aviation
NEB is ADR body
n/a
General consumer ADR
NEB is ADR body (from
end of 2019)
Consumer arbitration
body for transport
General consumer ADR
General consumer ADR
General consumer ADR
General consumer ADR
NEB is ADR body
General consumer ADR
General consumer ADR
General consumer ADR
Office for Consumer
Affairs
DE
EE
IE
EL
ES
FR
HR
IT
CY
LV
LT
LU
HU
MT
NL
n/a
n/a
AT
https://www.apf.gv.at/de/flug.html
NEB is ADR body
January 2020 | 153
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0180.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Member
State
ADR body/bodies
Network of consumer courts of
arbitration
The Passengers’ Rights
Ombudsman
National Information and
Arbitration Centre for Consumer
Disputes (CNIACC)
National Authority of Consumer
Protection in Romania
ADR bodies exist but airlines
usually do not participate in the
procedure.
Slovak Trade Inspection
Consumer Disputes Board
National Board for Consumer
Disputes (ARN)
Centre for Effective Dispute
Resolution (CEDR)
Aviation ADR (AADR)
Contact
n/a
https://pasazerlotniczy.ulc.gov.pl/
Type of ADR
General consumer ADR
ADR for 261/2004
PL
PT
https://www.cniacc.pt/pt
General consumer ADR
RO
http://www.anpc.ro/
NEB is ADR body
SI
SK
FI
SE
n/a
https://www.soi.sk/en/SOI.soi
https://www.kuluttajariita.fi/en/index
.html
https://www.arn.se/
https://www.cedr.com/
https://www.aviationadr.org.uk/
https://ns.is/
https://reiselivsforum.no/web/home/
n/a
General consumer ADR
NEB is ADR body
NEB is ADR body
NEB is ADR body
General consumer ADR
Consumer arbitration
body for aviation
Consumer arbitration
body for transport
Consumer arbitration
body for transport
n/a
UK
IS
NO
CH
The Ruling Committee in Travel
Industry matters
Transportklagenemda Norsk
Reiselivsforum (NRF)
- (Swiss participates in German
ADR)
Source: Steer analysis of stakeholder consultation responses
Table 6.3: Overview of enforcement power of ADRs
Member
State
BE
BG
CZ
DK
D
E
EE
IE
EL
ES
FR
söp
BfJ
Legally binding decision?
Binding upon agreement by both parties

n/a


Costs for passengers
None
None
None
None
None
None
None
n/a
None
None
None
January 2020 | 154
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0181.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Member
State
HR
IT
CY
LV
LT
LU
HU
MT
NL
AT
P
L
RO
SI
SK
FI
SE
U
K
CEDR
AADR
Courts
Ombuds
-man
Legally binding decision?
Binding upon agreement by one or both parties at
the Mediation Centre and binding at the Court of
Honour


Binding upon agreement by both parties
Binding upon agreement by one or both parties
n/a
Binding upon agreement by both parties
No information provided
Binding upon agreement by both parties
Where
the passenger accepts ADR’s decision
Where
the passenger accepts ADR’s decision


n/a
Costs for passengers
Some fees (registration, mediator,
administrative) at the Mediation Centre,
none at the Court of Honour
Consumer pays fee of €30
€20
filing fee plus arbitration fee (depending
on value of claim)
None
None
None
None
None
n/a
None
None
No information provided
None
None
None
None
None
£25, which is refunded in case of a decision
made in favour of passenger
None
Small fee of 3,500
ISK (€26) which is
refunded if ruling is made in favour of
passenger
None
n/a
IS
NO
CH
Source: Steer analysis of stakeholder consultation responses
In general, all stakeholder groups (airlines, consumer representatives and NEBs) welcomed
ADR as a comparatively efficient and effective way for handling disputed claims within the
existing framework, especially as compared to the courts. The ADR process is simpler, can be
(in most cases) completed “remotely” without the physical presence of claimants or
defendants, more cost-effective and without the risk of large procedural costs falling to either
party.
Some ADR schemes appear to work well, but the approach is not common across all Member
States and there are aspects that do not work well with respect to air passenger rights. Such
aspects include:
•
Voluntary participation of airlines: in some Member States, the participation of airlines in
an ADR scheme is not mandatory. As such, even if an ADR exists in a country, it may not
January 2020 | 155
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0182.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
•
•
•
•
be available to passengers seeking redress on APR disputes if the airline does not
participate. Additionally, there have been cases where airlines have withdrawn their
participation in ADR schemes.
Sector expertise: general consumer ADRs may lack the expertise to properly understand
technical aspects of the aviation system as part of their assessment of a case (e.g. the
detailed functioning of Air Traffic Control and Network Manager functions).
Legal scope and interpretation: some ADRs are only able to assess cases on the basis of
the Regulation only, while others can also take case law into account (which for
Regulation 261/2004 there is a significant volume of). In some countries (e.g. in France
and Germany) the ADR uses the legal text as a basis for negotiation and may not award
the standard compensation amount when it finds in favour of the passenger, or may seek
to negotiate an amount with the airline even when compensation to the passenger is not
strictly due.
Non-binding decisions: Not all ADRs are able to issue binding decisions that, if necessary,
are enforceable in the courts. As a result, the ADR process is viewed by some airlines as
redundant if disputed cases are going to be escalated to the courts in any case.
Burden of proof: According to some airlines, a number of ADRs require a level of evidence
that is commensurate to that requested by courts, which they believe undermines the
value of the ADR process (which is intended to be simpler than the courts), despite the
lower procedural costs. Some airlines also indicated that fraudulent cases may be
escalated to an ADR, as the risk of perjury is not as high as it would be in court.
Appeals: At some ADRs there is no possibility of appeal.
Language: most ADRs are only addressable in the national language or in English.
Despite potential shortcomings, ADR schemes are welcomed by NEBs as a way of lessening the
burden of individual complaint handling (e.g. in the UK where the ADR bodies and NEB are
separate), allowing the NEB to focus on overall system-level oversight and enforcement; or,
where the NEB is also an ADR (e.g. in Austria, Denmark), as a way of making the NEB’s
decisions binding.
Authorities may also welcome ADR schemes as a way of relieving some of the pressure that
APR cases have created on the courts (e.g. one of the reasons that the NEB is Spain is
becoming an ADR in late 2019 is to reduce the number of cases ending up in the local courts).
However, the case load can be substantial for ADRs too (e.g. the German ADR (söp) has a
significant backlog). This was echoed by general consumer ADRs too (e.g. Finland), which
observed that they process a disproportionate number of air passenger rights cases relative to
wider and potentially more important consumer issues, such as housing disputes.
The NEBs and ECCs did not specifically discuss the ODR process during the stakeholder
engagement. Most airlines stated that the EU ODR platform is not used very much by
passengers and thus they have little experience with it.
Courts
When a claim is disputed between a passenger and an airline, this may ultimately be resolved
in the courts, as with other civil and contractual matters. Court processes can be procedurally
complex, time-consuming and potentially costly, and as a result tend to be a last resort
mechanism for individual consumers seeking redress.
From the perspective of operational stakeholders, as described in Chapter 4, courts create a
lot of uncertainty, complexity and cost too, since many courts are not particularly specialist in
January 2020 | 156
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0183.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Regulation 261/2004 (there is no guarantee that they will always follow the Regulation and its
associated jurisprudence) and court processes and representation all vary widely across EU
Member States.
For a passenger, it is not necessarily straightforward to determine the competent court, both
in terms of the geographical jurisdiction and also the legal basis of the claim. According to
ECCs, cases ought to typically be brought in the country of departure or the country of arrival
of the disrupted flight, which may be different to the country of residence of the passenger
and in a language they may not speak.
When taken to court, airlines potentially face similar jurisdiction and language issues as
passengers do. If cases are brought to court in countries in which they do not have significant
operations, airlines may not have the language capability or procedural experience to defend
these cases in-house. They may of course engage legal support in the country in question, but
this generates additional costs and does not necessarily resolve the complexity of defending a
case through an unfamiliar procedure.
The use of small claims courts, where available, and the European Small Claims Procedure is
seen by ECCs as a potentially effective and inexpensive means of dealing with claims that
could not be resolved out-of-court. However, these procedures usually still attract a charge
and while most may be completed in writing, the courts may call a hearing if deemed
necessary, which may involve additional time and costs for passengers (travel costs,
representation costs etc.). In using the courts, claiming passengers also run the risk of being
liable for airlines’ legal costs if their claim is not successful, which presents a further barrier for
passengers to seek redress.
Where claims are brought to court is also influenced by the different statutes of limitations
that are applicable across Member States. The CJEU case of More v KLM (C139/11) confirmed
that limitation is a matter of domestic law in each EU Member State.
•
•
•
•
•
The applicable time limit in Scandinavian countries can be very short (i.e. 6 months);
The applicable time limit in the Netherlands is two years;
The applicable time limit in Germany is at least three years (three full years plus the
remainder of the year in which the event took place);
The applicable time limit in Spain is five years;
The applicable time limit in Ireland and the UK is six years;
The variation in time limitations that apply further complicate the situation for passengers and
may mean that they are able to pursue a claim in only one of the qualifying jurisdictions, if a
shorter time limit has been exceeded in another. ECCs highlighted that this can especially be
the case if passengers have first gone through lengthy enforcement processes with NEB which
have proven ineffective. Airlines have also questioned why time limitations reach five or six
years for flights cancelled or delayed where the passenger prejudice is limited, when time
limitations for bringing a claim against an airline under the Montreal Convention for damage
sustained in case of death or bodily injury is limited to two years only.
The uneven time limitations applicable (very short in some countries and very long in others)
can present a practical challenge, particularly linked to information retained: even if airlines
retain relevant information of their own for some time, it is not always straightforward to
collect and provide relevant evidence from third parties (e.g. ANSPs) four or five years after
the event. The different time limitations applicable across Member States also make it
January 2020 | 157
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0184.png
Study on the current level of protection of air passenger rights in the EU | Final Report
complicated for airlines to be certain as to when claims may be considered to have expired
and no longer represent a liability.
Most airlines stated that courts are being consumer-friendly (with some courts more so than
others) and often without specialist knowledge of the aviation sector. The level of evidence
needed differs between countries and, according to airlines, in some cases, it can be very
difficult to demonstrate that all reasonable measures were taken or prove why it was not
possible nor reasonable for given measures to be taken. The low value of the claims often
means that there is no possibility for appeal.
According to the airlines, claim agencies carefully select the best courts in front of which the
case should be brought, based on their understanding of the different statutes of limitations
and court approaches to “consumer-friendliness”. Airlines stated that they have been called to
defend case brought not only in the country of departure or arrival of the disrupted flight, but
also in the country of residence of the passenger (if different) and the country in which the
airline is domiciled. Airlines explained that this presents a risk to them, since they want to
avoid incurring legal costs when the ruling is likely to award the passenger compensation
anyway
–
as well as potentially generating jurisprudence
–
so they may end up settling out of
court, even when they are strongly of the opinion that the claim should not be eligible.
Research by our legal advisor indicates that some airlines have been successful in getting such
cases rejected on jurisdictional grounds.
The readiness with which claim agencies escalate cases to the courts, generates a large
volume of court activity. Anecdotal evidence suggests that some courts may be overwhelmed
by Regulation 261/2004 cases, although this would have the benefit, if any, to provide the
courts with more specialist knowledge of the European legislation on air passenger rights. The
research shows that:
•
•
•
Approximately 70% of the air passenger rights cases brought in Spanish courts in 2018
were by claim agencies;
Around 40% of all cases in the District Court of Copenhagen in 2018 concerned claims
under Regulation 2016/2004;
In the Netherlands:
–
In 2018, the District Court of Noord-Holland rendered 1,973 judgements on
Regulation 261/2004, while the District Court of Amsterdam handled 1,997 APR cases
in the same year.
–
At the time of writing, the District Court of Noord-Holland is handling 3,172
Regulation 261/2004 cases, while the District Court of Amsterdam is handling 572
–
In 2018, 170 judgments on Regulation 261/2004 cases were published by Dutch
courts on www.rechtspraak.nl. Of these, 20 judgments related to procedural aspects
(such as jurisdiction) only, while of the remaining 150 judgments, 46 (31%) judgments
were in favour of the airline and 104 (69%) judgments were in favour of the
passengers. In all of these 170 cases, the passengers were represented by a claim
agency.
The level of activity generated in the courts consumes considerable public resources, which
create wider consequences and delays in the judicial system too. This is despite the fact that a
significant proportion (the majority according to the District Court of Amsterdam) of the cases
are withdrawn after reaching out-of-court settlements, administrative court time is still taken
up to process these. This also appears to confirm that airlines seek to avoid going to court by
settling cases.
January 2020 | 158
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0185.png
Study on the current level of protection of air passenger rights in the EU | Final Report
In struggling under the volume of cases, contradictory rulings are seen on cases that appear
similar, although this may be related to the evidence brought forward by the parties. It also
indicates that sufficient systems to record and consolidate rulings may not be in place. Overall,
the visibility of court activity and rulings at national level is very low across the European
system, so neither industry nor NEBs have a full understanding of the scale of activity and the
outcomes.
Claim agencies
A significant development since 2011 is the emergence of claim agencies, which was
particularly concentrated between 2013 and 2015, at a time when ADR bodies were not yet as
well-recognised. Claim agencies more generally tend to focus their activity in high-volume, low
value areas where standard compensation regimes are in place that effectively guarantee
them a return for successful claims and consumer awareness of their eligibility to
compensation or their motivation to do so is low. In this sense, the air passenger rights
environment provides the market conditions for claim agencies to establish themselves, since:
•
•
•
•
•
Regulation 261/2004 defines standard compensation;
Redress processes can be complex and time-consuming;
Regulation 261/2004 and its jurisprudence have low intelligibility to most passengers;
Airline compliance has been poor; and
Passengers usually distrust responses provided by airlines.
Claim agencies primarily engage with compensation claims under Article 7 of Regulation
261/2004 and the Montreal Convention, as well as under equivalent air passenger rights
frameworks around the world. They generally do not engage with other claims brought under
Regulation 261/2004 (e.g. for reimbursement) or complaints brought under Regulation
1107/2006, which does not define a standard compensation framework. Most agencies
advertise their service on a “no win no fee” basis, with any
costs incurred by the agency being
funded through a proportion of the compensation being retained if the claim is successful.
Claim agencies describe themselves as providers of “justice as a service” (JaaS) that work to
close the “justice gap” in APR resulting
from the issues noted above.
Figure 6.2 shows the possible interactions between passengers, airlines, and other redress
bodies. Passengers may engage with airlines, NEBs and most ADRs for free. Fees may apply for
using the courts. Claim agencies represent passengers by taking their place in this set of
interactions (as shown in Figure 6.3) and withholding a proportion of compensation awarded
to passengers. The claim agencies may benefit from the free interactions that passengers
would in any case have had available to them.
January 2020 | 159
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0186.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 6.2: Interactions between passengers, airline and other redress bodies
NEB
ADR
Passenger
Free interaction
Airline
Courts
Source: Steer
Figure 6.3: Interactions between passengers, claim agency, airline and other redress bodies
Source: Steer
Figure 6.4 below shows the share of compensation retained by five claim agencies operating in
the EU. Charges across all distance bands are broadly the same, however charges between
agencies vary from around 22% to just over 30%. It is worth noting that the two cheapest
agencies, Travel Refund and AirHelp, as well as Reclamador, charge higher fees if the claim is
escalated to the courts, whilst EUClaim and FlightRight, which charge higher fees overall, do
not mention any increases in fees in these cases. The proportion of compensation retained if
the claim is escalated to the courts for Travel Refund and AirHelp represents a substantial
increase on the standard fees being charged, with the resulting fee being at least half of the
January 2020 | 160
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0187.png
Study on the current level of protection of air passenger rights in the EU | Final Report
compensation being paid by the airline. Reclamador charges an additional flat fee of €15+VAT
for this service, but charges all claimants higher fees (30%) in the first place.
Figure 6.4: Proportion of compensation retained
60%
52%
50%
50%
Proportion Retained, %
40%
30% 30% 30%
35%
25%
30%
22%
20%
10%
N/A N/A
0%
Proportion Retained
Travel Refund
Airhelp
EUClain
Proportion Retained if escalated to
court
FlightRight
Reclamador
Source: Steer analysis, Claim agency terms and conditions
Claim agencies deal with claims enquiries, process eligible claims and monitor flight
disruptions on a very large scale with a high degree of automation. To do this they have
developed bespoke and sophisticated infrastructure and technologies that allow them to
maintain records of flight activity and disruptions, as well as automatically classify disruption
as (likely) due to extraordinary circumstances or otherwise, alongside customer-facing
websites and contact centres.
In offering services to consumers, claim agencies are subject to consumer protection rules,
and additionally, their activity, or certain aspects of it, is regulated in some Member States but
not in others. In some Member States, their services are considered legal or enforcement
services, in which case they are subject to the relevant rules and monitoring from relevant
authorities. For example, Ireland has laws preventing so called “ambulance-chasing” and, as a
result, claim agencies are not able to operate there. In Denmark on the other hand, claim
agencies are not allowed to set their fees as a proportion of the compensation that might be
due, and so have to set fixed fees instead (but given that compensation under Regulation
261/2004 is anyway set at standard levels, the Danish rules do not effectively change the
situation with respect to the fees charged to passengers).
A large number of claim agencies of different sizes exist in most Member States and compete
with each other. Four of the largest claim agencies active across Europe (AirHelp, EUClaim,
Flightright and Reclemador) formed the Association of Passenger Rights Advocates (APRA) in
2017 shortly after the publication of the Information Notice to Air Passengers
77
which was
77
Information notice on relevant EU consumer protection, marketing and data protection law
applicable to claim agencies' activities in relation to Regulation 261/2004 on air passenger rights, 9
March 2017 https://ec.europa.eu/transport/sites/transport/files/2017-03-09-information-note-air-
passenger-rights-on-claim-agencies_en.pdf
January 2020 | 161
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0188.png
Study on the current level of protection of air passenger rights in the EU | Final Report
published by the European Commission in March 2017. The information notice provides
passengers with information on the EU legal background of the activities of claim agencies in
the field of air passenger rights, but it is unclear whether this is well-known by passengers.
One of APRA’s first actions was to adopt a code of conduct aimed at preventing bad practice,
although the extent to which this is adhered to by the APRA members themselves and its
influence on the wider claim agency industry is not clear yet, since many NEBs and airlines
reported that many of the practices addressed by the code of conduct continue.
We have compared the key obligations set out in the EC Information Notice of March 2017
with the code of conduct published on the APRA website, as summarised in Table 6.4 and
found that the code of conduct adheres to the legal obligations highlighted to passengers in
the Information Notice.
Table 6.4: Adherence of
APRA’s code of conduct to EC’s information notice
Legal obligations for claim agencies listed in the
EC’s information notice
Claim agencies must clearly display the price of
their services, i.e. showing an initial price on
their website which includes all applicable fees.
Relevant rules/principles from APRA’s code of
conduct
•
APRA members display the price of their
services transparently.
Claim agencies must be able to produce a clear
power of attorney.
Claim agencies should not resort to persistent
unsolicited telemarketing.
•
APRA members are able to produce a clear
and signed power of attorney or notice of
assignment to prove their authorization.
APRA members always clearly identify
themselves to all parties they make contact
with during the course of their activities.
APRA members do not make use of
misleading marketing activities, such as
unsolicited telemarketing.
APRA members comply with the laws and
rules applicable to their business activity,
including rules on data security, such as
GDPR.
APRA members maintain necessary
confidentiality about information relating
to customers and airlines.
•
•
Transmission of personal data.
•
•
Source: European Commission, APRA
APRA notes that the Information Notice has had a negative impact on the operations of its
members. The Information Notice is seen (by APRA) as favouring airlines rather than
passengers by supporting practices that discourage passengers from claiming compensation
(for example the requirement to provide ID, when this is not required from passengers to
make an airline booking).
Claim agencies are very active in promoting awareness of air passenger rights since this drives
their income. They have sponsored public relations, media and social media campaigns to
highlight the protections available to passengers and advertise their services. Additionally,
claim agencies use mass marketing and sponsored search engine results to bring air passenger
rights to the attention of consumers and attract them to their services. According to APRA, the
January 2020 | 162
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0189.png
Study on the current level of protection of air passenger rights in the EU | Final Report
websites of its four member agencies receive more than two million visits per month. This
activity can be seen as a welcome contribution towards increasing passengers’ awareness of
their rights, however in some cases the transparency with which this is done is low (e.g.
certain claim agencies set up URLs that include an airline’s name –
e.g.
airlinename.claimagencyname.com
–
as a way to attract passengers seeking compensation).
APRA explained that only a proportion of website visitors (not quantified by APRA) file claims,
and of those only about 10% have a valid claim. The rest are informed by the website that
their claim is not valid and may be given a reason why, although in some cases this is limited to
“in
our experience the likelihood of success of such a claim is not high”,
which does not help
clarify the situation for passengers. We found that some claim agencies inform passengers of
the non-eligibility of their claim only after passengers have provided their contact details.
APRA stated that the opportunity for passengers to instantly check the eligibility of their
claims on its members’ websites contributes to better awareness amongst passengers and
relieves airlines, NEBs and other stakeholders from having to process and reject and ineligible
claim.
APRA indicated that it considers the application of Regulation 261/2004 to now be clear,
following the contribution of the CJEU rulings, but that airlines are not compliant. In particular,
APRA stated that airline responses to claims are still not justified or evidenced well enough,
unless the cases are taken to court. Meanwhile APRA explained that it sees the enforcement
system as insufficient, with the impact of NEBs and ADRs described as “immaterial”.
APRA also explained that it is important to separate the preventive effect of the compensation
levels specified in the APR framework and the question of airline compliance once disruption
occurs. The higher the level of compensation, the more the airlines will do to avoid
disruptions, but regardless of the size of the compensation, APRA believes that the airlines will
always try to avoid paying it, which creates a need for claim agency services.
A number of issues have been highlighted by NEBs, ECCs, passenger representatives and
airlines with respect to the activities of claim agencies, including the following:
•
On marketing practices:
–
NEBs and airlines reported that some claim agency staff have stationed themselves at
airport arrivals and targeted passengers who they identify as having been on a
disrupted flight. Similar targeting is understood to also take place at airport hotels,
where passengers affected by disruption might have been transferred to in cases of
very long delays.
–
Some claim agencies now also provide services to and through online travel agencies
to proactively alert passengers of their rights to compensation if the travel agency’s
records show them as having been on a disrupted flight, as monitored by the claim
agencies. The claim agencies explained that this does not involve the transfer of
passengers’ data from the travel agency to the claim agency –
but the study has not
been able to verify this. Instead, the travel agency receives information from claim
agencies about flights it has reserved for passengers and it then contacts passengers
affected by disruption (who opted-in to receiving communications) to inform them
about their compensation rights, with a click-through to a claim agency that can make
the claim for them. It is not clear to what extent such passengers recognise that they
are clicking through to a separate service provider or whether the opportunity to
contact the airline for free is highlighted to them. ECCs have recorded some
passenger complaints to this effect, while passenger representatives raised concerns
January 2020 | 163
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0190.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
•
•
•
around data protection infringements, both with respect to travel agencies and more
broadly about passengers contacted by claim agencies in relation to flights that might
have taken place several years previously.
On unfair terms:
–
Some ECCs and passenger representatives pointed out that although in principle
claim agencies are good for consumers since their interests are aligned, the terms
that claim agencies use in some Member States (e.g. the Netherlands) are not always
fair and are therefore disadvantageous to consumers.
On value-added:
–
All of these stakeholders challenged the value added by the claim agencies that
simply forward the claims to NEBs or ECCs for them to resolve. Two airlines also
stated that claim agencies have requested an application programming interface (API)
with their internal systems to automate the transmission of claims, which could have
been submitted by passengers on the airlines’ websites in the first place.
On transparency:
–
All these stakeholders highlighted that some claim agencies provide poor quality
documentation and evidence, including power of attorney paperwork (or electronic
power of attorney (e-POA)) that should prove that they are acting on the behalf of
passengers. The scope of such powers of attorney that passengers are asked to sign is
also unclear. ECCs have been contacted by passengers who are not able to fully
understand the content of the documents they have been asked to sign, including the
extent to which these bind them to going to court.
–
Passenger representatives highlighted that compensation awarded by airlines is
sometimes withheld by claim agencies for a long time before being paid (less claim
agency fees) to passengers.
On high volume of activity:
–
The number of claims generated by claim agencies is shifting the balance of the claim-
based APR regime and generating a large compensation and administrative burden
for airlines, as well an administrative burden for NEBs, ADRs and the courts. Airlines
reported that the proportion of claims received from claim agencies ranges from
between 10% to 50%, with most airlines reporting a proportion between 30% and
40%. The proportion of complaints received from claim agencies by NEBs ranged from
5% in Ireland (where the legal framework discourages claim agencies) and Austria (a
combined NEB and ADR with good levels of passenger awareness) to 40% in Slovenia.
–
According to airlines, some claim agencies do not allow reasonable timeframes for
them to process the claims. The timeframe for a response may be set within a few
days. If a satisfactory response is not received in time, the agency would generally
escalate the claim to the courts. Some claim agencies have also been described as
having “stockpiled” claims and submitted them
en masse
to the airlines, while setting
short response
deadlines, overwhelming the airlines’ claim handling systems. As a
result, airlines have had to divert resources to address agency-submitted claims
(either to avoid a writ of summons or in response to it) in the place of other
passenger-submitted claims which have been received earlier.
–
Airlines stated that claim-handling time is also taken up by investigating cases where
a passenger is represented multiple times by a number of agencies, ascertaining the
validity of the power of attorney or proving that a claim may have already been
settled.
On the use of courts (see next section also):
January 2020 | 164
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0191.png
Study on the current level of protection of air passenger rights in the EU | Final Report
–
•
Airlines and NEBs highlighted that the volume of cases taken to the courts is very high
and has created a backlog in the system. The Spanish NEB indicated that by becoming
an ADR it will help relieve the pressure on Spanish courts.
–
Airlines did not welcome the readiness with which claims are addressed to the courts,
and the way in which the threat of court action is used to get airlines to settle out-of-
court, in order to avoid legal fees, particularly since courts are often seen as being
more consumer-oriented.
–
Claim agencies are seen, by airlines, to be forum-shopping and targeting courts which
are seen as being particularly consumer/passenger-friendly or in which individual
airlines may not find it straightforward to represent themselves.
On flexibility:
– Claim agencies are perceived by airlines as removing airlines’ flexibility towards
customer care and the opportunity to offer alternatives to monetary compensation
to passengers. Such alternatives (e.g. loyalty scheme miles or status) are of course
preferred by the airlines, since they are likely to not involve a direct cost and overall
have a lower marginal cost than the standard Regulation 261/2004 compensation,
but it could be that, in some cases but far from all, these could actually be preferred
by some passengers. Airlines consider that claim agencies damage the relationship
with their passengers, particularly when claim agencies portray that is difficult to
claim from airlines. Whilst airlines do not like to be depicted as such, passenger
representatives, NEBs and ECCs confirmed that claiming from some airlines in Europe
still remains problematic for passengers.
As pointed out by claim agencies themselves, NEBs, ECCs and passenger representatives, claim
agencies do fulfil an enforcement gap and act to ensure
passengers’ rights are fulfilled in
situations where passengers might have encountered difficulties in doing so themselves (or
are happy to pay someone else to do so for them) and although we cannot be certain about
the level of satisfaction of passengers who use claim agencies, many of them are likely to be
satisfied
78
. Although in many cases claim agencies duplicate a service that NEBs and ECCs
would offer for free, the information provided on claim agency websites and apps, along with
the eligibility checks offered do contribute to passengers being better informed. In looking to
uphold consumer rights and providing that all free, extra-judicial options failed, some ECCs
welcomed that passengers might have the possibility to get some of the compensation they
are entitled to if claim agencies are willing to pursue cases in court. ECCs and passenger
representatives noted though that claim agencies in their experience only take cases to court
if it is clear that they will win and that they avoid more complicated cases, to the
disappointment of consumers.
78
Trustpilot reviews of some of the biggest claim agencies tend to be positive, however this cannot be
relied on a fully representative survey/sample.
January 2020 | 165
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0192.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Summary of findings
Air passenger rights protections are complementary to other, wider protections offered by the
general consumer protection framework. Similarly, air passenger rights enforcement
mechanisms can be complemented by wider public enforcement mechanisms established
under the Consumer Protection Cooperation (CPC) Regulation. In parallel, passengers may
seek individual redress by turning to private enforcement tools or claim agencies. The
interaction between the complaint handling schemes (ECC, ADR, courts) and the system of
redress dedicated to APR (airlines, NEBs) coupled with the involvement of claim agencies,
creates a lot of complexity, has poor intelligibility and generates delay and cost as part of the
process.
There are overlapping compensation entitlements for consumers under Regulation 261/2004
and, where the traveller bought the flight as part of a package, under the PTD, which creates
some complexity for travel agents and tour operators. Travel agents and tour operators are
the holders of the relationship with customers who booked a package and the natural point of
contact for these travellers when they are subject to disruption. Better demarcation of
responsibilities, transparency and information exchange would be required between
stakeholders to ensure that liabilities for compensation rest with the correct party and to
avoid that travellers who purposely seek to obtain multiple compensation actually receive it.
The fact the travel agents and tour operators are the natural point of contact for passengers
who booked their flights through such intermediaries or as part of a package is also relevant to
the airlines’ obligation to provide passengers with information. Airlines often though do not
have the contact details of their passengers and travel agents/tour operators view that such
contact details are commercially sensitive, since these passengers form their customer base.
Where customers’ contact details are provided to an airline, travel agents and tour operators
state that airlines should not be permitted to use customers’ contact details for commercial
purposes (e.g. marketing offers).
With the exception of no-show clauses used by airlines, other issues were not raised by
stakeholders relating to general consumer protection legislation. A number of EU Member
State courts, including in Germany, Spain and Austria, have ruled that the no-show clauses are
unfair contract terms which breach national legislation based on EU Directives.
Hardly any NEBs use the CPC Network. The CPC Network concerns action in response to
general practices (such as failure to have appropriate policies or procedures in place) which
might involve multiple enforcement bodies in several Member States. As a result, the network
is viewed by NEBs as being “of limited relevance to the enforcement of Regulation 261/2004”,
which predominantly involves the enforcement of individual incidents by a NEB in the same
Member State as that within which the incident occurred. NEBs have also not used the
functions offered by the CPC Network for providing a coordinated position, for example, with
respect to the application of extraordinary circumstances in the case of mass flight disruptions
–
an approach that passenger representatives would welcome.
The ECC-Net is a valuable resource cross-border for passengers. It supports them in seeking
redress by essentially providing a single contact point for them to address their complaint to,
which is able to handle this complaint in their mother tongue. The network acts as a facilitator
and has flexibility in the way in which it can follow up a passenger complaint. It can address
the airline in the other country on behalf of the passenger and/or turn to the competent NEB.
The ECC-Net then acts as a mechanism for reducing the fragmentation of the NEBs across
January 2020 | 166
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0193.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Europe and additionally can handle all complaints related to APR, covering Regulation
261/2004, Regulation 1107/2006 and the Montreal Convention. ECC-Net however does not
have the powers to issue any (binding or non-binding) decisions in the cases it handles.
In general, ADRs are a comparatively efficient and effective way for handling disputed claims
within the existing air passenger rights framework, especially as compared to the courts.
However, the coverage of ADRs across the EU/EEA is fragmented and suffers shortcomings
such as the participation of airlines only being voluntary; a lack of sector expertise at general
consumer bodies; restricted legal scope and interpretation of the legislation (e.g. not including
case law); and the non-binding nature of their decisions.
The emergence of claim agencies in recent years has been a particularly significant
development in the area of air passenger rights. Most agencies advertise their service on a “no
win no fee” basis, with any costs incurred by the agency being funded through a (substantial)
proportion of the compensation being retained if the claim is successful. Claim agencies
describe themselves as providers of justice as a service (JaaS) that work to close the “justice
gap” in APR resulting from the difficulty that passengers encounter in enforcing their rights.
Claim agencies deal with claims enquiries, process eligible claims and monitor flight
disruptions on very large scale with a high degree of automation that has shifted the balance
in the air passenger rights system, generating a significant compensation, administrative and
legal burden for airlines and a large number of cases in the courts. At the same time,
passengers may have to pay up to 50% of their compensation to the claim agencies in some
cases, depending on steps taken for the claim to be resolved (i.e. whether this is resolved
between the claim agency and the airline or whether the case is taken to court by the claim
agency). A number of the practices used by claim agencies have been highlighted as
problematic by NEBs, ECCs, passenger representatives and airlines. A particular concern for
airlines is the readiness with which claim agencies resort to the courts, as courts generate a lot
of uncertainty, complexity and cost through their sometimes-inconsistent interpretation of the
Regulation’s provisions at a local
level.
However, as also pointed out by NEBs and passenger representatives, claim agencies have
supported increased awareness of air passenger rights (since this drives their income), and do
indeed fill an enforcement gap, acting to ensure passengers’ rights
are fulfilled in situations
where passengers might have encountered difficulties in doing so themselves.
January 2020 | 167
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0194.png
Study on the current level of protection of air passenger rights in the EU | Final Report
7
Development of air passenger
rights outside the EU
Introduction
This chapter focuses on the development of air passenger rights (APR) outside the EU. The
analysis covers 19 non-EU countries as detailed in Table 7.1 and shown in Figure 7.1. Fiches for
all of these countries are included in Appendix F.
Table 7.1: Non-EU countries covered by the analysis
Non-EU countries
Australia
Brazil
Canada
China
Ethiopia
India
Indonesia
Israel
Japan
Malaysia
Figure 7.1: Map of non-EU countries covered by the analysis
Mexico
Morocco
New Zealand
Qatar
Singapore
South Africa
Turkey
UAE
United States
Source: Steer
January 2020 | 168
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0195.png
Study on the current level of protection of air passenger rights in the EU | Final Report
This chapter presents the results of a comparative analysis of air passenger rights approaches
drawing on desktop research, inputs from the stakeholder consultation and the international
workshop (Air Passenger Rights: International Lessons) held as part of this study on 14-15 May
2019. A copy of the discussion held at this workshop is available in Appendix B. The analysis
covers two main elements:
•
•
A comparison of the EU framework against the International Civil Aviation Organisation
(ICAO) Core Principles on Consumer Protection; and
A comparison of the EU framework against frameworks in non-EU countries.
We summarise the protection available to passengers in non-EU countries and identify any
best practices and lessons learnt with respect to enforcement, which may be applicable in the
EU context. We also summarise issues highlighted by airlines operating internationally and
having to comply with different air passenger rights frameworks.
ICAO core principles on consumer protection
ICAO has developed a set of Core Principles on Consumer Protection
79
, which are meant to
serve as guidance for States and industry stakeholders in dealing with consumer protection
matters. The principles were developed in 2013 and adopted by ICAO in 2015, in the context
of a significant number of States (more than 60 in the past 15 years) having adopted
regulatory measures concerning air passenger rights, for example on access to air travel for
passengers with reduced mobility, price transparency and obligations of airlines toward
passengers in cases of flight disruption (cancellation, delays or denied boarding due to
overbooking).
At the industry level, many airlines have adopted voluntary commitments (i.e. non-legally
binding self-regulation) to clarify or improve their policies or practices with regard to certain
customer services (such as fare offers, ticket refunds, denied boarding, flight delays and
cancellations, baggage handling, response to complaints, and special passenger needs), often
in response to public pressure and to avoid regulatory measures being imposed.
The
ICAO Core Principles on Consumer Protection state that “Government
authorities should
have the flexibility to develop consumer protection regimes which strike an appropriate
balance between protection of consumers and industry competitiveness and which take into
account States’ different social, political, and economic characteristics, without prejudice to the
safety and security of aviation”.
The ICAO guidance provides that consumer protection
regimes should:
•
•
•
Reflect the principle of proportionality;
Allow for the consideration of the impact of massive disruption;
Be consistent with the international treaty regimes on air carrier liability (Warsaw
Convention 1929; Montreal Convention 1999).
The principles recommend that stakeholders make efforts to raise
passengers’ awareness of
their rights, so that they can make informed choices.
ICAO has structured the principles around three phases:
•
•
Before travel;
During travel; and
79
https://www.icao.int/sustainability/Documents/ConsumerProtection/CorePrinciples.pdf
January 2020 | 169
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0196.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
After travel.
Before travel,
the principles focus on clarity and transparency of information provided by
airlines with respect to the air transport contract, including the total price, general conditions
applying to the fare and the identity of the operating carrier. In the EU, these principles are
covered by Regulation 1008/2008 and Regulation 2111/2005. The general conditions of
carriage are often also discussed by passenger representatives and airlines in the context of air
passenger rights with respect to the use of no-show clauses. Passenger representatives would
like to see these banned, whereas airlines consider that they are a fundamental aspect of their
pricing freedom (see Chapter 2). Transparency of the clauses, as part of the conditions of
carriage, are covered by Regulation 1008/2008.
During travel,
the ICAO Core Principles focus on:
•
Keeping passengers informed about their journey, particularly in the event of service
disruption. In cases of service disruption, the provision of due attention, including re-
routing, refund, care and/or other compensation (where provided). In the EU, these
principles are mainly covered by Regulation 261/2004.
Accessibility of air transport to persons with disabilities and the availability of appropriate
assistance. In the EU these principles are covered by Regulation 1107/2006.
Contingency mechanisms planned in advance by all relevant stakeholders to ensure that
adequate assistance is available to passengers in cases of massive disruptions
80
.
Corresponding EU legislation does not exist on this principle, however, guidance on
developing contingency crisis management plans and reinforcing resilience procedures at
airports is coordinated by ACI-Europe. A requirement for care and assistance to be
provided to passengers in all circumstances, including massive disruptions, is defined in
Regulation 261/2004.
•
•
After travel,
the principles specify that efficient complaint handling procedures should be
available to passengers and that they should be clearly informed about such procedures. In
the EU this is mainly covered by Regulation 261/2004.
Table 7.2 below summarises how the EU framework corresponds to the ICAO Core Principles
on Consumer Protection. Overall, most ICAO principles are covered by requirements specified
in EU legislation, with the exception of the requirement for passengers to be kept informed
throughout their journey and particularly in cases of disruption. A specific obligation for this
requirement does not exist in EU legislation, despite it forming one of the ten EU core
passenger rights that the European Commission has envisaged for passengers across all
transport modes.
80
Massive disruptions include situations resulting from circumstances outside the operator’s control, of
a magnitude such that they result in multiple cancellations and/or delays’ and leading to a considerable
number of passengers stranded at the airport.
January 2020 | 170
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0197.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 7.2: Comparison of ICAO Core Principles on Consumer Protection and EU framework
ICAO core principles on consumer protection
Passengers should have access to clear and transparent
information on the total price, including the applicable air
fare, taxes, charges, surcharges and fees.
Passengers should have access to clear and transparent
information on the general conditions applying to the fare.
Passengers should have access to clear and transparent
information on the identity of the airline actually operating
the flight and advice on any change occurring after the
purchase as soon as possible.
Passengers should be kept regularly informed throughout
their journey on any special circumstances affecting their
flight, particularly in the event of service disruption.
Passengers should receive due attention in cases of service
disruption including re-routing, refund, care and/or other
compensation (where provided).
Principle in EU
framework
✓
Legislation
Regulation
1008/2008
Regulation
1008/2008
Regulation
2111/2005
A specific obligation
to keep passengers
informed, particularly
during disruption,
does not exist
Regulation 261/2004
Before travel
✓
✓
✓
During travel
Persons with disabilities should, without derogating from
aviation safety, have access to air transport in a non-
discriminatory manner and to appropriate assistance.
✓
Regulation
1107/2006
Regulation 261/2004
provides for
passengers receiving
care and assistance in
all circumstances.
An obligation to put
plans in place in
advance in case of
massive disruptions
does not exist.
Regulation 261/2004
Regulation 261/2004
Mechanisms should be planned in advance by all
concerned stakeholders to ensure that passengers receive
adequate attention and assistance in cases of massive
disruptions.
✓
After
travel
Efficient complaint handling procedures should be
available.
Passengers should be clearly informed about such
procedures.
✓
✓
Source: ICAO Core Principles on Consumer Protection, Steer analysis
In response to an increasing number of countries adopting air passenger rights regulations,
IATA also defined a set of IATA Core Principles on Consumer Protection in 2013, which are not
mandatory in nature but voluntary commitments by IATA airlines. These principles include the
airline industry’s position on the role of States' passenger rights regulations and their
territorial scope. As to their substance, the IATA Core Principles broadly correspond with the
ICAO ones and, given the above, also correspond with the EU framework, with the exception
of the following EU legal requirements:
•
Provision of care and assistance to passengers in all cases of disruption, including those
outside the control of the airlines;
January 2020 | 171
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0198.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
Provision of reimbursement or re-routing in the case of cancellations, including those
outside the control of the airlines; and
Provision of reimbursement in the case of very long delays of five hours or more, including
those outside the control of the airlines.
Table 7.3 below summarises the ICAO Core Principles and the corresponding IATA Core
Principles on Consumer Protection and indicates whether the IATA principles are, at a high
level, compatible with the EU framework.
Table 7.3: Comparison of ICAO and IATA core principles on consumer protection and EU framework
Corresponding IATA core
principle on consumer
protection
Passengers should have clear,
transparent access to fare
information, including taxes
and charges, prior to
purchasing a ticket.
Passengers should have access
to information on their legal
and contractual rights.
IATA
compatibility
with EU
framework
ICAO core principles on consumer
protection
Passengers should have access
to clear and transparent
information on the total price,
including the applicable air fare,
taxes, charges, surcharges and
fees.
Legislation
✓
Regulation
1008/2008
Before travel
Passengers should have access
to clear and transparent
information on the general
conditions applying to the fare.
Passengers should have access
to clear and transparent
information on the identity of
the airline actually operating the
flight and advice on any change
occurring after the purchase as
soon as possible.
✓
Regulation
1008/2008
Passengers should have clear,
transparent access to
information about the airline
actually operating the flight in
case of a codeshare service.
✓
Regulation
2111/2005
Passengers should be kept
regularly informed throughout
their journey on any special
circumstances affecting their
flight, particularly in the event of
service disruption.
Airlines should employ their
best efforts to keep
passengers regularly informed
in the event of a service
disruption.
–
A specific
obligation to
keep
passengers
informed,
particularly
during
disruption, does
not exist
During travel
Passengers should receive due
attention in cases of service
disruption including re-routing,
refund, care and/or other
compensation (where provided).
The industry recognizes the
right to re-routing, refunds or
compensation in cases of
denied boarding and
cancellations, where
circumstances are within the
carrier’s control.
The industry recognizes the
right to re-routing, refunds or
care and assistance to
passengers affected by delays
where circumstances are
within the carrier’s control.
✓
Regulation
261/2004
✓
January 2020 | 172
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0199.png
Study on the current level of protection of air passenger rights in the EU | Final Report
ICAO core principles on consumer
protection
Corresponding IATA core
principle on consumer
protection
In cases where delays or
disruptions are outside an
airline’s control, governments
should allow market forces to
determine the care and
assistance available to
passengers.
IATA
compatibility
with EU
framework
Legislation
Persons with disabilities should,
without derogating from
aviation safety, have access to
air transport in a non-
discriminatory manner and to
appropriate assistance.
Mechanisms should be planned
in advance by all concerned
stakeholders to ensure that
passengers receive adequate
attention and assistance in cases
of massive disruptions.
Airlines should assist
passengers with reduced
mobility in a manner
compatible with the relevant
safety regulations and
operational considerations.
✓
Regulation
1107/2006
Not applicable
–
–
After travel
Efficient complaint handling
procedures should be available.
Passengers should be clearly
informed about such
procedures.
Airlines will establish and
maintain efficient complaint
handling procedures that are
clearly communicated to
passengers.
✓
Regulation
261/2004
Source: ICAO, IATA, Steer analysis
Although the IATA principles may be compatible with the EU framework at a high level, there
may still be differences in the detailed implementation, for example the approach to re-
routing
and whether this is offered at the “earliest opportunity”, including
on competing
carriers. With respect to extraordinary circumstances and their impact, these are highlighted
by the ICAO principles, the IATA principles and the EU framework, albeit to a different extent.
The ICAO principles acknowledge the impact of extraordinary circumstances in the case of
massive disruptions, whereas both the IATA principles and the EU framework consider the
application of extraordinary circumstances on an individual flight basis. However, as indicated
above and discussed in Chapter 4,
the airlines’ position and the EU framework do not agree on
the obligations of carriers in such circumstances, while they are also not aligned on the
definition of such circumstances.
As shown in Table 7.2 and Table 7.3 above, there exists a gap in the EU framework with
respect to the provision of information to passengers throughout their journey and
particularly during disruptions. If airlines are following the IATA principles, then this gap is
voluntarily closed by good industry practice on customer service, however, this point is also
addressed by the EC’s 2013 proposal for the revision of Regulation 261/2004, which defines an
obligation for airlines to keep passengers informed about the situation, as well as their rights.
Note that the enforceability of such an obligation could be a challenge as it can be a
qualitative and subjective issue, where passenger expectations of the level of information to
January 2020 | 173
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0200.png
Study on the current level of protection of air passenger rights in the EU | Final Report
be received and the level of information actually available to operational stakeholders are not
necessarily matched (also discussed in Chapter 2).
As also shown above, the EU framework does not consider the impact of massive disruptions
separately from the impact of extraordinary circumstances on an individual flight basis.
Regulation 261/2004 defines and obligation for airlines to provide care and assistances to
passengers in all cases and does not allow for different approaches in the case of massive
disruptions. This was challenged by some airlines in the aftermath of the volcanic ash cloud
which forced the closure of large parts of European airspace in 2010 and resulted in significant
care and assistance liabilities being generated for carriers. The EC’s 2013 proposal for the
revision of Regulation 261/2004 addressed this issue by proposing an assistance limit of three
nights in the case of such extraordinary events (the limit would not apply to PRMs and some
other passengers with specific needs) and an obligation for airports, air carriers and other
airport users to prepare contingency plans to care for passengers stranded in mass
disruptions.
Air passenger rights in non-EU countries
The ICAO Core Principles on Consumer Protection provide some high-level guidance on the
scope of air passenger rights, however the specification of such rights is not universal. The EU
core rights may not necessarily be recognised by all industry stakeholders or other countries,
however, they provide a useful framework within which different approaches to air passenger
rights that have been adopted across the world may be compared. The approach to defining
and protecting air passenger rights may be top-down (i.e. regulatory) or bottom-up (i.e.
voluntary or market-based). For a given set of rights (in this case the 10 EU core passenger
rights), in some countries these may be protected by regulations, in others they may only be
protected (if at all) by voluntary industry commitments, or it may be a mix of the two
approaches where some rights are protected in law and others are protected voluntarily.
Figure 7.2 provides an illustration of the spectrum of approaches to protecting (a given set of)
passenger rights.
Figure 7.2: Illustration of spectrum of approaches to protecting passenger rights
.
Coverage of 10 EU core
passenger rights
Voluntary
protection
Regulatory
protection
Source: Steer
January 2020 | 174
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0201.png
Study on the current level of protection of air passenger rights in the EU | Final Report
In Country A in the figure above, air passenger rights are mainly protected voluntarily by
airline commitments with only basic protections provided in law. In country C, on the other
hand, air passenger rights are mainly protected by obligations for air carriers that are defined
in law. In Country B, the protections emerge from a mix of regulatory obligations and
voluntarily, market-based commitments. The scope of the protections may also vary between
countries. For example, legal protections may be well defined in a given country, but may only
apply to domestic flights.
Appendix F includes fiches for 19 non-EU countries in which the protections available to air
passengers have been summarised and mapped to the EU core rights
81
. Below we summarise
relevant aspects of the different approaches and highlight similarities and differences with the
EU framework, as well as any good practices identified.
Recognising that air passenger rights protection frameworks may contain both regulatory and
voluntary elements and that their scope may vary, Table 7.4 below presents whether the
approach taken in the 19 countries considered in this study is predominantly regulatory or
voluntary.
Table 7.4: Regulatory, voluntary and mixed air passenger rights regimes
Country
Australia
Brazil
Canada
China
India
Indonesia
Israel
Japan
Malaysia
Mexico
Morocco
New Zealand
Nigeria
Qatar
Singapore
South Africa
Turkey
United Arab Emirates
United States
Predominantly regulatory
-
✓
✓
✓
✓
✓
✓
-
✓
✓
✓
✓
✓
-
-
-
✓
-
✓
Predominantly voluntary
✓
-
-
-
-
-
-
✓
-
-
-
-
-
✓
✓
✓
-
✓
-
81
The analysis maps the protections available to nine core rights (rights 2 to 10). The right to non-
discrimination to access to transport relates to ticketing transparency (access to fares shall be granted
without discrimination based on the nationality or the place of residence of the customer or the travel
agent) and has not been assessed for non-EU countries. The right to non-discrimination to access to
transport based on denied boarding and based on disability and/or reduced mobility has been covered
under other rights.
January 2020 | 175
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0202.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
Total
Source: Steer analysis
Predominantly regulatory
13
Predominantly voluntary
6
All of the countries featured deemed to be predominantly regulatory have a regime in which
air passenger rights protections are specifically defined with obligations for airlines. The
protections available may not be as extensive as those in the EU (e.g. no compensation), but
they are defined specifically for airlines. The remaining 6 have no specific legislation on (air)
passenger rights, with any air passenger rights rules then emerging from voluntary
commitments made by airlines in their conditions of carriage
–
general consumer protections
may nonetheless apply in these countries, such as Australia. For illustration, unfair contract
term protections are a general feature of the Australian consumer law, but there is nothing
specified in law about providing care and assistance to air passengers in the event of
disruptions
–
this is only specified by airlines voluntarily in their terms and conditions.
Canada has recently adopted a regulatory framework for air passenger rights. The relevant
regulations were developed, subject to consultation, during 2018 and will be phased in during
2019. Rules on denied boarding came into effect in July 2019, while rules on delays and
cancellations are expected to come into force in December 2019. In this analysis Canada is
considered on the basis of the incoming regulatory framework.
Table 7.5 below shows the scope for each of the regulatory frameworks.
•
•
The most limited scope is that of frameworks that apply to domestic flights only
(Indonesia, Mexico
82
and New Zealand);
The widest scope applies in Canada, India, Israel, Malaysia and the United States where
the passenger rights frameworks apply to all arriving and departing flights, both domestic
and international;
The frameworks in Brazil and China apply to all departing flights; while
The scope of frameworks in Morocco, Nigeria and Turkey is the same as that for
Regulation 261/2004 in the EU, covering all departing flights plus all flights on carriers
registered in the country/region.
•
•
Where voluntary
commitments are provided in airlines’ conditions of carriage, these apply to
all of their flights domestically and internationally, unless international flights are to/from a
country where a regulatory framework is in place, in which case the relevant legal
requirements will apply. For example, passengers’ rights on a domestic flight in Australia will
be as specified in the conditions of carriage of their chosen airline, but passengers on the same
airline flying from Malaysia to Australia will also be afforded the protections specified in the
Malaysian air passenger rights framework.
82
The Mexican air passenger rights framework does not explicitly specify a scope, but is understood to
apply domestically only.
January 2020 | 176
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0203.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 7.5: The scope of air passenger rights legislation in EU vs non-EU
Air passenger rights framework applies to:
Country/Region
EU+3
Australia
Brazil
Canada
China
India
Indonesia
Israel
Japan
Malaysia
Mexico
Morocco
New Zealand
Nigeria
Qatar
Singapore
South Africa
Turkey
United Arab Emirates
United States
Total (excluding EU)
Source: Steer analysis
✓
✓
Domestic flights
✓
International
departing flights
✓
International arriving flights
Foreign airline
Local airline
✓
Voluntary framework
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
-
✓
✓
-
✓
-
✓
✓
-
✓
Voluntary framework
✓
-
-
Voluntary framework
Voluntary framework
Voluntary framework
✓
✓
Voluntary framework
✓
✓
✓
✓
-
✓
✓
-
✓
-
✓
✓
✓
13
10
5
8
The observations above indicate potential legislative gaps and overlaps which can potentially
generate confusion for both passengers and airlines. For example:
•
Passengers travelling on a flight from Indonesia to the EU on an Indonesian carrier will not
be eligible for any assistance in case of disruption under any passenger rights framework
legislation, given that Indonesian rules cover only domestic flights, and EU legislation only
covers arriving flights if operated by an EU carrier. The degree of assistance offered will
rely only on the Indonesian carrier’s policy. This will be the case for EU(-resident)
passengers also, who would have been protected by Regulation 261/2004 on their
outbound flights from Europe.
Passengers subjected to a long delay on a disrupted flight from Canada
83
to the EU,
operated by an EU carrier will be eligible to receive care and compensation specified
under both the Canadian and EU frameworks:
•
83
https://laws.justice.gc.ca/eng/regulations/SOR-2019-150/index.html
January 2020 | 177
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0204.png
Study on the current level of protection of air passenger rights in the EU | Final Report
–
–
The expected level of care specified in the two frameworks is similar, however the
time thresholds for its provision differs between the regimes. Under the Canadian
rules, care should be offered after 2 hours, whereas under Regulation 261/2004 care
should be offered after 4 hours for a flight that is longer than 3,500 km. The
introduction of the Canadian framework creates an incremental obligation for EU
carriers above what is already specified under EU rules. In principle however, the
frameworks are coherent in that care has to be provided to passengers affected by
disruption, and, indeed, the EC’s proposal for the revision of Regulation 261/2004
puts forward that care should be provided to all passengers after 2 hours, irrespective
of the length of their flight.
Unlike the approach to care, the approach to compensation specified under the two
frameworks differs. Under the Canadian regime, the level of compensation varies
according the length of the delay, whereas under the EU framework the
compensation is fixed according to the length of the flight. For a flight between
Toronto and Frankfurt that has been delayed by 4.5 hours, passengers would be
entitled to C$400 (about €270) under the Canadian regime, whereas they would be
entitled to €600
under EU rules. The EU carrier will be liable for compensation in both
jurisdictions. It is the carrier’s responsibility to manage the risk of double
compensation (under both regimes) for individual passengers through maintaining
accurate records. Both passenger rights frameworks allow for compensation granted
under other regimes to be deducted from the total compensation paid to passengers
(so that the total is no more than the greater of the two entitlements). However,
particular complexity arises from the potential exemptions to the payment of
compensation. Both regimes recognise the application of extraordinary
circumstances, however the interpretation of these is not necessarily coherent
between the two regimes. Under Canadian rules, carriers are exempt from paying
compensation in cases where the delay is within the airline’s control but required for
safety purposes, whereas under EU rules the same situation would not constitute an
extraordinary circumstance
84
.
Principles
As introduced in Chapter 2, the consumer organisations which represent air passengers and
industry stakeholders generally agree on the following priorities for passengers affected by
disruption:
•
•
•
Care and assistance to be provided in the event of travel disruption;
Re-routing to be offered so that passengers may arrive at their destination as soon as
possible; and
Reimbursement and/or compensation to be paid where relevant.
Given these principles, Table 7.6 below summarises in which non-EU countries with a
regulatory framework on air passenger rights these principles are covered as part of consumer
protection legislation.
84
Based on the CJEU Case C-549/07 Wallentin-Hermann and Case C-257/14 van der Lans rulings
January 2020 | 178
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0205.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 7.6: EU vs non-EU air passenger rights legislation (regulatory) - general features
Country
(Regulatory
frameworks)
European Union
Brazil
Canada
China
India
Indonesia
Israel
Malaysia
Mexico
Morocco
New Zealand
Nigeria
Turkey
United States
Total (excluding EU)
Source: Steer analysis
Recognition of
extraordinary
circumstances
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
n/a
10
Care
obligation
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
Tarmac
delays only
12
Reimbursement or
re-routing
obligation
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
Denied boarding
only
13
Compensation
obligation
✓
✓
✓
✓
✓
✓
✓
✓
✓
Denied
boarding only
9
Extraordinary circumstances are recognized in ten of the non-EU countries included within the
study. Both Brazil and Malaysia do not recognise extraordinary circumstances and as a result
will provide care and reimbursement or re-routing for passengers in all cases, irrespective
whether a long delay or cancellation is due to the airline or not. As a result, the obligation to
compensate passengers also does not exist in both countries.
In the United States, the notion of extraordinary circumstances does not apply. Care is
provided for passengers during tarmac delays, which fall outside of the airlines’ responsibility.
Denied boarding is a commercial decision that airlines make and as a result will provide
passengers with reimbursement or re-routing options. The obligation to compensate also
applies in the case of denied boarding only.
In New Zealand, the existing legislation introduces delay as a general concept for which
damages can be claimed. As such, the national legislation has effectively transposed the scope
of the Montreal Convention into domestic transport, thus not including any obligation for
care.
Indonesia and China both recognise extraordinary circumstances, as well as specify obligations
for care, and reimbursement or re-routing if the disruption is due to the airline operations.
However, in China airlines are only required to provide care if the disruption is not due to an
extraordinary circumstance, whereas the European framework specifies the obligation for care
even if a delay is caused by weather. In the respective Indonesian and Chinese regulatory
frameworks the obligation to compensate passengers does not exist.
January 2020 | 179
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0206.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The application of the air passenger rights principles in non-EU countries with a voluntary
framework only is summarised in Table 7.7 below.
Table 7.7: EU vs non-EU air passenger rights legislation (voluntary) - general features
Country
(Voluntary
frameworks)
Australia
Japan
Qatar
Singapore
South Africa
United Arab Emirates
Total
Source: Steer analysis
Recognition of
extraordinary
circumstances
✓
✓
✓
✓
✓
✓
6
Care
obligation
✓
1
Reimbursement or
re-routing
obligation
✓
✓
✓
✓
✓
✓
6
Compensation
obligation
0
Extraordinary circumstances are recognised by all six countries, as is the obligation for
reimbursement or re-routing. In contrast to the countries with regulatory air passenger rights
frameworks where the majority recognised the obligation for compensation, this is up to the
airline’s discretion and as such not recognised by any of the countries with a voluntary
framework only. Unlike carriers in other countries, Australian carriers have specified in their
conditions of carriage what care obligations they have in place in case of disruptions not
caused by extraordinary circumstances.
The compensation structure across the different jurisdictions varies, as shown in Table 7.8.
Table 7.8: EU vs non-EU compensation amounts
Country/Region
Criteria
Base compensation rate
< 1500 km flight
Re-route arrival within 2 hours of
initially scheduled time
Base compensation rate
Re-route arrival within 3 hours of
initially scheduled time
Base compensation rate
> 3500 km flight
Re-route arrival within 4 hours of
initially scheduled time
3-6 hours waiting time
Delays and
cancellations
6-9 hours waiting time
> 9 hours waiting time
0-6 hours waiting time
Denied boarding
6-9 hours waiting time
> 9 hours waiting time
Compensation
€ 250
€ 125
€ 400
€ 200
€ 600
€ 300
€ 265
€ 465
€ 665
€ 600
€ 1,200
€ 1,600
€ 65
€ 100
European Union
Morocco
Turkey
Intra-EU > 1,500 km
or 1,500-3,500 km
flight
Canada
India
Cancellation
< 1-hour flight
1-2-hour flight
January 2020 | 180
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0207.png
Study on the current level of protection of air passenger rights in the EU | Final Report
> 2-hour flight
Re-route departure time 1-24 hours
after original departure
Re-route departure time >24 hours
after original departure
Base compensation rate
< 2000 km flight
Re-route arrival within 2 hours of
initially scheduled time
Base compensation rate
Re-route arrival within 3 hours of
initially scheduled time
Base compensation rate
> 4500 km flight
Re-route arrival within 4 hours of
initially scheduled time
€ 130
200% of ticket,
capped at €
130
400% of ticket,
capped at € 255
€ 300
€ 150
€ 500
€ 250
€ 750
€ 375
25% of ticket
price
7.5% of ticket
price
30% of ticket
price
15% of ticket
price
30% of ticket
price
25% of ticket
price
12.5% of ticket
price
Capped at 10
times the ticket
price
400% of
passenger’s fare
capped at USD
1,350 (€ 1,200)
200% of
passenger’s fare
capped at USD
675 (€ 610)
Denied boarding
Israel
2000-4500 km flight
Base cancellation compensation rate
Mexico
2-4 hours delay compensation rate
Base cancellation compensation rate
International flights
Re-route arrival within 3 hours of
initially scheduled time
3 -4 hours delay
Domestic flights
Base cancellation compensation rate
Re-route arrival within 1 hour of
initially scheduled time
New Zealand
Domestic flights
Damages resulting from the delay
Nigeria
Denied boarding due to overbooking
–
Base compensation
rate
United States
Denied boarding due to overbooking
–
Re-route arrival within
4 hours (international flights), and 2 hours (domestic flights)
Source: Steer analysis
In Canada, the United States, Nigeria, and Mexico compensation increases the longer the wait
time is. Contrastingly, in India, Morocco, and Turkey compensation increases the longer the
disrupted flight is. In Israel compensation increases the longer the wait time and the disrupted
flight is.
January 2020 | 181
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0208.png
Study on the current level of protection of air passenger rights in the EU | Final Report
In some jurisdictions, including the United States, Nigeria, Mexico, and India, compensation is
proportional to the ticket price whereas for others a fixed compensation limit is defined. The
issue of proportional compensation in regard to the ticket price is something that LCCs in
Europe feel strongly about (as discussed in Chapter 4).
Good practices
Several good practices which are applied in air passenger regimes outside of the EU on
reporting obligations and on complaint handling process have been identified.
Reporting
Airlines in the United States are required to report their statistics to the Department of
Transportation (DoT) who collects and processes the information. In addition to internal
monitoring, performance information is also published as part of Air Travel Consumer reports
which are published monthly on the Air Consumer website. The reports are aimed to provide
consumers with information on airline service quality and includes statistics such as on-time
flight performance/delays, mishandled baggage, overbooking, consumer complaints, and the
airline’s reports of loss, injury or death of animals during air transport.
Reporting requirements also exist under the Malaysian air passenger rights framework. The
Consumer Protection Code of Flight from 2016 (MACPC) specifies the obligation for airlines
and airports to submit a report to the Aviation Commission (MAVCOM) which contains
statistics about (repeated) complaints against airlines and violations and breaches of the code,
including also measures taken, and measures on the development of internal compliance
systems. MAVCOM publishes a bi-annual consumer report which is publicly available.
Information provision during the journey (including the causes of disruption)
In line with ICAO principles for information provision during travel, a number of regulatory air
passenger rights regimes (e.g. Canada, China, Malaysia) specify that passengers ought to be
kept informed about their journey, any disruption and the reasons for this. Time thresholds for
providing this information (e.g. within 30 minutes of the airline becoming aware of a potential
delay, passengers should be updated about this disruption). The provision of information
during the journey is not a requirement that exists under Regulation 261/2004, however this is
addressed by the Commission’s 2013 proposal for the revision of the Regulation.
Quick and accessible system of complaint handling
The regulatory regime in China specifies that three aspects that support quick and accessible
complaint handling for passengers, which do not exist in the EU approach:
•
•
•
airlines should proactively provide passengers with contact details (e.g. email address)
that passengers can use to register a complaint;
foreign airlines should be able to handle complaints in mandarin (essentially setting a
language requirements that corresponds to the market served); and
deadlines are set by which airlines must provide update to passengers on the status of
their complaint (e.g. 10 days).
Complaint monitoring and handling with the use of technology
The Malaysian Aviation Commission (MAVCOM) which was established in 2016 to regulate
economic and commercial matters related to civil aviation in Malaysia provides a good
January 2020 | 182
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0209.png
Study on the current level of protection of air passenger rights in the EU | Final Report
example of how technology can be integrated into the complaint handling process to facilitate
awareness and monitoring.
MAVCOM has developed a consumer awareness platform called FlySmart, which has been set
up as a consumer-centric
initiative to improve passenger’s awareness
of their rights. The
platform, which can be downloaded in the form of a mobile application, provides passengers
with travel alerts, articles and tips, as well as their travel rights.
Furthermore, technology is an integral part of the complaints management system set up by
MAVCOM. The system is fully integrated, thereby allowing MAVCOM to review a complaint
received from a passenger within a short time period before sending it through to the relevant
airline or airport. The airline or airport is then able to provide a full resolution directly to the
passenger, a copy of which is provided to MAVCOM too. As the regulator, MAVCOM
furthermore has overview over all complaints, their status and resolution which makes it
possible to address delays or unsatisfactory resolutions more quickly.
In Brazil, the ODR body Consumidor was introduced in 2018, following strong growth in the air
transport sector after deregulation of the market. Data from the ODR on the level of
complaints is used by the Brazilian air traffic regulator ANAC to undertake enforcement at a
system level. Consumidor also produces an airline ranking, based on a resolution index which
is determined by passenger ratings. This has been found to act as an incentive for airlines.
Impact on interlining and extra-territorial issues
Airlines have highlighted issues around interlining and extra-territorialism that result from
inconsistencies due to overlaps of different regimes. There are also many extraterritorial
aspects which airlines argue can have a negative impact on the competitive position of some
carriers.
In the EU, Regulation 261/2004 can affect the competitive position of EU carriers who have to
comply with it on routes to and from the EU when no equivalent passenger protection regime
is in place in the third country where they operate from. EU and non-EU airlines stated that
the application of the Regulation should be limited to a flight basis instead of a journey basis
85
to ensure fair competition and not to put an unfair economic burden on them.
A medium-sized network carrier stated that other costs associated with non-EU air passenger
rules are averaging around €1.8 million per year and have remained quite stable from year to
year.
85
Regulation 261/2004, as clarified in Case C-11/11 Folkerts, applies on a journey basis (including
connecting points) rather than on an individual flight basis: “The compensation
for long delays is also
due to passengers of directly connecting flights reaching their final destination with a delay of at least
three hours. The delay to be taken into account is the delay at arrival, including in case of flight
connections. It does not matter whether the delay occurred at the departure airport, at the connecting
airport(s) or at any stage of the journey, only the delay at the final destination of the journey is relevant
for the right to compensation.”
January 2020 | 183
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0210.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Summary of findings
ICAO has established a set of Core Principles on Consumer protection for before, during and
after travel. The EU legislative framework is generally consistent with these Core Principles
through a combination of requirements specified in Regulation 1008/2008, Regulation
2111/2005 and Regulation 261/2004. The gaps between the ICAO Core Principles and the EU
framework (e.g. on keeping passengers informed throughout their journey) are addressed by
the 2013 Proposal for the revision of Regulation 261/2004.
In response to an increasing number of countries adopting air passenger rights regulations,
IATA also defined a set of IATA Core Principles on Consumer Protection in 2013, which are not
mandatory in nature but voluntary commitments by IATA airlines. The IATA Core Principles
broadly correspond with the ICAO ones and also correspond with the EU framework, with the
exception of the following EU legal requirements:
•
•
•
Provision of care and assistance to passengers in all cases of disruption, including those
outside the control of the airlines;
Provision of reimbursement or re-routing in the case of cancellations, including those
outside the control of the airlines; and
Provision of reimbursement in the case of very long delays of five hours or more, including
those outside the control of the airlines.
In non-EU countries, the approach to protections available to air passengers ranges from
regulatory regimes (as in the EU and Malaysia) to voluntary ones (as in Australia and the UAE).
Typically, regulatory and voluntary regimes both recognise an obligation for re-
routing/reimbursement, but none of the voluntary regimes reviewed offer compensation to
passengers affected by disruption. Further, regulatory regimes in Brazil, China, Indonesia and
Malaysia do not offer compensation in addition to reimbursement. The approach towards
provision of care under extraordinary circumstances is also weaker under voluntary regimes
than under regulatory ones.
A number of good practices were identified through the review of air passenger rights outside
the EU, including the following:
•
Monitoring of compliance, including formal reporting requirements for airlines to provide
authorities with information on operational performance and claim handling
performance;
The requirement for airlines to provide information to passengers about their journey
during the journey (including the causes of disruption);
The requirement for airlines to provide contact details to passengers, handle local
languages and adhere to deadlines for keeping passengers up to date on the status of
their complaints; and
Transparent claim handling processes and platforms between airlines and authorities,
leveraging suitable technologies.
•
•
•
January 2020 | 184
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0211.png
Study on the current level of protection of air passenger rights in the EU | Final Report
8 Impact of airline insolvencies
Introduction
This chapter presents the analysis of recent insolvencies and the number of passengers
affected by these. It presents an estimate of the costs incurred by passengers as a result of the
insolvencies and provides a review of the possible protection mechanisms, including rescue
fares, available to passengers. The analysis is supported by four case studies on airline
insolvencies: Cyprus Airways, Monarch Primera Air and Air Berlin (see Appendix G).
Please note that the entire analysis displayed in this chapter had been completed by the end
of June 2019. After the bankruptcies of Adria, Thomas Cook UK, Aigle Azur and XL Airways
France in the third quarter of 2019, we updated the analysis to reflect the number of airlines,
and passengers affected. However, it was not possible to also update the cost analysis, so its
results cover the insolvencies until the end of June 2019. This is clearly specified in each
section, table and figure shown.
Airline insolvencies
Number of airlines insolvencies
We identified airlines which had ceased operations between January 2011 and October 2019
in a manner which would have caused disruption to passengers, which were registered in the
EU and provided at least some scheduled seats. As there is no comprehensive source for such
insolvencies, this list displayed below has been built based on a number of sources including
primarily data from the Official Airline Guide (OAG) combined with additional verification from
stakeholders. This list was added to the insolvencies identified by previous reports, to create a
complete list of insolvencies in the EU. It is displayed in Appendix H. It lists the 87 insolvencies
of airlines who offered scheduled seats that ceased operations between 1 January 2011 and 1
October 2019.
Figure 8.1 shows that the frequency of airlines ceasing operations has fluctuated considerably
since 2011: a peak of 19 insolvencies were observed in 2012, while in 2016 only 5 were
identified. Over the period defined for this study, the average number of insolvencies per year
was 9.7.
January 2020 | 185
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0212.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 8.1: EU airlines ceasing operations 2011-October 2019
20
18
16
Number of airlines
14
12
10
8
6
4
2
-
2011
2012
2013
2014
2015
2016
2017
2018
2019
Source: Steer analysis. Note: 2019 includes insolvencies up to October only.
Figure 8.2 shows that charter/leisure airlines (including Thomas Cook and Monarch) made up
just under half of airline insolvencies (49%) between 2011 to 2019, whilst scheduled short-haul
airlines (such as Adria) made up a further 38%. Low-cost airlines were responsible for 10% of
insolvent airlines, whilst scheduled mixed carriers made up just 2%. Note that this does not
necessarily mean that the largest number of passengers nor the greatest impacts were the
result of charter and scheduled short-haul airlines, as capacity offered by the different carriers
varies.
Figure 8.2: Proportion of insolvent airlines by airline service type between 2011-October 2019
Scheduled Long-haul only
0%
Scheduled mixed
2%
Scheduled short-haul only
38%
Low cost
10%
Charter/Leisure
0%
10%
20%
30%
Proportion of Insolvent Airlines
40%
49%
50%
60%
Source: Steer analysis.
Passengers affected and stranded
When an airline becomes insolvent the number of passengers it affects will vary depending on
the nature of the services the airline had provided, the timing of the insolvency and the
process by which the airline became insolvent. Several possible scenarios for insolvency are
set out below:
January 2020 | 186
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0213.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
•
•
If an airline becomes insolvent, but its operations do not stop and are taken over by
another operator, then passengers will not experience any impact from the insolvency.
These cases are excluded from the analysis.
If an airline ceases operation due to insolvency, but its operations are later taken over by
another airline, there will be a gap in services which may cause some passengers to be
stranded or to lose previously booked tickets. If the new airline purchases only some of
the assets of the defunct airline, rather than its entire operations, then the affected
passengers may have no claim against it. The new carrier might nonetheless agree to
transport some or all of the passengers.
The time that the carrier ceases operations may impact the number of passengers: if it
takes place in a low season this will minimise the effect on passengers. This timing may
occur by chance or because the airlines’ income is lower during
the off-peak season, but
in some cases has resulted from a deliberate decision by the licensing authority
86
to
withdraw the license at a time when impacts would be minimised (a prerequisite of this is
active monitoring by the licensing authority).
If an airline ceases operations during high season or when, immediately before ceasing
operations, it has been selling as many tickets as possible to remain solvent, this will have
the greatest impact on passengers.
The impact of an insolvency on passengers is therefore affected by when and how the
insolvency occurs. This is driven to an extent by bankruptcy laws in each Member State. Other
characteristics of the airline will also change its impact on passengers, such as its network of
operations and load factor (which impact the number of passengers affected) and whether it is
a long- or short-haul carrier (which impact the magnitude of costs incurred by passengers
affected).
Where available, we used information collected from stakeholders or reported in the press at
the time that the airline ceased operations, for the number of passengers stranded, or booked
to travel, and therefore impacted by the insolvency of a carrier.
Where this information was not available, estimates of the number of passengers impacted
were derived from data on the capacity that the airline provided. This was based on the
number of seats provided (based on OAG data, or size and composition of fleet where this was
not available) combined with a load factor to estimate weekly passengers transported. We
then used typical passenger stay lengths to estimate the number of passengers that would
have been stranded, and advance booking periods to estimate the number passengers who
would have been booked to travel but unable to do so.
These figures were then adjusted to take account for validation of our estimates against
airlines for which we had data from stakeholders or other sources.
The approach to estimating passenger impacts is set out in the figure below, and each
individual element of the process is described in detail in the following text.
86
As per Regulation 1008/2008. Note that this Regulation is under possible revision
January 2020 | 187
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0214.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 8.3: Estimation of number of passengers affected
Source: Steer
Where we were not able to obtain information from stakeholders or from press reports, we
estimated the number of passengers impacted on the basis of the capacity that the airline
provided. To do this, we first estimated the number of passengers the airlines carried, based
on the following calculation:
Number of passengers
carried per week
=
Seats transported by airline per week
* Load factor
The number of seats transported by the airline based on the reports in OAG in the month
before it became insolvent (as afterwards the data is no longer available). In some cases, OAG
did not include information on the number of seats provided. In these cases, we had to
estimate the number of seats offered weekly from the airlines’ fleet, taking into account the
nature of its operations (for example that a short haul aircraft will typically operate five or six
flights per day whereas a long-haul aircraft will typically operate one or two).
Table 8.1 shows the load factors used in the analyses and how they have been derived.
Table 8.1: Assumed load factors by airline classification (2018)
Airline classification
Charter/leisure
Low-cost
Scheduled short-haul only
Scheduled mixed short and
long
Long-haul
Load factor
92%
94%
82%
83%
85%
Sample
Average of Thomas Cook and TUI
Average of Ryanair and easyJet
Average of IAG and Air France-KLM short-haul
Average of scheduled short-haul and long-haul
Average of IAG and Air France-KLM long-haul
Source: Steer analysis of airline annual reports and industry press
For passengers to be stranded by an airline ceasing operations, the airline must cease
operations in the period between when they departed and when they returned, i.e. during the
period of their stay; similarly, for booked affected passengers and booking period. We
therefore estimated the number of stranded and other affected passengers on the basis of the
following calculations:
January 2020 | 188
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0215.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Number of stranded
passengers
Number of booked
affected passengers
=
Passengers carried per week
* Average length of stay (weeks)
* 0.5 (returning passengers)
Passengers carried per week
* Average booking horizon (weeks)
* 0.5 (return bookings)
=
Typical passenger stay lengths were calculated from Eurostat and UK ONS data sets, whilst the
average booking horizon was calculated from unearned airline revenue data and cross-
checked with booking horizons calculated by Yieldr. Different lengths of stay were calculated
for Business, Leisure and VFR passengers as well as for short and long-haul passengers.
Results
Figure 8.4 shows the number of passengers affected by airline insolvencies over the study
period, January 2011 to October 2019. In total, between 2011 and 2019, we estimate that 5.6
million passengers were impacted by airline insolvencies in some way.
In 2017 this equated to 0.09% of total EU passengers being affected or stranded due to airline
failure compared with 0.02% in 2011. 2017 was heavily influenced by the demise of Monarch
in October, which accounted for 88% of total affected and stranded passengers. In the context
of the UK market Monarch’s closure affected 0.65% of total UK passengers in 2017, or 1.17%
when viewed against the UK - western European market. Similarly
NIKI’s closure in 2018
accounted for 47% of affected and stranded passengers, whilst it also affected 2.70% of 2018
passengers departing Austria.
The proportion of total passengers affected in 2019 has been heavily influenced by the demise
of Thomas Cook, Germania, Adria, Aigle Azur and WOW air.
Figure 8.4: Passengers impacted by airline insolvencies (2011-October 2019)
1,800
1,600
0.16%
0.14%
0.12%
Proportion of total passengers, %
Number of passengers, 000s
1,400
1,200
0.10%
0.08%
1,000
800
600
400
200
-
2011
2012
2013
2014
2015
2016
2017
2018
2019
0.06%
0.04%
0.02%
0.00%
Passengers stranded
Passengers affected
Proportion of total passengers
Source: Steer analysis
Table H.1 in Appendix
H
shows the number of passengers that were affected by each of the
insolvencies identified during the study period. Since 2017 there has been a marked increase
January 2020 | 189
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0216.png
Study on the current level of protection of air passenger rights in the EU | Final Report
in the numbers of passengers affected versus previous years owing to a larger proportion of
higher-profile insolvencies occurring. The sudden closures of relatively established airlines
such as Monarch (2017), NIKI (2018), Primera Air (2018), WOW (2019), Germania (2019) and
Thomas Cook UK (2019) contributed to the majority of affected passengers.
Table 8.2: Passengers affected by airlines ceasing operations (2011-October 2019)
Airline
Country
Date of
ceasing
operations
2019
2019
2019
2019
2019
2019
2019
2018
2018
2018
2018
2018
2018
2018
2018
2018
2018
2018
2018
2017
2017
2017
2017
2017
2017
2017
2016
2016
2016
2016
2016
Passengers affected
Notes
Stranded
Booked
Thomas Cook UK
87
Germania
Aigle Azur
WOW Air
XL Airways France
Adria Airways
BMI Regional
NIKI
Primera Air
Small Planet Airlines GmbH
Small Planet Airlines
Small Planet Airlines
Primera Air Nordic
Nextjet
Cobalt Aero
Sky Work Airlines
VLM Airlines D.D.
FlyViking
Surf Air Europe
Monarch Airlines
Air Berlin
Atlas Atlantique Airlines
Fly KISS
Citywing
Darwin Airline
Belair Airlines
Air Mediterranee
Limitless Airways
Air Via
VLM Airlines N.V.
European Coastal Airlines
LTD
UK
DE
FR
IS
FR
SI
UK
AT
DK
DE
LT
PL
LV
SE
CY
CH
SI
NO
UK
UK
DE
FR
SI
UK
CH
CH
FR
HR
BG
BE
HR
140,000
20,000
27,244
10,000
7,402
9,375
5,330
40,000
18,110
8,662
6,248
6,248
4,155
5,471
2,600
2,000
150
1,212
8
110,000
3,000
1,103
585
550
409
280
5,793
2,550
1,442
710
441
800,000
88
260,000
190,067
168,796
71,132
50,975
29,023
400,000
174,032
67,337
48,576
48,576
39,927
29,791
18,000
10,000
8,373
6,598
60
800,000
100,000
8,576
3,188
3,071
2,226
1,525
45,033
19,821
11,266
8,322
2,404
Data available at high-level
only
Data available
Estimated
Stranded pax data available
Estimated
Estimated
Estimated
Data available
Estimated (see case study in
Annex H)
Estimated
Estimated
Estimated
Estimated
Estimated
Data available
Data available
Stranded pax data available
Estimated
Estimated
Data available (see case
study in Annex H)
Data available (see case
study in Annex H)
Estimated
Estimated
Stranded pax data available
Estimated
Estimated
Estimated
Estimated
Estimated
Stranded pax data available
Estimated
87
This refers to Thomas Cook UK, which is the airline that ceased operating. As the other carriers in the
group are still operating, they do not feature in this analysis.
88
UK CAA figures indicate that ATOL expects more than 360,000 booking refund claims for 800,000
passengers
January 2020 | 190
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0217.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline
Country
Date of
ceasing
operations
2015
2015
2015
2015
2015
2014
2014
2014
2014
2014
2014
2014
2014
2013
2013
2013
2013
2013
2013
2013
2013
2013
2013
2013
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2011
2011
Passengers affected
Notes
Stranded
Booked
Cyprus Airways
Estonian Air
Intersky
SkyGreece Airlines
Air Lituanica
Linxair
Fly Romania
Belle Air Europe
4YOU Airlines
Livingston Air
Danube Wings
Krohn Air
Hamburg Airways
Jetalliance
Orbest Orizonia Airlines
Helitt Lineas Aereas
FLM Aviation
XL Airways Germany
Medallion Air
OLT Express Germany GmbH
Hello
Sky Wings Airlines
FlyNonstop
Avies Air Company
Spanair
Wind Jet
MALEV Hungarian Airlines
Cimber Sterling
Astraeus
Islas Airways
Air Finland
ItAli Airlines
Air Poland
Skyways
Mint Airways
Ryjet
Cirrus Airlines
City Airline
Freedom Airways
Tor Air AB
Czech Connect Airlines
Air Alps Aviation
Sweden Airways AB
Hamburg International
Livingston
CY
EE
AT
GR
LT
SI
RO
IT
PL
IT
SK
NO
DE
AT
ES
ES
DE
DE
RO
DE
CH
GR
NO
EE
ES
IT
HU
DK
UK
ES
FI
IT
PL
SE
ES
ES
DE
SE
AT
SE
CZ
AT
SE
DE
IT
300
4,937
3,185
1,955
1,734
5,770
4,624
3,202
2,164
1,458
1,379
856
190
10,097
6,491
5,420
3,606
3,606
2,885
3,058
1,500
412
927
158
20,000
32,360
30,000
13,258
3,056
3,914
2,726
3,509
2,164
5,134
1,442
1,442
1,610
1,232
850
501
685
421
37
5,403
3,196
28,000
26,883
17,345
15,196
9,445
45,063
33,760
33,480
16,899
11,334
10,720
4,666
1,476
78,861
50,696
42,133
28,165
28,165
22,532
16,651
5,000
3,199
2,333
863
219,689
205,000
119,431
72,194
23,758
21,313
21,195
19,109
16,899
12,000
11,266
11,266
8,769
6,711
6,607
3,894
3,733
2,293
290
42,252
23,853
Data available (see case
study in Annex H)
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Booked pax data available
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Data available
Estimated
Estimated
Estimated
Stranded pax data available
Booked pax data available
Stranded pax data available
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Booked pax data available
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
January 2020 | 191
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0218.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline
Country
Date of
ceasing
operations
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
Passengers affected
Notes
Stranded
Booked
Pyrenair
Athens Airways
Viking Hellas Airlines
Amsterdam Airlines
Comtel Air
Dubrovnik Airline
Hellenic Imperial Airways
Eagles Airlines
Viking Airlines
Robin Hood Aviation
Romavia
Source: Steer analysis
ES
GR
GR
NL
AT
HR
GR
IT
SE
AT
RO
2,885
3,227
1,580
1,490
1,442
1,442
1,134
1,044
503
299
163
22,532
18,777
12,934
12,273
11,266
11,266
8,553
4,969
3,908
1,657
1,264
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Estimated
Total costs incurred by passengers
The cost analysis presented in this section does not include insolvencies in the third quarter of
2019 (i.e. Thomas Cook UK, Aigle Azur, Adria and XL Airways France).
Structure of costs incurred
The way in which a passenger is impacted by an airline insolvency will have different
implications on the level of cost borne by the passenger. Table 8.3 outlines the components of
costs immediately incurred for each category of passenger. As stranded passengers are
already at their destination, only the return segment of their flight is unusable, and a one-way
ticket home will need to be purchased. Passengers with future bookings will lose both the
outbound and return segments of their tickets and are able to decide whether they still intend
to travel in the future. For this study we have assumed that 75% of passengers will rebook a
new return flight with another carrier, whilst the remaining 25% will forfeit their trip. In
addition to the cost of the flight, costs relating to additional accommodation and
communication for stranded passengers and non-refundable accommodation and services for
other affected passengers have also been taken into consideration.
January 2020 | 192
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0219.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 8.3: Costs incurred by passenger type
Loss of original
flight
Outbound
Return
Purchase of
replacement flight
Outbound
Return
Loss of non-
refundable
accommodation
and other
services
Additional
accommodation,
food, etc.
Information
Stranded
Booked
(does not travel)
Booked
(rebooks)
Source: Steer analysis
-
✓
✓
✓
✓
✓
-
-
✓
✓
-
✓
-
✓
-
✓
-
✓
89
✓
-
-
Overview of assumptions
The costs of each of these elements has been estimated using publicly available information,
including:
•
•
•
Dummy bookings of flights to estimate the incremental booking costs at different time
horizons;
Tourism statistics for average cost of accommodation and care;
Cost of accessing information. The estimated cost of making a call or accessing wifi has
been estimated at
€3.50.
Whilst roaming charges have now been removed in the EU, it
may be required that passengers need to pay to access wifi or call centres will charge a
fee.
Depending on the type of protection a passenger has (if any), they may be able to recover a
proportion of these costs. Table 8.4 below outlines which costs are recoverable under
different protection mechanisms:
•
•
•
•
•
Passenger Travel Directive;
Schedule Airline Failure Insurance (SAFI)
90
;
Credit card protection and chargeback;
Hahn Air
91
; and
IATA Billing and Settlement Plan (BSP)
92
.
These protection mechanisms are described in more detail in the next section. Passengers,
who are travelling as part of a package are protected under the Package Travel Directive (PTD).
To a certain extent this protection extends to passengers with linked travel arrangements
(LTA) under the new PTD, applicable since July 2018, when the airlines are the facilitator of the
LTA.
89
90
Assumes 20% of passengers are required to extend their stay by one night
SAFI cover ensures that a passenger is protected in the event that the airline with which the tickets
were booked with declares bankruptcy.
91
Provides protection for passengers with Hahn Air (HR-169) tickets in case of insolvency of one of Hahn
Air’s partners.
92
A system aimed to facilitate and simplify the selling with IATA accredited passenger sales agents by
enabling to make only one single payment to the BSP to cover sales on all BSP airlines.
January 2020 | 193
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0220.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 8.4: Recoverable costs under different protection schemes
Cost
Original flight
Replacement flight
Non-refundable
accommodation and services
Additional accommodation
Communication
Compensation for damages
Source: Steer analysis
Package
travel
✓
✓
✓
✓
✓
✓
SAFI
✓
✓
93
Credit
Card
✓
Hahn
Air
✓
✓
94
BSP
✓
No
cover
Results
Figure 8.5 shows the estimated
proportion of passengers
with different types of cover for the
insolvencies between 2011 and June 2019. These estimates are based on assumed passenger
profiles by airline type, journey purpose and origin, which determine typical levels of cover
sought by each group. Since July 2018, some passengers who previously would have been
considered flight-only ticket holders may, under the new Package Travel Directive, be covered
by the provisions for linked travel arrangements. Forms of protection vary widely year-on-
year, primarily a consequence of the type of airline going insolvent in each year. For example,
in 2016, the proportion of passengers covered by the Package Travel Directive (PTD) is high, as
charter passengers accounted for 87% of the total affected passengers in that year.
Figure 8.5: Proportion of passenger cover for airline insolvencies by year (2011-July 2019)
100%
Passengers Covered, proportion
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
2011
PTD
2012
SAFI
2013
2014
2015
2016
2017
BSP
2018
No Cover
2019
Credit card only
Hahn Air
93
Replacement flight provided when stranded only, not if the airline declares bankruptcy before the
outbound trip.
94
Provided as an allowance of €125 which may or may not cover the incremental cost of
a new ticket in
full.
January 2020 | 194
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0221.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Source: Steer analysis. Note that 2019 only covers January to July
Once the contribution of PTD is removed the proportion of passengers by cover type are more
consistent as seen in Figure 8.6. Between 2011 and 2016 around 65% of consumers remained
without cover, whilst this has reduced to around 55% between 2017 and 2019. The differences
in proportion are influenced by the composition of airline types becoming insolvent in each
year.
Figure 8.6: Proportion of passenger cover for airline insolvencies by year (PTD excluded)
Source: Steer analysis. Note that 2019 only covers January to July
Figure 8.7 shows the protection status of passengers of insolvent airlines between 2011 and
2019. 45% of passengers in the period were estimated to be travelling as part of a package and
thus would be covered by the PTD, whilst only a further 2% were covered by scheduled airline
failure insurance (SAFI). 13% of passengers will have some protection from their credit card,
whilst a further 3% may be covered by IATAs Billing and Settlement Plan (BSP). It should be
noted that all passengers, excluding those covered under the PTD, would not have had all their
incurred costs covered; for example, the other forms of protection would not cover costs
associated with required accommodation after airline failure. It is estimated that 34% of
consumers did not have any form of protection (61% when PTD is excluded).
January 2020 | 195
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0222.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 8.7: Proportion of passenger cover for airline insolvencies (2011-July 2019)
34%
PTD
45%
SAFI
Credit card only
Hahn Air
BSP
No Cover
3%
0%
13%
5%
Source: Steer analysis. Note that 2019 only covers January to July
Figure 8.8 shows the total costs that we estimate to have been incurred by passengers as a
result of airline insolvencies between 2011 and 2019. This has been divided into recoverable
and non-recoverable costs to the consumer. It has been estimated that between only 12% and
18% of total costs are recoverable, depending on airline type and originating country of the
consumer. Note that, since costs that are involved in either repatriating passengers or for
providing alternative outbound and return flights for their package/linked travel arrangement
trip to be completed are incurred by the travel organiser/trader facilitating linked travel
arrangement (who may call on their insurance or guarantee fund) and not by the passengers
themselves, these costs have not been included here as these passengers do not incur
additional costs.
Figure 8.8: Recoverable and non-recoverable costs incurred
300
20%
18%
Proportion of costs recoverable, %
Total costs to passenges, € millions
250
200
150
100
16%
14%
12%
10%
8%
6%
4%
50
-
2011 2012
Recoverable Cost
2013
2014
2015 2016
2017
2018
2019
Non-Recoverable Costs
2%
0%
Non-recoverable costs, %
January 2020 | 196
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0223.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Source: Steer analysis. Note that 2019 only covers January to July
Table 8.5 shows the average cost we estimate to have been incurred by each affected
passenger type. The costs are highest for passengers who choose not to travel, primarily owing
to the increasing prevalence of pre-paid accommodation, which would not be refundable in
the event of not travelling. Stranded passengers need to purchase a replacement one-way
flight at very late notice, in addition to an additional night’s accommodation. Passengers who
rebook their trip incur the cost of rebooking a replacement flight at shorter notice than for
their first flight, which generally leads to a higher cost of purchase.
Table 8.5: Average incremental cost incurred per passenger by type over 2011-July 2019
Stranded
Information
€
3.68
No travel
-
Rebook
-
Assumption
Care (including
additional
accommodation)
€
112
-
€
30
Cost of original
flight ticket(s)
Cost of replacement
flight for
repatriation or
replacement travel
€
196
€
264
-
€
156
Non-refundable
components (e.g.
hotel, car-hire,
activities)
Total
-
€
372
-
One additional day of trip, including
accommodation, food and other necessary
spending. Assumes 20% of rebooking
passenger require an extended stay. 50%
of accommodation costs applied to Leisure
and VFR bookings assuming they will share
accommodation.
Single ticket for stranded passengers,
return ticket for affected passengers
95
For rebooked, the incremental cost of a
return flight booked at half the average
booking period. For stranded passengers, a
one-way flight booked at half the average
length of stay
Based on weighted average length of stay
and average price by journey type.
50% of costs attributed to Leisure and VFR
passengers assuming they will share
accommodation.
Assumes 40% of passengers have pre-paid
for their accommodation
€
379
€ 568
€
185
Source: HCIP, OAG, Skyscanner, Steer analysis. Note that 2019 only covers January to July
Table 8.6 shows the weighted proportion of these costs that we estimate to have been
recoverable depending on the passenger’s situation and the type of cover they had. This
weighted average is calculated based on the total passenger mix, coverage mix and journey
origin throughout the time series. Rebooking passengers were able to recoup the largest
proportion of their trip back, however the overall rate is still low, whilst those who did not
travel were affected heavily by pre-booked accommodation. Stranded passengers could only
95
This is zero for stranded and rebooking passengers as these passengers still travel and would have
had to have purchased a ticket in the first instance. Only the cost of the replacement ticket can be
considered as additional cost in these circumstances.
January 2020 | 197
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0224.png
Study on the current level of protection of air passenger rights in the EU | Final Report
reclaim a significant proportion of incurred expenses if they have SAFI or a Hahn Air-issued
ticket.
Table 8.6: Proportion of incremental cost recoverable by passenger type
SAFI
Credit Card
Hahn Air
BSP
Nothing
Weighted average
Source: Steer analysis
Stranded
77%
16%
99%
19%
0%
8%
No travel
32%
32%
42%
42%
0%
14%
Rebooked
49%
50%
93%
63%
0%
21%
Total
45%
40%
80%
50%
0%
17%
The protection offered by the different schemes depends primarily on the situation which the
passenger is in:
•
For those who do not travel, most of the protection schemes refund the costs of the
original flights, and the only non-recoverable costs are therefore any non-refundable
accommodation costs. The passenger loses the benefit of making his/her planned trip, but
this cannot be quantified in monetary terms.
For those who rebook, only the cost of the original flights is refunded, and they may have
to pay for short-notice and therefore expensive replacement flights. Again, there is little
difference between the coverage offered by the schemes. The slight variations in the
proportion of costs which are recoverable result from factors such as the date at which
the insolvencies on which these figures are based took place (this may affect, for example,
the relative costs of flights against accommodation). Hahn Air stands out in this situation
as it provides an allowance of €125 to rebooking passengers to
help bridge the gap
between the original and new fare, although depending on booking horizon and journey
length of the new ticket, this may or may not be of significant help.
Passengers who are stranded and have SAFI or Hahn Air cover are refunded the cost of
their original flight in addition to the (likely very expensive) incremental cost of any
additional flight. Only the cost of the original flight is recoverable from the other
protection schemes identified, and passengers will incur the incremental cost of an
additional flight and other additional costs too.
•
•
Table 8.7 shows the total estimated costs incurred by passengers and the proportion of these
costs that were recoverable for insolvencies in the study period. The change in level of cover is
largely dependent on the types of airlines that ceased operations in each year and the States
within which they operated; this affects the availability of protection via SAFI or other
methods.
Air Berlin’s total cost to passengers was heavily reduced by the government’s bridging loan
allowing for a wind down in operations. This cost would have been significantly higher to
passengers if this was not implemented. Costs per passenger are high as Air Berlin operated
long-haul flights, which heavily impacts costs for stranded and rebooking passengers.
Monarch’s costs were reduced by the UK government’s decision to repatriate all stranded
passengers, regardless of cover. It was estimated that 50% of passengers with forward booking
were travelling as part of a package and this was reflected in the model. Non recoverable cost
appear higher as most insurance covers stranded passengers most effectively.
January 2020 | 198
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0225.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 8.7: Total estimated costs to passengers and proportion of costs recoverable 2011-July 2019
Airline
Monarch Airlines
96
NIKI
Spanair
Wind Jet
Primera Air
Air Berlin
WOW Air
MALEV Hungarian
Cimber Sterling
Primera Air Nordic
Nextjet
BMI Regional
Fly Romania
Estonian Air
Belle Air Europe
Germania
Islas Airways
ItAli Airlines
Intersky
Athens Airways
OLT Express Germany
Cobalt Aero
Skyways
Sky Work Airlines
Air Lituanica
Cirrus Airlines
VLM Airlines N.V.
VLM Airlines D.D.
FlyViking
City Airline
Small Planet Airlines
Jetalliance
Eagles Airlines
Krohn Air
Small Planet Airlines
Small Planet Airlines
Air Mediterranee
Czech Connect
Airlines
Orbest Orizonia
Airlines
Fly KISS
Helitt Lineas Aereas
Citywing
Linxair
Member
State
UK
AT
ES
IT
DK
DE
IS
HU
DK
LV
SE
UK
RO
EE
IT
DE
ES
IT
AT
GR
DE
CY
SE
CH
LT
DE
BE
SI
NO
SE
DE
AT
IT
NO
LT
PL
FR
CZ
ES
SI
ES
UK
SI
Costs to
passengers
€ 2018
€ 217,059,981
€ 146,068,630
€ 81,338,078
€ 71,655,981
€ 63,695,312
€ 63,576,183
€ 58,460,107
€ 53,750,135
€ 29,932,925
€ 14,613,230
€ 13,784,868
€ 13,429,602
€ 12,051,546
€ 11,849,771
€
11,364,755
€ 9,932,351
€ 8,836,926
€ 7,922,820
€ 7,645,549
€ 7,372,036
€ 7,155,151
€ 6,942,809
€ 6,407,374
€ 4,737,990
€ 4,163,164
€ 3,635,694
€ 3,200,966
€ 3,120,200
€
3,052,881
€ 2,782,642
€ 2,466,435
€ 2,368,804
€ 2,039,904
€ 2,024,967
€ 1,779,269
€ 1,779,269
€ 1,548,170
€ 1,547,648
€ 1,522,803
€ 1,442,128
€ 1,431,581
€ 1,387,531
€ 1,367,729
Costs per
passenger
€ 2018
€ 477.05
€ 397.85
€ 406.69
€ 362.19
€ 397.58
€ 739.72
€ 391.85
€ 431.07
€ 420.32
€
397.58
€ 469.09
€ 469.09
€ 376.64
€ 446.85
€ 371.56
€ 567.56
€ 420.32
€ 420.32
€ 446.85
€ 401.98
€ 435.63
€ 403.91
€ 449.24
€ 473.18
€ 446.85
€ 420.32
€ 424.75
€ 438.74
€ 469.09
€ 420.32
€ 567.55
€ 526.42
€ 407.16
€ 440.03
€ 567.55
€ 567.55
€ 532.69
€ 420.32
€ 526.42
€ 458.55
€ 526.48
€ 459.22
€ 531.91
Non-
recoverable
79.3%
87.20%
80.00%
86.90%
85.80%
73.80%
85.10%
86.90%
87.60%
87.40%
78.80%
65.70%
89.40%
85.00%
86.30%
84.60%
81.30%
81.30%
81.60%
82.60%
73.10%
88.50%
80.40%
81.80%
85.90%
74.00%
84.50%
85.30%
87.30%
79.60%
84.60%
92.40%
81.70%
87.20%
92.60%
92.60%
91.70%
80.70%
91.50%
87.10%
91.50%
65.90%
93.70%
Recoverable
20.7%
12.80%
20.00%
13.10%
14.20%
26.20%
14.90%
13.10%
12.40%
12.60%
21.20%
34.30%
10.60%
15.00%
13.70%
15.40%
18.70%
18.70%
18.40%
17.40%
26.90%
11.50%
19.60%
18.20%
14.10%
26.00%
15.50%
14.70%
12.70%
20.40%
15.40%
7.60%
18.30%
12.80%
7.40%
7.40%
8.30%
19.30%
8.50%
12.90%
8.50%
34.10%
6.30%
96
Monarch costs take account of repatriation of stranded passengers at no additional cost.
January 2020 | 199
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0226.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline
Hamburg Int’l
FlyNonstop
European Coastal
Airlines LTD
Darwin Airline
Air Alps Aviation
FLM Aviation
XL Airways Germany
Astraeus
Livingston
Air Finland
Belair Airlines
Limitless Airways
Medallion Air
Robin Hood Aviation
Pyrenair
SkyGreece Airlines
4YOU Airlines
Air Poland
Viking Hellas Airlines
Livingston Air
Amsterdam Airlines
Avies Air Company
Danube Wings
Air Via
Mint Airways
Ryjet
Comtel Air
Dubrovnik Airline
Atlas Atlantique
Airlines
Hellenic Imperial
Airways
Hello
Freedom Airways
Tor Air AB
Viking Airlines
Sky Wings Airlines
Hamburg Airways
Romavia
Sweden Airways AB
Surf Air Europe
Cyprus Airways
97
Member
State
DE
NO
HR
CH
AT
DE
DE
UK
IT
FI
CH
HR
RO
AT
ES
GR
PL
PL
GR
IT
NL
EE
SK
BG
ES
ES
AT
HR
FR
GR
CH
AT
SE
SE
GR
DE
RO
SE
UK
CY
Costs to
passengers
€ 2018
€ 1,330,909
€ 1,254,644
€ 1,043,350
€
1,006,856
€ 950,738
€ 846,002
€ 846,002
€ 779,202
€ 754,652
€ 695,147
€ 689,619
€ 681,435
€ 676,801
€ 657,294
€ 627,777
€ 529,833
€ 512,898
€ 489,975
€ 405,725
€ 389,138
€ 384,795
€ 370,840
€
368,052
€ 342,396
€ 326,650
€ 326,650
€ 313,888
€ 313,888
€ 307,074
€ 270,325
€ 224,859
€ 216,699
€
127,730
€ 123,180
€ 108,706
€ 50,671
€ 39,828
€ 9,523
€ 2,181
€ 876
Costs per
passenger
€ 2018
€ 488.28
€ 462.38
€ 439.98
€ 458.55
€ 420.32
€ 526.42
€ 526.42
€ 508.20
€ 488.77
€ 508.20
€ 458.55
€ 532.69
€ 526.42
€ 403.15
€ 488.29
€ 540.24
€ 531.91
€ 508.14
€ 487.82
€ 531.97
€ 487.76
€ 435.63
€ 531.97
€ 532.63
€ 508.14
€ 508.14
€ 488.29
€
488.29
€ 554.79
€ 488.66
€ 553.50
€ 508.20
€ 508.20
€ 488.34
€ 526.48
€ 531.97
€ 488.34
€ 508.20
€ 567.55
€0
Non-
recoverable
85.90%
88.70%
81.60%
81.50%
81.60%
84.40%
84.40%
79.50%
91.70%
91.30%
81.50%
92.00%
94.70%
81.70%
91.60%
95.20%
94.00%
94.00%
95.20%
91.60%
85.90%
84.90%
92.90%
95.70%
91.60%
91.60%
92.50%
91.90%
91.60%
95.20%
92.90%
92.40%
85.10%
85.80%
95.20%
84.50%
94.70%
85.10%
78.30%
€ 876
Recoverable
14.10%
11.30%
18.40%
18.50%
18.40%
15.60%
15.60%
20.50%
8.30%
8.70%
18.50%
8.00%
5.30%
18.30%
8.40%
4.80%
6.00%
6.00%
4.80%
8.40%
14.10%
15.10%
7.10%
4.30%
8.40%
8.40%
7.50%
8.10%
8.40%
4.80%
7.10%
7.60%
14.90%
14.20%
4.80%
15.50%
5.30%
14.90%
21.70%
-
97
The Cypriot Government rebooked all affected passengers at no cost. The only cost incurred by
passengers was rebooking and care.
January 2020 | 200
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0227.png
Study on the current level of protection of air passenger rights in the EU | Final Report
On average, over the period 2011-June 2019, we estimate that passengers directly affected by
insolvencies incurred €431 in costs, 83% of which (i.e. €357) were not recoverable under one
of the protection mechanisms.
Protection mechanisms and effectiveness
The level of protection obtained by a passenger depends mainly on where and how their
itinerary was purchased. The most significant difference being between standalone (flight-
only) tickets and those purchased as part of a package/linked travel arrangement. The current
EU framework does not provide any direct insolvency protection requirements for flight-only
ticket holders and these passengers must instead ensure their own protection.
Protection can be based in law (statutory protection), offered by companies involved in
organising or selling the ticket (non-statutory) or sold directly to the customer as a product,
normally in the form of travel insurance (also non-statutory). These protections overlap and
none are universal, such that on one flight several passengers may be covered multiple times,
for example if they had purchased their ticket with a credit card, and were also covered by a
travel insurance policy which included SAFI protection, whilst others may not have any
protection at all. In the case of Hahn Air and BSP, the protection provisions differ slightly from
the policies above and are described in more detail below.
Protection can arise from the following sources:
•
In general terms, purchases of other travel services such as accommodation made at the
same time as the purchase of a flight, will normally result in the creation of a package
holiday or otherwise a linked travel arrangement and be subject to the protections set out
in the Package Travel Directive;
Other protections include those available through the payment system used (such as
credit cards); and finally
Passengers may benefit from travel insurance policies which include supplier failure cover,
although not all such policies do.
•
•
EU and national legislations
The Package Travel Directive
A package is defined as the purchase of a pre-arranged combination of two elements,
including flights, accommodation, car hire and other tourist services. Since 1 July 2018, date of
entry into application of the updated rules (Directive 2302/2015) , a package now also covers
customised combinations of travel services (online and offline) that are put together at the
request of or in accordance with the selection of the traveller. In addition, the Directive
introduces the concept of ‘linked travel arrangements’
98
which is a combination of travel
services facilitated by a trader, such as an airline The Directive provides as well as organiser's
liability for the performance of all travel services that are part of the package. Traders
facilitating a linked travel arrangement, when airlines, must provide for money-back guarantee
and repatriation when they become insolvent. Contrary to an organiser of a package, they are
only liable for their own services.
98
Linked travel arrangements are travel services that are bought from different traders in separate
contracts but are linked. They are classed as linked when one trader facilitates the booking of the
subsequent service(s), and they are purchased within 24 hours for the purpose of the same trip or
holiday.
January 2020 | 201
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0228.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The new Directive also introduces a system of mutual recognition of insolvency protection,
accompanied by a structured cooperation mechanism between the Member States. As an EU
Directive, national transposition and resulting implementation will be done at national level.
The number of traditional package holidays being purchased are in a state of decline as
consumers are increasingly constructing their own itineraries by purchasing travel,
accommodation and other activities separately. This has partly been driven by the expansion
of low-cost capacity in Europe, which has made it far easier for travellers to purchase flights to
desired destinations at desired times, whilst historically these passengers would have been
dependent on charter services. The revision of the PTD in 2015 was aiming at covering these
changes by extending the definition of packages and introducing the concept of linked travel
arrangements.
However, the new PTD does not cover all hypotheses and have some limitations. Travellers are
now more likely to create their own itinerary as they were in the past, allowing them to
incorporate more flexibility into their trip. For example, the traveller would have the ability to
fly one carrier to the destination and a different carrier back if the departure times were more
suitable and/or the prices were lower, which is not the case under a package deal. Under the
new PTD, airlines are contributing to insolvency protection for flights sold with other services.
Therefore, some airlines are now contributing to insolvency protection, which is a change of
trend from the past.
Travel Funds
Travel funds were formed in some Member States to allow them to conform with the Package
Travel Directive. This role has been allocated to private organisations, e.g. SGR
99
in the
Netherlands, state organisations e.g. ATOL in the UK and mixed systems, such as in Denmark,
where the foundation is underwritten by a state guarantee. For each qualifying booking a
small surcharge is applied and paid into the fund. In the event of insolvency, money can be
extracted from the fund to assist with the repatriations of stranded passengers and the
reorganisation of affected bookings.
In Denmark, the responsibilities of the Danish Travel Guarantee Fund (Rejsegarantifonden)
have been extended further to also include passengers on flight-only tickets. Passengers
affected by the insolvency of an airline can lodge a claim with the Travel Guarantee Fund to
obtain a refund on their unusable ticket, minus a DKK1000 (€134, July 2019) administration
charge. Other practical aspects include:
•
For passengers stranded abroad who have bought a package tour with accommodation,
the fund will find them another place to stay, but this may result in a disruption of their
travel arrangements. In this case, the passenger can make a compensation claim for the
disrupted part of their travel arrangements.
For passengers who have bought a package tour where repatriation is included, the Fund
or SOS International A/S will ensure repatriation within "a reasonable period of time".
Passengers may have to stay longer than planned at the destination but the Fund will not
be able to offer compensation to cover for the disruption such as lost wages, etc. If the
passengers do not consent to wait the repatriation arranged by the Fund/SOS
International A/S and instead arrange their own return, they will need to do so at their
own cost.
•
99
Stichting Garantiefonds Reisgelden
January 2020 | 202
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0229.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
For passengers who have bought a return flight ticket cross-border from Denmark, the
Fund or SOS International A/S will ensure repatriation "within a reasonable period of
time". If the passengers do not consent to wait the repatriation arranged by the Fund/SOS
International A/S, they will need to do so at their own cost.
Whilst the Danish Travel Guarantee fund does address the problem further than other
Member States, the DKK1000 administration fee will negate a large proportion of the cost
incurred by the consumer and essentially benefits long-haul customers far greater than short-
haul leisure customers. The fund also highlights that compensation will be paid out only if
there is sufficient money remaining in the fund.
Scheduled Airline Failure Insurance
Scheduled Airline Failure Insurance (SAFI) provides consumers with some protection when
their ticketed carrier becomes insolvent. Normally the coverage provides a fixed quantity of
money per traveller, from which the cost of any new required travel arrangements can be
deducted.
SAFI provides:
•
•
The cost of new flight tickets if the airline goes bankrupt before departure up to the limit
defined in the policy; and
The cost of a replacement flight home if an airline goes bankrupt while the consumer is
away up to the limit defined in the policy.
SAFI can be purchased as stand-alone insurance, but it is also present within some travel
insurance polies. In 2019 SAFI was included in 48% of travel insurance policies in the UK
100
.
According to IPP’s questionnaire response, SAFI insurance is now available in all Member
States. This was not the case in 2011 where SAFI was primarily concentrated on the UK and
Ireland with some prevalence in Germany, the Netherlands, Sweden and Czech Republic.
Despite this most NEBs were not aware on SAFI products being available in their countries.
Whilst SAFI insurance covers the additional costs involved with having to buy a new ticket, the
cover does not cover other associated costs incurred as a result of disruption, such as the
possible need to purchase additional accommodation if an extra night’s stay is required. SAFI
insurance may also have clauses excluding certain airlines from the cover if they have been
determined to be at risk of bankruptcy.
Many consumers with travel insurance are likely unaware of whether it includes SAFI
protection or not and likely assume the former. In Germany, the proportion of people reading
terms and conditions is only half
101
, whilst in the UK, only 12%
102
travellers read their
insurance documents and truly know what their level of cover is.
Additionally, many European passengers do not buy travel insurance, especially for intra-EU
trips as the health insurance aspect (often viewed as the most important aspect) is covered by
the citizens’ European Health Insurance Card. Levels of cover vary widely across Europe;
in
100
https://www.thisismoney.co.uk/money/holidays/article-6746403/Half-travel-insurance-policies-
dont-cover-airline-difficulties-best-cover.html
101
https://www.focus.de/finanzen/recht/studie-zu-allgemeinen-geschaeftsbedingungen-die-
meisten-deutschen-ignorieren-die-agbs-im-internet-voellig_id_4271443.html
102
Travel Insurance Facts, Foreign and Commonwealth Office, 2012
January 2020 | 203
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0230.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Italy between 75% and 85%
103 104
of citizens do not purchase insurance before travelling, with
slightly lower proportions in Poland
105
(58%) and the UK (approximately 24%).
Credit card protection and chargeback
When flights are purchased with a credit card, the responsibility for the delivery of services
(i.e. the flight) may be shared with the credit card company or the issuing bank, sometimes
subject to a minimum value.
Average credit card ownership across European countries (EU 28, Norway, Switzerland) was
39%
106
in 2017, 3% higher than in 2014. The country with the highest credit card ownership
was Norway with 71% in 2017, which was significantly higher than ownership of 12% in
Romania.
In the UK, purchases made via credit card costing between £100 and £30,000 (€112 to
€33,435, July 2019) are covered under section 75 of the Consumer Credit Act 1974, which
states that the credit card company is jointly and severally liable for any breach of contract or
misrepresentation by the retailer. This means that the credit card company is just as
responsible as the airline is for providing the consumer with their purchase. In the case of an
airline insolvency a passenger can make a claim to their credit card supplier for the value of
the ticket, provided it was purchased with the card and cost more than £100
107
(€112, July
2019).
The following countries mentioned protections set out by law in their stakeholder responses:
•
•
•
•
•
Finland (general provision in the Finnish Consumer Protection Act regarding the liability of
credit card companies)
Iceland (no detail provided)
Norway (The Norwegian Financial Contracts Act § 54b regulates chargeback)
Sweden (The Swedish Consumer Credit Act regulates chargeback)
United Kingdom (Section 75 of the Consumer Credit Act 1974)
Flights purchased with a debit card are generally not covered, however customers are able to
claim a refund on the ticket if they can prove it was purchased with an overdraft facility
108
.
Chargeback is another method by which consumers can attempt to recoup the costs of their
unusable flight. Chargeback is written into the Visa and Mastercard terms and conditions and
allows banks to withdraw funds that were previously deposited into an airline’s
bank account
in the event that the good or service purchased is not received or provided. Affected
customers must contact their bank to request the chargeback and also prove that the airline
has ceased traded. The bank can then attempt to action the chargeback. Chargeback is not
written into consumer protection law, but instead is an industry scheme that many banks
choose to participate in. The scheme however is not widely known about and there is also no
103
104
https://www.intermundial.it/blog/assicurazioni-viaggio/
https://www.salmeri.it/allianz-global-assistance-quasi-il-70-degli-italiani-conosce-le-polizze-
viaggio-ma-meno-del-15-si-assicura/
105
https://tueuropa.pl/artykuly/1217,112/d,aktualnosci,moze-nad-morze-a-gdzie-polisa-turystyczna
106
The Global Findex Database, World Bank, 2017
107
https://www.which.co.uk/consumer-rights/regulation/section-75-of-the-consumer-credit-act
108
https://www.gocompare.com/travel-insurance/scheduled-airline-failure-insurance/
January 2020 | 204
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0231.png
Study on the current level of protection of air passenger rights in the EU | Final Report
guarantee that the claim will be successful
109
. Unlike credit card refunds in the UK, chargeback
has no minimum transaction value.
Table 8.8 shows the availability of chargeback in the EU28 and Norway. It should be noted that
whilst chargeback is available in these states, this does not guarantee that all citizens are able
to use the facility.
Table 8.8: Availability of chargeback in the EU and Norway
Voluntary chargeback available
Bulgaria, Cyprus, Czech Republic, Estonia,
France, Hungary, Ireland, Italy, Lithuania, Malta,
Netherlands, Portugal, Romania, Slovakia,
Spain, Sweden, United Kingdom, Norway
Source: European Consumer Centre Sweden
Voluntary chargeback not available
Austria, Belgium, Denmark, Finland, Germany
Both credit card and chargeback limit protection to the costs of the flight purchased only and
will not factor in the fact that the cost of a new ticket may be substantially more expensive
owing to the reduced booking horizon, nor will it cover any other incurred costs such as
accommodation.
Credit card protections only work in cases when the ticket is purchased directly from the
airline, and not from an intermediary as the protection is only valid when the supplier has
failed to provide agreed services. In the case that a ticket was purchased from a travel agency
and the airline goes insolvent, the travel agency has still carried out all its contractual
obligations and thus a claim cannot be raised.
Levels of credit card ownership in each Member State will also influence the ability to take
advantage of this form of protection. Historically consumers may have been reluctant to
purchase flights with a credit card as this payment form often attracted higher charges
compared with paying with a debit card.
Hahn Air
In addition to operating a small airline, Hahn Air also provides a ticketing solution to travel
agencies that allows them to sell insolvency protected HR-169 tickets. Hahn Air HR-169 tickets
were introduced in 2010 and over 30 million have been sold to date via a network of over
100,000 travel agencies
110
.
In the case that a passenger with an HR-169 ticket is affected by the insolvency of one of Hahn
Air's 279 partner airlines (including 56 EU+3 carriers), the passenger will receive a full refund
of the unused part of the ticket including taxes. Additionally, passengers also benefit from
additional cover whereby stranded passengers can receive up to an additional €125 to
cover
any difference in cost between the original and the new ticket. The insurance also covers the
costs of meals and hotel accommodation up to €75 and other extra expenses like transfers and
phone calls up to €50.
109
https://www.which.co.uk/consumer-rights/advice/how-do-i-use-chargeback#how-does-
chargeback-work
110
https://www.hahnair.com/en/insolvency-insurance-securtix
January 2020 | 205
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0232.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Whilst the level of cover provided addressed incurred costs better than most other protection
measures, Hahn Air’s exposure to the market is limited and only 30 million Hahn Air tickets
have been sold since 2010, representing a market share of just 0.1%
111
.
IATA Billing and Settlement Plan (BSP)
The IATA Billing and Settlement Plan (BSP) provides a mechanism by which passengers can
potentially claim the cost of their flight back if IATA has not yet transferred the funds to the
insolvent airline in question. If a ticket is booked via an IATA accredited agency, which utilises
BSP, the ticket revenue is held by IATA for a period before being transferred to the airline
112
.
Payments are normally made to the airline either weekly, fortnightly or monthly in lump sum.
If an airline becomes insolvent prior to the transfer of funds, the affected passenger should be
able to claim the ticket cost back via their travel agent.
The success of this method is highly dependent on the date and frequency of when the BSPs
are settled. As most accounts are settled on a monthly basis on the 15th of the month, tickets
bought on the 16th of the month generally have the largest protection window, however this
is variable.
Goodwill of national authority
Stranded Monarch customers (110,000) were transported home through a scheme set-up by
the UK CAA in 2017 regardless of whether they were travelling as part of a package, or on a
flight-only ticket.
The decision was taken because “there were too few spare seats on other
airlines flying the same
routes as Monarch. If left to fend for themselves, many of Monarch’s
passengers would have had to wait days
–
or even weeks
–
to return to the UK, and face the
unwelcome prospect of not being able to book somewhere to stay
113
”.
Whilst this was a
requirement to fly home passengers on an ATOL package (If an ATOL holder fails, the CAA
draws on Air Travel Trust funds to cover repatriation and refund costs), it was a goodwill
gesture for passengers on a flight-only ticket.
The repatriation scheme was funded through the Air Travel Trust fund which had been paid
for, in part, by Monarch’s passengers travelling on a package over the years. The scheme that
the UK CAA put in place covered the repatriation of passengers from abroad to the UK, but did
not appear to include non-UK based passengers left stranded in the UK. A NEB with passengers
stranded in the UK explained having contacted other airlines who offered rescue fares for
these passengers.
As with all goodwill arrangements, it is not possible to know how decisions are taken and
whether they would happen again in different set of circumstances or in different Member
States.
Rescue fares
Rescue fares can be offered by competing airlines to stranded customers, allowing them to
make their journey home at a reduced priced. Rescue fares are normally available for two
weeks after insolvency and are not normally available online and instead must be booked via a
call centre. Based on the information made available to WOW air passengers after its
111
Assumes total air passengers in the period 2010-2018 was 30.0 billion
–
World Bank
112
https://www.iata.org/services/finance/bsp/Pages/index.aspx
113
Airline Insolvency Review, UK Government, 2018
January 2020 | 206
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0233.png
Study on the current level of protection of air passenger rights in the EU | Final Report
insolvency, it can be inferred that reservations can only be made via an airline’s call centre and
that reduced fares are not available in Global Distribution Systems. Passengers must show
proof of their original ticket at check-in in order to validate that has not been bought
fraudulently. There is no formal approach for informing passengers about rescue fares and
which airlines offer them. Individual airlines will advertise these fares on their websites if they
have made them available and relevant authorities may provide a webpage summarising
options available to stranded passengers.
IATA
114
and A4E stated that some of their member airlines provided assistance to passengers
under a voluntary agreement by providing access to discounted transport home. These tickets
are subject to available capacity but are mostly offered at a fixed price by the airline. Rescue
fares are normally available to passengers, but not travel agents, for two weeks after
insolvency and are not normally usually available online and instead must be booked via a call
centre. Passengers must show proof of their original ticket at check-in in order to validate that
the rescue fare has not been bought fraudulently.
After the collapse of WOW air, Aer Lingus offered fares through its Dublin hub. Paris to
Washington DC was available for
€219,
whilst London to Washington was available for £160
115
.
Interestingly after the collapse of Primera Air, Virgin Atlantic offered rescue fares to
passengers stranded on either side of the Atlantic, whilst British Airways only offered fares to
passengers wishing to return to London
116
. This may be a function of available capacity on
each airline. Non-IATA airlines also offer rescue fares to passengers, however these can take
various forms. After the collapses of Primera Air and WOW air, Norwegian offered discounts to
the base fare of its tickets to stranded passengers. Primera passengers were entitled to a 50%
reduction, whilst a year later WOWair passengers were offered a 25% reduction. After the
collapse of Primera Air, Ryanair offered discounts to customers with forward bookings. For a
two-day period customers with bookings for between October 2018 and March 2019 were
able to purchase tickets online at reduced fares.
After the collapse of XL Airways, Air Caraibes and French Bee announced rescue fares to offer
an alternative solution for the return journeys of passengers between Paris and the Dominican
Republic. These rescue fares were only available (subject to availability) to passengers wishing
to return to their departure destination, upon presentation of proof of purchase of an XL
Airways flight ticket and whose flight had been cancelled. To benefit from these offers
passengers were invited to visit the points of sale of the companies or by telephone, noting
that these special rates were not available for sale on the companies' websites or in travel
agencies.
After the collapse of Thomas Cook. easyJet, British Airways and Virgin Atlantic released advice
to Thomas Cook customers about arranging alternative travel. As the majority of UK-based
stranded short-haul customers were already being accommodated by the CAA repatriation
plan, easyJet (as a short haul operator) requested that all customers returning to the UK
followed this plan, whilst British Airways also directed affected passengers to the
114
https://www.iata.org/pressroom/pr/Documents/Voluntary-Repatriation-Assistance-to-
Passengers-Report-PR-2014-11-25-01.pdf
115
https://www.forbes.com/sites/michaelgoldstein/2019/03/29/wow-collapse-airlines-offer-rescue-
fares-to-thousands-stranded/
116
https://www.independent.co.uk/travel/news-and-advice/primera-air-collapse-suspended-
passengers-stranded-travel-plans-repatriation-fares-a8564851.html
January 2020 | 207
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0234.png
Study on the current level of protection of air passenger rights in the EU | Final Report
‘thomascook.caa.co.uk’ website where they could view alternative flight arrangements that
had been made for them.
In the event that no alternative flight arrangements for UK based stranded customers had
been made, which was the case for some long-haul routes, passengers could call British
Airways or Virgin Atlantic to arrange transport back from the US and the Caribbean. In these
circumstances there was no mention of rescue fares from either airline, which implies that
cost was forwarded to the CAA. Passengers were required to have their Thomas Cook booking
details to hand at the time of calling.
easyJet and British Airways mentioned the availability of rescue fares to non-UK based
stranded customers. easyJet offered a flat rate rescue fare of €140 to all stranded customers
on the presentation of a Thomas Cook booking reference, whilst British Airways requested
passengers to contact their call centre to discuss options.
Following the collapse of Monarch, ANAC, the Portuguese CAA, was in close contact with the
UK CAA and also tried to negotiate rescue fares with several airlines, although easyJet was the
only airline to agree to these with ANAC. Only about 40 passengers were rebooked on easyJet
rescue fares with ANAC’s support. The remaining passengers made their own alternative
arrangements for returning to Portugal if the availability of rescue fare seats did not suit their
plans.
Claim to the estate after liquidation
After the collapse of Primera Air, the European Consumer Centres recommended that affected
passengers try to claim their ticket costs as part of the liquidation process. This method relies
on the airline having assets that can be liquidated, and there being sufficient money available
after higher priority creditors, such as aircraft leasing firms and airports, have settled their
claims.
Potential improvements
Direct measures to increase recoverable costs
Table 8.9 presents a summary of the effect of improving some of the available consumer
protection mechanisms. The rate of non-recoverable costs experienced by non-covered
passengers could be reduced by simply improving consumer guidelines, but also through
measures such as the greater formalisation of credit card consumer protection across Europe.
Improvements to the scope and availability of SAFI and Hahn Air insurance would widely
benefit non-stranded customers, who still want to travel.
Table 8.9: Possible improvements to consumer facing measures
Non-covered passengers
Recoverable
cost of
Improved
consumer
guidelines
Increase in %
of recoverable
cost
Travel
Guarantee
Fund
Increase in
% of
recoverable
cost
Formalised
credit card
consumer
protection
Increase in %
of recoverable
cost
Insured customers
Improved
SAFI
coverage
Greater Hahn
Air exposure
Increase in %
of
recoverable
cost
Original flight
Already
covered
January 2020 | 208
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0235.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Non-covered passengers
Recoverable
cost of
Improved
consumer
guidelines
Increase in %
of recoverable
cost
117
Travel
Guarantee
Fund
Formalised
credit card
consumer
protection
Insured customers
Improved
SAFI
coverage
Increase in
% of
recoverable
cost
No change
Greater Hahn
Air exposure
Increase in %
of
recoverable
cost
No change
Replacement
flight
Non-refundable
accommodation
and services
Additional
accommodation
needed to wait
for new flight
Communication
No change
No change
No change
No change
No change
No change
No change
No change
No change
No change
No change
No change
May
require
additional
legislation.
Additional
pass
through
cost to
consumers
No change
No change
No change
Consequence
None beyond
marginal cost
of information
provision
Requires
additional
legislation
Cost to
consumer
Cost to
consumer
Source: Steer analysis
Non-covered passengers
The following measures would allow for a greater proportion of ‘non-covered passengers’ to
claim the cost of their original ticket at little or no addition cost. These measures would slightly
increase the overall rate of non-recoverable costs.
Improved consumer guidelines
In many cases the number of non-covered passengers could be reduced simply though
improved consumer guidelines by better publicising the most effective way to purchase
tickets, or what to check for in their insurance policy. This would be most effective for flight-
only travellers as other travellers tend to get better protection: there is a requirement of the
PTD that when travellers book a package, they are informed that they booked a package and
receive the name/contact details of the insolvency protection provider. In the case of linked
travel arrangements, travellers receive the information that they are about to book a linked
travel arrangement, and therefore have insolvency protection from the facilitators, noting that
if the information is not provided by the linked travel arrangement facilitator, the facilitator
has obligations as an organiser of a package.
117
For stranded passengers who are encouraged to purchase a SAFI inclusive insurance policy.
January 2020 | 209
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0236.png
Study on the current level of protection of air passenger rights in the EU | Final Report
In Member States where credit cards provide consumer protection by law, customers could be
notified when booking that they will receive a refund in the case of airline insolvency should
they choose to book via credit card.
Consumers could also be made more aware of the benefits of a comprehensive travel
insurance policy and to check for the inclusion of SAFI (if applicable) or more simply the
benefits of having a standalone SAFI insurance policy and where to purchase it. SAFI is
theoretically available in all EU Member States, so this should provide no barriers to its market
prevalence.
However, the UK Insolvency Review
118
noted that “consumer research shows that few
travellers think about these risks when they book a flight or understand how they could
protect themselves” and assessed that
this approach would not be sufficient.
Greater formalisation of consumer protection
A more EU-wide view to credit card consumer legislation and protection and/or greater
formalisation of chargeback procedures would increase the applicability of these processes
across the EU market.
Improvements to rescue fares
One of the soft measures proposed in COM communication from 2013 was to formulise the
existing voluntary agreements on the provision of rescue fares and their effective promotion
as well as to develop
voluntary arrangements to complement “recue fares” for example with
offering reduced airport charges.
As presented in paragraph 8.73, IATA has agreed in 2014 to a voluntary repatriation assistance
scheme, where passengers will be returned, subject to available capacity, to their point of
origin, or to the nearest airport served by an IATA member airline, at a discounted rate (also
known as a “rescue fare”). The agreement further explains that to ensure maximum
awareness, the State responsible for the licencing of the insolvent airline should communicate
to stranded passengers the possibility of this rescue service, e.g. via national Government
websites. This rescue service should only be available for passengers who do not have
insurance covering such repatriation.
During this study, no authority in charge of insolvency consulted has called for improvements
to rescue fares, and whilst some airlines have stated that they offer them, they have not called
for a formal agreement with the EU on this either.
Note that we have not consulted with airports in this study on the possibility mentioned by
the 2013 Commission COM
to offer “reduced airport charges” to complement rescue fares.
However, we note that as per Directive 2009/12, airport charges have to be cost-reflective of
the services that airports provide to airlines and ultimately to passengers and that it would
therefore appear highly improbable for airports, even if they were willing, to provide discounts
on charges on rescue fare grounds.
118
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/80
0219/airline-insolvency-review-report.pdf
January 2020 | 210
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0237.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Extension of the Travel Guarantee Fund
Implementing a model similar to the Danish Travel Guarantee Fund across Member States
could provide and alternative means by which all consumers are able to claim their original
ticket cost. A small surcharge could be collected on all fares ticketed in each Member State to
provide proceeds for their respective funds. In the event of an airline insolvency passengers
can make a claim to the fund for their original ticket price, minus an administration fee.
The administration fee ought to be set in such a way that it is not prohibitive, so consumers
can claim a proportion of their original ticket price, back but also avoids the fund being
abused. An assessment of whether the administration fee should be applied per booking,
rather than per passenger, should also be made, so that group/family bookings will receive a
notable rebate, even on short-haul leisure bookings.
Airlines stated that there would be resistance from the industry to apply such measures more
widely as they would increase ticket prices and more financially stable carriers would
essentially be required to provide a subsidy to passengers of other less financially stable
airlines.
Flight Protection Scheme
The UK Insolvency Review concluded that a formal repatriation protection scheme should be
put in place in the UK, which would finance the cost of protection, based on requiring all
airlines serving the UK market to pay for financial protections. The scheme, called Flight
Protection Scheme would protect any air passenger whose journey began in the UK, and who
has a ticket to return on an airline that becomes insolvent while they are already overseas. The
protection would apply irrespective of how, or from whom, the ticket was purchased or paid
for.
A major part of this cost should be met through requiring airlines to put up security through a
financial instrument that can be relied on to pay out should they become insolvent. This
should be supplemented by a small centrally-held
fund to cover the remainder of each airline’s
exposure, establish reserves against future claims, and meet the Scheme’s
current
expenditure. This could be funded, according to the Review, by a small contribution from each
airline. On average, the overall cost of this protection would be was estimated by the Review
to be less than 50p per UK originating passenger.
It is interesting to note that the design of the UK scheme appears to fulfil most of the
objectives of the European Parliament resolution
119
calling for the creation of guarantee funds
guaranteeing assistance, reimbursement, compensation and re-routing in the event of
insolvency or bankruptcy.
The concept developed by the UK Review could be considered for use across Europe, but only
after serious considerations of the national situations all across Europe as these will wary
significantly and may not be conducive to the same solutions.
Insured passengers
Additional costs incurred by stranded passengers for replacement flights are covered under
SAFI and Hahn Air protections, however customers who have yet to begin their journey are
often left with significant non-recoverable costs as, despite being able to claim back the
119
2019/2854(RSP)
January 2020 | 211
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0238.png
Study on the current level of protection of air passenger rights in the EU | Final Report
original cost of their ticket, they are required to purchase a new ticket closer to the date of
travel which in most cases will invoke a higher fare.
Hahn Air
Hahn Air goes some way to address this by offering an additional €125 to passengers
wishing
to rebook to assist with covering the additional fare. In certain cases, this may be sufficient,
however in others, especially long-haul itineraries, this amount will not cover a significant
proportion of the new ticket price. Another issue with Hahn Air is its availability. Only 0.1% of
tickets sold have Hahn Air protection, and travel agencies are the primary purchasing channel.
Greater awareness of and easier ability for general customers to book Hahn Air tickets could
substantially increase the proportion of tickets purchased with this cover. We attribute the
low prevalence of Hahn Air issued tickets to:
•
The competitive nature of the ticketing market; most travel agents will be reluctant to
publish fares with surcharges applied as their fares will appear more expensive than
competitors’;
Airlines not wanting to advertise bankruptcy insurance on their websites as an add-on
purchase; and
The fact that Hahn Air tickets cannot readily be purchased online.
•
•
SAFI
The scope of SAFI could be increased to also include required additional funds to passengers
wishing to rebook. Depending on the policy this could be up to a fixed amount, as per Hahn
Air, or the total rebooking cost. This cost would be reflected in the price of the policy to
consumers.
Indirect measures to increase recoverable costs
Airline bankruptcies rarely happen instantaneously and are often a culmination of events,
which place financial stress on an airline over a period of time. With greater visibility of these
issues, the relevant authorities will be more aware of impending bankruptcies and will be able
to respond appropriately by ensuring that as few passengers are affected as logistically
possible and that effective repatriation measures are in place for stranded passengers. The
following measures could be pursued to assist with this. Many of these measures were also
identified in the UK DfT Airline Insolvency Review, published in May 2019.
Overview of financial robustness
Airlines could be required to submit more information regarding the state of their financial
robustness over the next year, although Article 8 of Regulation 1008/2008
120
already provides
Member States with this possibility as it states that “the competent licensing authority may at
any time assess the financial performance of a Community air carrier to which it has granted
an operating licence by requesting the relevant information”
This would indicate to
authorities, whether an airline needs further investigation regarding accommodating the
needs of potentially affected consumers.
120
Note that Regulation 1008/2008 is currently under potential revision
January 2020 | 212
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0239.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Supply of advanced booking data
It became evident whilst researching for this study that statistics regarding the status of
advanced bookings on insolvent carriers was generally not available; instead an estimate was
calculated for this study in line with other market findings.
Carriers at risk of insolvency could be required to provide forward booking data to their
relevant aviation authority to allow greater visibility of the scale of affected passengers in the
case of bankruptcy. This would also provide a means by which affected passengers could be
contacted regarding alternative travel arrangements and also so any repatriation effort (if
required) can be seized accordingly.
Ability to mitigate future passenger risk
Measures could be enacted to reduce the risk of an impending bankruptcy unnecessarily
affecting passengers. Introducing measures to prevent or dissuade passengers from making
further bookings in the hours before the airline officially declares bankruptcy, or ensuring that
all/part of the money collected by the airline is stored in a trust account, similarly to what is
done in Denmark, which can be refunded or used for repatriation if required are possible
actions that could be implemented. Primera Air was widely criticised for accepting bookings
right up until the public announcement of the bankruptcy, despite knowing internally that the
bankruptcy was inevitable, whilst Monarch increased fares substantially in the 24 hours prior
to its bankruptcy to price itself out of the market.
Organisation of appropriate repatriation measures
Passengers generally purchase their own tickets to return home in the case of airline failure
(self-repatriation), often using rescue fares offered by other airlines and claiming some of the
cost back at a later date (if possible). Repatriation measures could be more coordinated to
better assist customers through offering a more formalised repatriation procedure, where the
relevant authority takes responsibility for finding tickets for affected passengers and also
negotiating a price where necessary. This could be enacted through different means
depending on what would be most cost-effective under the circumstances, including:
•
•
•
Organising tickets home for passengers on other carriers where capacity allows;
Chartering aircraft where additional capacity is needed (as seen after the bankruptcy of
Monarch); or
Introducing measures to allow airlines to keep their fleets flying for a limited amount of
time to reduce the number of stranded passengers.
Associated costs would have to be covered by a fund, most likely levied on ticket sales.
Orderly wind-down of operations
Once an EU carrier can no longer meet its actual or potential obligations for a 12-month
period, the national licensing authority shall suspend or revoke the license (Regulation (EC) No
1008/2008
121
). As a sudden revocation can lead to disrupting effects on the market for
passengers, workers and the carrier may sometimes be able to restructure its operations,
licensing authorities may grant a temporary license for a duration not exceeding 12 months to
121
Ex-post evaluation of Regulation 1008/2008:
https://ec.europa.eu/transport/sites/transport/files/legislation/swd020190295.pdf
January 2020 | 213
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0240.png
Study on the current level of protection of air passenger rights in the EU | Final Report
the carrier, provided safety is not at risk and there is a realistic prospect of financial
reconstruction within that time period.
Some Member States may use this time to discuss arrangements for restructuring or reducing
the disruption on passengers with the air carrier. However, the Evaluation of the Air Services
Regulation has found that the issuing of temporary licenses does not ensure that such a
dialogue takes place and, in some cases, may send a negative signal to the market further
exacerbating the financial position of the air carrier. The bankruptcy of Air Berlin, for example,
was handled in this way at a cost of €150m, which was provided as a bridging loan by the
German government (DG COMP State Aid SA.48937). There was an expectation of the German
government that this loan would be re-paid, however owing to the structure of the eventual
sale of Air Berlin, it is unlikely that this will be realised
122
.
Duty of care
Issues would arise regarding which State authority would be responsible for the care of
affected passengers owing to the more cross-state nature of the airline industry in Europe
versus the package holiday industry. For example, the three largest low-cost carriers in Europe
–
Ryanair, easyJet and Wizzair
–
are headquartered in Ireland, the United Kingdom and
Hungary respectively
123
, but all operate many routes both domestically and internationally in
and between other Member States. If a bankruptcy were to occur in these situations a clear
line of responsibility would need to be established as to whether the relevant authority in the
country of departure or the country where the airline is domiciled would be responsible.
Summary of findings
Between 2011 and October 2019, we estimate that 5.6 million passengers were impacted by
airline insolvencies in some way. This is equivalent to 0.04% of total EU passengers during this
period. In 2017, which included the relatively large bankruptcy of Monarch, this equated to
0.09% of total EU passengers being affected (i.e. unable to travel) or stranded due to airline
failure. In 2019 this has grown to 0.14% due to the bankruptcies of Thomas Cook, Germania,
Aigle Azur and WOW air.
On average, over the period 2011-June 2019, we estimate that passengers directly affected by
insolvencies incurred €431 in costs, 83% of which (i.e. €357) were not recoverable under one
of the protection mechanisms.
The level of protection obtained by a passenger depends mainly on where and how their
itinerary was purchased. The most significant difference being between standalone (flight-
only) tickets and those purchased as part of a package or linked travel arrangement. The
current EU framework does not provide any direct insolvency protection requirements for
flight-only ticket holders and these passengers must instead ensure their own protection.
Insolvency protections for flight-only (i.e. single travel service) ticket holders have not
materially changed since 2011. However, some passengers who previously would have been
considered flight-only ticket holders may, under the new Package Travel Directive since July
2018, be covered by the provisions for linked travel arrangements/packages. This implies that
122
The loan would have likely been covered had Lufthansa purchased Air Berlin subsidiaries LGW and
NIKI (estimated €230m),
but owing to competition concerns they did not continue with the purchase of
NIKI and purchased LGW for an estimated €30m.
123
We note that this situation is currently in a state of change as all three airlines have recently opened
subsidiaries, based in other countries, to better deal with market developments.
January 2020 | 214
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0241.png
Study on the current level of protection of air passenger rights in the EU | Final Report
some airlines are already contributing to the different insolvency protection put in place in the
EU/EEA Member States. This is a change of trend since 2011, with all types of airlines (charter,
low-cost, scheduled short-haul only, scheduled mixed short and long, long-haul) being
concerned.
Across Europe, there only exists partial solutions for the protection of passengers in the case
of airline insolvency. These protections overlap and none are universal, such that on one flight
several passengers may be covered multiple times, for example if they had purchased their
ticket with a credit card and were also covered by a travel insurance policy, whilst others may
not have any protection at all, especially if they booked flight-only tickets directly from the
carrier.
•
In general terms, purchases of other travel services such as accommodation made at the
same time as the purchase of a flight, will normally result in the creation of a package or
linked travel arrangement and be subject to the protections set out in the Package Travel
Directive;
Scheduled Airline Failure Insurance (SAFI) has allowed passengers to insure themselves
against some of the costs resulting from the insolvency of an airline on which they are
booked. SAFI covers the costs of repatriation if the passenger is stranded, or
reimbursement for the cost of the original flight tickets in the case that the passenger
cannot recover it. However, SAFI is only available in a small number of Member States and
excludes any carriers publicly known to be in financial difficulty. It is also not very well-
known by passengers;
Some Member States have put in place Travel Funds. In the event of insolvency, money
can be extracted from the fund to assist with the repatriations of stranded passengers and
the reorganisation of affected bookings. However, compensation will be paid out only if
there is sufficient money remaining in the fund which may be an issue for large-scale
events;
Payments for tickets purchased via IATA travel agents are held by a central payment
mechanism before being passed on to the airline, in settlements at regular intervals
(usually monthly). If the airline becomes insolvent, passengers whose payments have not
yet been passed on to the airline should be able to recover what they paid. Across Europe,
this type of protection does not appear particularly useful;
Other protections include those available through the payment system used (such as
credit cards) but these are only available in a limited number of Member States to credit
card holders only;
Passengers may benefit from travel insurance policies which include supplier failure cover,
although not all such policies do;
Rescue fares may be offered by competing airlines (at their discretion) to stranded
customers, allowing them to make their journey home at a reduced priced, but there is
little public awareness of these.
•
•
•
•
•
With four bankruptcies over a very short period of time, the European Parliament is keen to
remedy this patchy level of protection and asked for the creation of guarantee funds and
insurance contracts for that purpose (Resolution RC-B9-0118/2019), echoing their
amendments of the 2013 Proposal adopted in 2014
124
. This should be further considered by
124
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2014-
0020&language=EN
January 2020 | 215
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0242.png
Study on the current level of protection of air passenger rights in the EU | Final Report
the Commission, in particular taking into consideration the recommendations made by the UK
Insolvency Review in 2019 to establish a UK-wide protection fund. However, insolvency laws
differ widely across Europe, explaining why the current situation is so heterogeneous. This
further means that a solution that works in the UK may not necessarily be well-adapted to
another Member State, so any further recommendations on possible improvements at EU
level ought to be carefully researched. Also note that the recommendation of the UK
Insolvency Review has not been through the national legislative debate which may set a
different outcome for the recommendation made.
January 2020 | 216
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0243.png
Study on the current level of protection of air passenger rights in the EU | Final Report
9 Conclusions
Introduction
The first legislation on air passengers rights dates back to the early days of the internal market
in the 1990s, focusing on denied boarding
125
, the objective being to limit potential negative
impacts of the liberalisation of the air transport market on the service quality to passengers. It
was then complemented by rules on air carrier liability (Regulation 889/2002), cancellation,
long delay of flights and denied boarding (Regulation 261/2004), passengers with reduced
mobility (Regulation 1107/2006), and price transparency and insolvencies (Regulation
1008/2008). Regulation 261/2004 has been at the core of this framework. The implementation
of passenger rights has also been supported by consumer protection legislation.
In March 2013 the Commission proposed
126
a revision of Regulation 261/2004. Following a
dispute between the United Kingdom and Spain over Gibraltar's airport, the proposal has
been "on hold" since November 2015. Meanwhile, the Commission adopted Interpretative
Guidelines
127
in 2016, which aim to explain more clearly a number of provisions contained
in Regulation (EC) No 261/2004, in particular in the light of the Court of Justice of the
European Union's (CJEU) case law, in a bid to make current rules more effectively and
consistently enforced.
Given the time that has elapsed since the drafting of the Commission proposal in 2013, the
overall context has evolved. For this reason, the Commission procured this study, of which the
overall objective
it described as “to
assess the current level of protection of air passengers
rights as well as the state of play of the air passengers rights environment as they stand in
2018”.
Summary of evolution of air passenger rights
Level of disruption
Development since 2011
The analysis indicates that the number of flights disrupted, in terms of cancellations and
delays over two hours, has increased significantly between 2011 and 2018, although the
proportion of all flights disrupted remains relatively low; cancellations grew from 1.0% to 1.7%
of flights between 2011 and 2018, and delays grew from 0.9% to 1.4% of flights. The increased
125
Regulation (EEC) No 295/91 establishing common rules for a denied-boarding compensation systems
in scheduled air transport.
126
Proposal amending Regulation (EC) No 261/2004 and Regulation (EC) No 2027/97 (COM(2013) 130
final of 13.3.2013)
127
Interpretative Guidelines on Regulation (EC) No 261/2004 and on Regulation (EC) No 2027/97 as
amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council, OJ C 214,
15.6.2016, p. 5–21
January 2020 | 217
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0244.png
Study on the current level of protection of air passenger rights in the EU | Final Report
level of disruption corresponds with increasing levels of ATM delay generated in the single
European sky, which also causes further knock-on effects throughout the system. The causes
of delay across airlines and across the system vary, however we do observe a small overall
reduction in airline-attributable delay, which could also be a reflection of the increased ATM
disruption in the system that would usually be classed as an extraordinary circumstance.
The number of passengers affected by flight disruptions follows the same trend as flight
disruptions, but due to increasing load factors between 2011 (85%) and 2018 (89%), the
number of passengers affected has increased at a greater rate over the period. The proportion
of passengers affected remains relatively small, with passengers affected by cancellations
growing from 0.9% to 1.6% and the proportion affected by delays growing from 1.0% to 1.5%.
Compared to delays and cancellations, the proportion of passengers affected by denied
boarding and downgrading was very low. We estimate that 0.14% of passengers were denied
boarding in 2018 and just 0.01% of passengers were downgraded.
Rising claim rates
Passenger claim rates for compensation have increased significantly between 2011 and 2018,
reflecting increasing awareness. In 2018, we estimate that 38% of eligible passengers claimed
compensation, up from 8% in 2011. There is a large disparity between claim rates for
cancellations and delays; in 2018, close to 60% of eligible passengers affected by delays
claimed compensation, as opposed to under 20% affected by cancellations. The overall claim
rate (38%) is broadly consistent with the level of awareness amongst passengers of their
rights. Note that the claim rate measure used here does not differentiate between whether an
airline provided compensation after a passenger submitted an eligible claim, or after the
intervention of a NEB, ECC, ADR/ODR/court or claim agency.
Air passengers’ perspective
regarding their rights
Overall passengers’
expectations
and rights
Surveys indicate that passengers’ priorities are unchanged since 2011 (and since Regulation
261/2004 was implemented), which are that:
1.
2.
3.
Care and assistance are provided by airlines in the event of disruption;
Re-routing is offered so that they arrive at their destination as soon as possible; and
Reimbursement and/or compensation is due if issues within the control of the airline go
wrong (i.e. in cases of denied boarding, downgrading, cancellation or long delay within the
control of the airline).
It is helpful to consider passengers’ expectations and rights,
through the different phases of
travel: before; during; and after. Regulation 261/2004 predominantly provides protections to
passengers during and after travel, while protections before travel are mostly provided by
other legislation (e.g. Regulation 1008/2008). However, gaps exist between passenger
expectations and the protections available through the three phases. For example:
•
Before travel: Regulation 1008/2008 sets requirements for price transparency that the
final price including all foreseeable and unavoidable elements ought to be shown
throughout the booking process. What are considered “foreseeable and unavoidable”
elements can vary between passengers and airlines though. Passengers would expect that
a hand-luggage allowance should always be included as part of the ticket and that travel
companions would automatically be seated together. Airline practices and the degree to
January 2020 | 218
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0245.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
which they unbundle their services do not always align with these passenger expectations,
and additionally they vary between airlines, generating complexity for passengers.
During travel: Regulation 261/2004 defines a number of obligations for airlines with
respect to passengers experiencing disruption, however it does not require that airlines
should provide information to passengers about their delayed or cancelled flights
–
something that passengers would expect.
After travel: Regulation 261/2004 (and associated jurisprudence) provides that passengers
should be compensated if their flight has been delayed by more than three hours and
passengers would expect to be able to claim such compensation in an easy and timely
way. However there exists no requirement for airlines to provide clear and efficient ways
for passengers to claim compensation within a specified timeframe.
Overall, passengers expect a simple system that ensures fair outcomes. Instead, they
experience a complex system with limited transparency. The low intelligibility of Regulation
261/2004 and the related jurisprudence contributes to the complexity of the system, in which
there is a lack of trust between passengers and airlines.
Nevertheless, according to all stakeholders who participated in this study, awareness amongst
passengers of their rights has increased. This has been driven by a number of factors, including
traditional media and social media campaigns by the EC, NEBs, consumer groups and claim
agencies, as well as improved compliance by airlines with their obligation to inform passengers
of their rights. Despite this, the level of air passengers’ awareness of their rights is still not high
(c.30%), while the complexity of the rules means that passengers often do not fully understand
their rights even if they are aware of them. This sometimes also contributes to passengers
having unrealistic expectations as a result of misunderstanding the protections available,
further undermining passengers’ trust in the system.
Administrative burden and costs incurred for passengers
The time and the costs involved for passengers seeking redress vary depending on the
outcome at each stage of the process (i.e. whether a satisfactory response is received directly
by the airline, or whether a complaint is then lodged with a NEB, or whether a case is brought
to an ADR, etc.). Elapsed time may range from a few hours to several months, while costs may
range from zero to as much as half the compensation amount if a claim agency is engaged and
opts for court action. At the same time, the level of know-how required for passengers to
pursue a claim is high and may discourage them from starting the process or continuing with it
if disputes arise. The burden for passengers may be exacerbated if they are not able to contact
airlines or complete the process in their own language, or if they have to refer to NEBs, ADRs
or courts that are not in their country of residence.
Passengers with disabilities or reduced mobility
Approximately 10 % of the EU population lives with some type of disability
128
. All relevant
stakeholders agreed that the number of PRMs is growing strongly, representing an
increasingly large proportion of total passengers. Reasons stated for this growth included:
•
•
The wide scope of application. PRMs include people with disabilities (including temporary
disabilities) and less mobile people (e.g. elderly passengers);
An ageing European population with disposable income and a higher propensity to fly that
is more likely to require assistance; and
https://europa.eu/rapid/press-release_IP-07-1173_en.htm
128
January 2020 | 219
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0246.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
Increased awareness that PRM assistance is available.
The expectation of PRMs is that they are provided with appropriate assistance at their origin
airport, that they are able to travel, that their mobility equipment or other assistive devices
are accommodated and transported securely, and that they are able to disembark in a timely
manner and receive appropriate assistance at their destination airport.
Airlines are prohibited from denying carriage to PRMs on the basis of their disability, except in
cases where a passenger does not have a valid ticket or reservation or the size of the aircraft
or its doors makes the embarkation or carriage of that PRM physically impossible. The carriage
of PRMs may also be denied in order for airlines to meet safety requirements.
PRM representatives and NEBs agreed that the level of service provided by airports and
airlines generally complies with the requirements of Regulation 1107/2006, and while PRM
representatives noted that service quality can vary across airports, NEBs received very few
complaints in relation to PRM issues. Despite this, there remain instances when things go
wrong and the impact of these can be significant for the individuals involved.
PRM representatives highlighted denied boarding at the gate and damaged mobility
equipment as areas of particular concern.
•
Denied boarding of PRMs at the gate on safety grounds can be seen by PRMs as arbitrary
(e.g. denied on the inbound flight when no issues were raised on the outbound one) and
incontestable (i.e. it is not possible to contest
or disprove “safety reason” justifications)
and by happening at the gate, leaves very little opportunity for the issue to be resolved
before the flight departs.
Damaged mobility equipment, depending on its severity, can have an immediate and
significant impact on PRMs, while compensation is governed by the Montreal Convention
and Regulation 889/2002 and limited to approximately €1,400 (1,131 SDR), where the
value of some mobility equipment may be several times this amount.
•
Airlines’ and airports’ perspective
on air passenger rights
The liberalisation of the European air transport market has generated significant benefits for
consumers: a wider choice of air services and intense price competition between air carriers
which has resulted in significantly lower fares. To limit any potential negative impacts that this
might have on the quality of service delivered to air passengers and consumers, a number of
measures have been taken at European Union-level to protect them. As well as protecting
passengers, the European Commission expected these measures to contribute to an
improvement in the quality of service that European airlines provide to their customers and
make the airlines more competitive
129
. The clear definition of responsibilities between airlines
(e.g. for care and assistance due to passengers affected by disruption) and airports (e.g. for the
provision of PRM services) was also expected to contribute to a level playing field across the
EU and more uniform minimum quality standards, while supporting passenger confidence
across the EU aviation market.
129
https://europa.eu/rapid/press-release_IP-05-181_en.htm
January 2020 | 220
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0247.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Cost to airlines
The analysis indicates that the costs incurred by airlines through the implementation of
Regulation 261/2004 has grown significantly since 2011. The average direct cost per passenger
is estimated
130
to have increased at a compound annual growth rate (CAGR) of +13.6% from
€1.8 in 2011 to €4.4 in 2018, driven by a combination of increased levels of disruption and
increased claim rates for compensation. The increase in the claim rate (8% in 2011, 38% in
2018) has been driven by increased awareness among passengers of their rights and the
activity of claim agencies. At the same time a larger proportion of passengers are potentially
eligible to claim, as a result of the evolving interpretation of extraordinary circumstances,
which has become narrower (e.g. through the Siewert ruling (Case C-394/14)) and the
Regulation’s scope, which has become wider (e.g. the Wegener ruling (Case C-537/17)).
The cost of Regulation 261/2004 forms a relatively small part of airlines’ cost base, however,
as the overall cost of this Regulation has increased, this share has also grown and in the case
of LCCs has overtaken the cost of marketing and distribution. At the same time, airlines’
average yield (i.e. fare) has fallen and in 2018, the estimated average cost per passenger
generated by Regulation 261/2004 represented nearly 3.0% of the yield, up from 1.0% in 2012.
While the average cost per passenger is not very high (€4.4 in 2018), as costs are spread over a
very large number of passengers, the average cost of Regulation 261/2004 for passengers who
are disrupted is high, representing over 90% of airlines’ yield on average in 2018.
The
Regulation was designed for this cost to be high to discourage airlines from taking commercial
actions that would inconvenience passengers (e.g. overbooking), however, as more
operational disruptions are also covered (e.g. technical defects inherent in the normal
exercise of the activity of the air carrier), the cost per passenger affected by disruption may
generate disincentives for airlines to actually operate disrupted severely delayed flights and
incur operating costs in addition to the disruption costs.
In addition to the direct costs for compensation, care and assistance, and reimbursement and
re-routing that airlines incur as a result of implementing Regulation 261/2004, airlines also
incur administrative costs and legal costs for handling passenger claims, as well as costs for
measures taken to mitigate the risk of disruption. Based on stakeholder inputs, administrative
and legal costs were found to be up to 0.6% of the overall cost base in 2018, while the cost of
mitigation measures (e.g. lease and maintenance costs for spare aircraft) contributed
approximately 0.4% to the overall cost base. The extent to which all of these costs may be
attributed to Regulation 261/2004, as opposed to normal steps taken to ensure a level of
operational resilience is not straightforward to evidence.
A key issue for the airlines is the fact that the right to redress defined in Regulation 261/2004
is not guaranteed and as a result they are not able to recover costs for care and compensation
that they might have incurred from third parties (e.g. from airports, ANSPs, groundhandlers
and other parties) where these may have contributed to the disruption. The Regulation’s costs
then are either internalised by airlines, impacting their profitability, or are externalised as an
increase in fares.
130
Estimation based on the level of disruption recorded (CODA data) and the claim rates (airline and
claim agency data) and cross-checked against cost data of 8 airlines accounting for 25% of the market.
January 2020 | 221
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0248.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Impact on air fares
Airlines provided mixed views as to the extent to which fares have been impacted by
Regulation 261/2004. Seven airlines indicated that air fares have on average been impacted by
costs of Regulation 261/2004, as all costs have to be covered by revenues, although the
impact may not be direct on a route-by-route basis. Ten airlines indicated that air fares are
generally dictated by the market and that the impact of the additional costs is on profitability
(and investment opportunity), resulting in a restriction in the number of routes operated and a
reduction in connectivity offered. The overall impact of the Regulation on airlines varies
according to their business model and the market they operate in, with network carriers, low
cost carriers, regional carriers and charter carriers all highlighting different aspects of the APR
protection provisions that affect them the most.
Cost to airports
Regulation 261/2004 does not impose a legal obligation on airports, since passengers’ direct
relationship is with the airlines. Nevertheless, some airports stated that they provide support
beyond their legal obligations to passengers, as not all airlines comply with Regulation
261/2004 in the same way. Airports also take steps to support airlines in fulfilling their duties
in a number of ways (e.g. through making arrangements for food and beverage outlets to
remain open for extended periods).
The support provided by airports to airlines and to passengers generates some incremental
costs for airports, however these are small, indistinguishable from costs that the airport would
anyway incur (e.g. passenger contact centre staff) and not always directly related to
Regulation 261/2004. Any costs incurred are generally not charged directly back to individual
airlines, but do form part of airports’ overall cost base, which is eventually recovered through
airport charges.
The costs airports incur for providing PRM services are passed through to passengers in the
form of the PRM charge that all passengers pay on their tickets. The value of this charge is
overseen by the independent supervisory authority (ISA) competent for airport charges.
Revenues raised by the PRM charge are held in a trust (escrow) account and are used to cover
the cost of service provision by airports (or their subcontractors if the service has been
outsourced). Any accumulated revenue or shortfalls in revenue is rolled over or recovered
during the next period for which the charge is set (e.g. a shortfall in revenue compared to the
costs in one year will be recovered through a slightly higher charge the following year).
Monitoring and enforcement processes under Regulation (EC) No 261/2004
Monitoring and enforcement practices
Significant differences exist across the different Member States, both in terms of the way that
NEBs are dealing with individual complaints, as well as the enforcement powers they have.
The approach to enforcement and complaint handling varies between NEBs. Whereas some
NEBs are able to accept and enforce individual complaints, others cannot deal with passenger
complaints from individuals but instead perform enforcement on a system-wide level and
refer passengers to an ADR body.
In many cases, when NEBs have been set-up, their organisation and powers have not been
defined in terms of adequate outcomes for customers or for effective monitoring and
enforcement of the industry. Instead they reflect already existing administrative authorities,
among which many had no consumer protection background, that have been given additional
January 2020 | 222
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0249.png
Study on the current level of protection of air passenger rights in the EU | Final Report
functions to handle passenger rights with different levels of resources and access to systems,
and in different legal frameworks.
Different powers specified at national level and the binding/non-binding nature of NEBs
decisions are creating different outcomes for passengers across the EU+3 (theoretically even
for the same flight). This is also the case for the assessment of extraordinary circumstances
which creates an unfair application of APR for passengers and for all stakeholders involved.
In recent years, most NEBs have noted a substantial increase in the number of complaints
received under Regulation 261/2004. The number of complaints has been increasing steadily
since 2011, presenting challenges for resources and timeframes for addressing complaints.
Many NEBs have noted increases of up to 200% in the number of complaints received since
2013. For passengers this may result in a delay to complaint handling process. NEBs have had
to react by increasing the number of staff (where possible) that deals with air passenger rights
within their organisation. The workload for the complaint handling may also prevent the NEBs
from performing more systematic enforcement.
Oversight and sanctioning
In principle, NEBs should be undertaking monitoring activities to maintain oversight of airlines’
compliance with the requirements of Regulation 261/2004, however NEBs do not all do this at
system level either “by definition” (e.g. Greece) or because their
resources are dedicated to
handling individual passenger complaints.
As with complaint-handling, different sanctioning powers and binding/ non-binding nature of
decisions also create different outcomes for airlines across the EU/ EEA/ CH
–
possibly
contributing to some competitive distortions
–
although this was not a concern raised by
airlines (within the EU). Points were raised however about the competitive impact for carriers
outside the EU.
The level of information available to NEBs to allow them to fulfil their monitoring and
enforcement role is not sufficient. There is a lack of reporting requirements for airlines on
overall compliance. As a result, the NEBs’ enforcement is based only on complaints received
and, potentially, inspections. Some NEBs do proactively carry out inspection activities at
airports to monitor aspects of the regulation such as information provision and care and
assistance (as opposed to compensation).
Some aspects of the requirements under the regulation are also not readily measurable and/
or enforceable. Difficulties with enforcement may be a result of a wording which allows a
case-by-case assessment (e.g. re-routing under comparable transport conditions at the earliest
opportunity) which results in different interpretations of what constitutes an infringement.
The issue has been investigated further by two NEBs (Austria and the UK), which has resulted
in an official ruling in Austria and an open letter to airlines in the UK. NEBs have noted a
number of difficulties that emerge in trying to assess compliance with aspects of the
Regulation (e.g. the requirement to ask for volunteers for denied boarding) which are difficult
to record or provide evidence for retrospectively.
Many NEBs have noted that they assess sanctioning to be a final measure and will issue
warnings to airlines in the first instance to encourage behavioural change. Very few sanctions
have been applied across the EU/EEA/CH, and where sanctions are applied (e.g. Greece and
Spain) it is unclear whether they are
effective and driving any systematic change in airlines’
behaviour.
January 2020 | 223
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0250.png
Study on the current level of protection of air passenger rights in the EU | Final Report
NEB cooperation
Good cooperation exists between NEBs regarding the forwarding of complaints. Upon the
passenger’s request, almost all NEBs will forward the complete complaint to the competent
NEB alongside a short summary of the case.
Some NEBs note positive experience with using the Wiki platform to exchange information
and clarify questions, however
–
as with any such platform
–
NEBs noted that its value
depended on its content and required the commitment of participants to dedicate some
resources to it.
General consumer protection framework, other means of redress and claim agencies
Air passenger rights protections are complementary to other, wider protections offered by the
general consumer protection framework. Similarly, air passenger rights enforcement
mechanisms can be complemented by wider public enforcement mechanisms established
under the Consumer Protection Cooperation (CPC) Regulation. In parallel, passengers may
seek individual redress by turning to private enforcement tools or claim agencies.
The interaction between the system of redress dedicated to APR (airlines, NEBs) and the
private enforcement tools available more widely (ADR, courts), coupled with the involvement
of claim agencies, creates a lot of complexity, has poor intelligibility and generates delay and
cost as part of the process.
General consumer protection framework
There are overlapping compensation entitlements for consumers under Regulation 261/2004
and, where the consumer bought the flight as part of a package, under the PTD, which creates
some complexity for travel agents and tour operators. Travel agents and tour operators are
the holders of the relationship with customers who booked a package and the natural point of
contact for these customers when they are subject to disruption. Better demarcation of
responsibilities, transparency and information exchange would be required between
stakeholders to ensure that liabilities for compensation rest with the correct party.
The fact the travel agents and tour operators are the natural point of contact for passengers
who booked their flights through such intermediaries or as part of a package is also relevant to
the airlines’ obligation to provide passengers with information.
Airlines do not always have the
contact details of their passengers as travel agents/tour operators view that such contact
details are commercially sensitive, since these passengers form their customer base. Where
customers’ contact details are provided
to an airline, travel agents and tour operators state
that airlines should not be permitted to use customers’ contact details for commercial
purposes (e.g. marketing offers).
With the exception of no-show clauses used by airlines, other issues were not raised by
stakeholders relating to general consumer protection legislation. A number of EU Member
State courts, including in Germany, Spain and Austria, have ruled that the no-show clauses are
unfair contract terms which breach national legislation based on EU Directives.
Public enforcement mechanisms
Hardly any NEBs use the CPC Network. The CPC Network concerns action in response to
general practices (such as failure to have appropriate policies or procedures in place) which
might involve multiple enforcement bodies in several Member States. As a result, the network
is viewed by NEBs as being “of limited relevance to the enforcement of Regulation 261/2004”,
January 2020 | 224
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0251.png
Study on the current level of protection of air passenger rights in the EU | Final Report
which predominantly involves the enforcement of individual incidents by a NEB in the same
Member State as that within which the incident occurred. NEBs have also not used the
functions offered by the CPC Network for providing a coordinated position, for example, with
respect to the application of extraordinary circumstances in the case of mass flight disruptions
–
an approach that passenger representatives would welcome.
Individual complaint handling and redress
The ECC-Net is a valuable resource cross-border for passengers. It supports them in seeking
redress by providing a single contact point for them to address their complaint to, which is
able to handle this complaint in their mother tongue. The network acts as a facilitator and has
flexibility in the way in which it can follow up a passenger complaint. It can address the airline
in the other country on behalf of the passenger and/ or turn to the competent NEB. The ECC-
Net then acts as a mechanism for reducing the fragmentation of the NEBs across Europe and
additionally can handle all complaints related to APR, covering Regulation 261/2004,
Regulation 1107/2006 and the Montreal Convention. ECC-Net however does not have the
powers to issue any (binding or non-binding) decisions in the cases it handles.
In general, ADRs are a comparatively efficient and effective way for handling disputed claims
within the existing air passenger rights framework, especially as compared to the courts.
However, the coverage of ADRs across the EU/ EEA is fragmented and suffers shortcomings
such as the participation of airlines only being voluntary; a lack of sector expertise at general
consumer bodies; restricted legal scope and interpretation of the legislation (e.g. not including
case law); and the non-binding nature of their decisions.
The emergence of claim agencies in recent years has been a particularly significant
development in the area of air passenger rights. Claim agencies deal with claims enquiries,
process eligible claims and monitor flight disruptions on very large scale with a high degree of
automation that has shifted the balance in the air passenger rights system, generating a
significant compensation, administrative and legal burden for airlines and a large number of
cases in the courts. At the same time, passengers may have to pay up to 50% of their
compensation to the claim agencies in some cases, depending on steps taken for the claim to
be resolved (i.e. whether this is resolved between the claim agency and the airline or whether
the case is taken to court by the claim agency). A number of the practices used by claim
agencies have been highlighted as problematic by NEBs, ECCs, passenger representatives and
airlines. A particular concern for airlines is the readiness with which claim agencies resort to
the courts, as courts generate a lot of uncertainty, complexity and cost through their
sometimes-inconsistent
interpretation of the Regulation’s provisions at a local level.
However, as also pointed out by NEBs and passenger representatives, claim agencies have
supported increased awareness of air passenger rights (since this drives their income), and do
indeed fill a protection and enforcement gap, acting to ensure passengers’ rights are fulfilled
in situations where passengers might have encountered difficulties in doing so themselves.
Air passenger rights outside the EU
ICAO’s Core Principles on Consumer protection
ICAO has established a set of Core Principles on Consumer protection for before, during and
after travel. The EU legislative framework is generally consistent with these Core Principles
through a combination of requirements specified in Regulation 1008/2008, Regulation
2111/2005 and Regulation 261/2004. The gaps between the ICAO Core Principles and the EU
January 2020 | 225
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0252.png
Study on the current level of protection of air passenger rights in the EU | Final Report
framework (e.g. on keeping passengers informed throughout their journey) are addressed by
the 2013 Proposal for the revision of Regulation 261/2004.
APR approaches outside the EU
In non-EU countries, the approach to protections available to air passengers ranges from
regulatory regimes (as in the EU and Malaysia) to voluntary ones (as in Australia and the UAE).
Typically, regulatory and voluntary regimes both recognise an obligation for re-
routing/reimbursement, but none of the voluntary regimes reviewed offer compensation to
passengers affected by disruption. Further, regulatory regimes in Brazil, China, Indonesia and
Malaysia do not offer compensation in addition to reimbursement. The approach towards
provision of care under extraordinary circumstances is also weaker under voluntary regimes
than under regulatory ones.
A number of good practices were identified through the review of air passenger rights outside
the EU, including the following:
•
Monitoring of compliance, including formal reporting requirements for airlines to provide
authorities with information on operational performance and claim handling
performance;
The requirement for airlines to provide information to passengers about their journey
during the journey (including the causes of disruption);
The requirement for airlines to provide contact details to passengers, handle local
languages and adhere to deadlines for keeping passengers up to date on the status of
their complaints; and
Transparent claim handling processes and platforms between airlines and authorities,
leveraging suitable technologies.
•
•
•
Impact of airline insolvencies
Developments since 2011
Between 2011 and October 2019, we estimate that 5.6 million passengers were impacted by
airline insolvencies in some way. This is equivalent to 0.04% of total EU passengers during this
period. In 2017, which included the relatively large bankruptcy of Monarch, this equated to
0.09% of total EU passengers being affected (i.e. unable to travel) or stranded due to airline
failure. In 2019 this has grown to 0.14% due to the bankruptcies of Thomas Cook, Germania,
Adria, Aigle Azur and WOW air. Over the period considered, the proportion of passengers
affected or stranded was 0.02% in 2011, rising to 0.10% in 2012 and as low as 0.01% in 2015
and 2016.
On average, over the period 2011-June 2019, we estimate that passengers directly affected by
insolvencies incurred €431 in costs, 83% of which (i.e. €357) were not recoverable under one
of the protection mechanisms.
Protection of passengers
The level of protection obtained by a passenger depends mainly on where and how their
itinerary was purchased. The most significant difference being between standalone (flight-
only) tickets and those purchased as part of a package or linked travel arrangement. The
current EU framework does not provide any direct insolvency protection requirements for
flight-only ticket holders and these passengers must instead ensure their own protection.
Insolvency protections for flight-only (i.e. single travel service) ticket holders have not
January 2020 | 226
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0253.png
Study on the current level of protection of air passenger rights in the EU | Final Report
materially changed since 2011. However, some passengers who previously would have been
considered flight-only ticket holders may, under the new Package Travel Directive since July
2018, be covered by the provisions for linked travel arrangements/packages. This implies that
some airlines are already contributing to the different insolvency protection put in place in the
EU/EEA Member States. This is a change of trend since 2011, with all types of airlines (charter,
low-cost, scheduled short-haul only, scheduled mixed short and long, long-haul) being
concerned.
Across Europe, there only exists partial solutions for the protection of passengers in the case
of airline insolvency. These protections overlap and none are universal, such that on one flight
several passengers may be covered multiple times, for example if they had purchased their
ticket with a credit card and were also covered by a travel insurance policy, whilst others may
not have any protection at all, especially if they booked flight-only tickets directly from the
carrier.
•
In general terms, purchases of other travel services such as accommodation made at the
same time as the purchase of a flight, will normally result in the creation of a package or
linked travel arrangement and be subject to the protections set out in the Package Travel
Directive;
Scheduled Airline Failure Insurance (SAFI) has allowed passengers to insure themselves
against some of the costs resulting from the insolvency of an airline on which they are
booked. SAFI covers the costs of repatriation if the passenger is stranded, or
reimbursement for the cost of the original flight tickets in the case that the passenger
cannot recover it. However, SAFI is only available in a small number of Member States and
excludes any carriers publicly known to be in financial difficulty. It is also not very well-
known by passengers;
Some Member States have put in place Travel Funds. In the event of insolvency, money
can be extracted from the fund to assist with the repatriations of stranded passengers and
the reorganisation of affected bookings. However, compensation will be paid out only if
there is sufficient money remaining in the fund which may be an issue for large-scale
events;
Payments for tickets purchased via IATA travel agents are held by a central payment
mechanism before being passed on to the airline, in settlements at regular intervals
(usually monthly). If the airline becomes insolvent, passengers whose payments have not
yet been passed on to the airline should be able to recover what they paid. Across Europe,
this type of protection does not appear particularly useful;
Other protections include those available through the payment system used (such as
credit cards) but these are only available in a limited number of Member States to credit
card holders only;
Passengers may benefit from travel insurance policies which include supplier failure cover,
although not all such policies do;
Rescue fares may be offered by competing airlines (at their discretion) to stranded
customers, allowing them to make their journey home at a reduced priced, but there is
little public awareness of these;
•
•
•
•
•
•
With four bankruptcies over a very short period of time, the European Parliament is keen to
remedy this patchy level of protection and asked for the creation of guarantee funds and
insurance contracts for that purpose (Resolution RC-B9-0118/2019), echoing their
January 2020 | 227
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0254.png
Study on the current level of protection of air passenger rights in the EU | Final Report
amendments of the 2013 Proposal adopted in 2014
131
. This should be further considered by
the Commission, in particular taking into consideration the recommendations made by the UK
Insolvency Review in 2019 to establish a UK-wide protection fund. However, insolvency laws
differ widely across Europe, explaining why the current situation is so heterogeneous. This
further means that a solution that works in the UK may not necessarily be well-adapted to
another Member State, so any further recommendations on possible improvements at EU
level ought to be carefully researched.
Ways forward
In general NEBs and industry stakeholders welcome the review of Regulation 261/2004. The
EC’s 2013 proposal for the revision of
Regulation 261/2004 sought to balance stronger
enforcement policy with economic incentives for carriers. Different aspects of this are
supported by different stakeholders, depending on their perspective, but overall stakeholders
were keen to see the revision move forward through the legislative process.
The main concerns raised by the three key stakeholder groups (i.e. passengers, airlines and
NEBs) are outlined in Figure 9.1 below. As illustrated in the figure, there exist areas of overlap
in stakeholders’ concerns where their views converge. These areas of convergence
include the
following issues, which all contribute to ensuring that a good quality of service is provided to
passengers who face disruption:
•
•
•
•
•
•
Legal clarity and certainty to support implementation, including the definition of
extraordinary circumstances.
Simplification of the air passenger rights regime to make it more intelligible and
harmonise its implementation across the EU.
Provision of suitable information to passengers about their journey.
Provision of suitable care and assistance at the time of the incident.
Improved transparency about processes, timelines/deadlines and outcomes.
Improved claim (and complaint) handling processes that are easy to access, easy to follow
and completed in a timely manner.
This convergence between interests was confirmed through the workshop held in June 2019
which focussed on potential ways forward for a more balanced air passenger rights framework
and involved all three main aviation stakeholder groups (passenger representatives, airlines
and NEBs).
131
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2014-
0020&language=EN
January 2020 | 228
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0255.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure 9.1:
Key stakeholders’ main concerns and areas of convergence
Source: Stakeholder consultation, Steer analysis
The issues above are all covered to a varying extent by different aspects of the 2013 proposal
for the revision of Regulation 261/2004 (as displayed in Table 1.1). For example, the provision
of suitable information to passengers about their journey is covered by item 1 in Table 1.1
“Information
on delayed or cancelled flights”, while the provision of suitable care and
assistance at the time of the incident is supported by the harmonisation of time thresholds to
two hours for all passengers facing disruption to be entitled to receive care and assistance
under item 3 in Table 1.1.
Problems and possible ways forward
Table 9.1 below summarises the problems and their causes that emerge from the findings of
this study. Possible ways to ensure effective and consistent enforcement of air passenger
rights across the EU are also presented, along with the stakeholders that would be required to
take action and whether these actions could be implemented within the existing framework or
if it would require the framework to be adapted.
January 2020 | 229
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0256.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table 9.1: Problems and possible ways forward
Item
Problem
Passengers are not
able to make
informed choices
about airlines on the
basis of airlines’ air
passenger rights-
related performance.
Passengers are not
always adequately
informed during and
after travel
Causes
Ways to address these
Who
Member States
(voluntarily upon
recommendation
from the EC)
- or -
European Union
Framework
Within the existing
framework
- or -
Adapting the
framework
1
Lack of consolidated reporting on airline
compliance at Member State or EU-level.
Improved transparency by NEBs to the public
about airline compliance.
2
Regulation 261/2004 does not include a
requirement for operators to inform
passengers during and after travel.
Right to information of passengers during all
phases of travel should be improved in
Regulation 261/2004 to align it with the Ten
core passenger rights
Improved legal clarity of Regulation 261/2004
and associated jurisprudence by combining into
a single text, including clarity on the application
to connecting flights (Definition of flight vs
journey in the Regulation)
Simplification of the rules, including clarity on
re-routing, advance rescheduling and the
harmonisation of time thresholds for the
provision of care and assistance.
Harmonisation of the statute of limitations
applicable for Regulation 261/2004 (e.g. to be
similar to that which applies for the Montreal
Convention).
Clarify whether or not no-show clauses are
acceptable. If they are found to be, improved
transparency required by airlines to the public
European Union
Adapting the
framework
3
Poor intelligibility of
air passenger rights
rules for all
stakeholders
(passengers, airlines,
NEBs, ADR, etc.).
The rules emerge from a combination of:
- Regulation 261/2004
- a series of CJEU rulings
European Union
Adapting the
framework
Different statues of limitations across Member
States contribute to the complexity of the
system.
No-show clauses are not always clear to
passengers
European Union
Adapting the
framework
Within the existing
framework
- or -
European Union
January 2020 | 230
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0257.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Item
Problem
Causes
Ways to address these
Who
Framework
Adapting the
framework
Inconsistent application of Regulation
261/2004 as a result of manual claim
processing by airlines.
Insufficient information made available by
airlines to passengers affected by disruption
about the cause or the nature of the
disruption.
Airlines should improve their claim handling
procedures to ensure coherence for each flight.
Better communication between airlines and
passengers, including the reasons for travel
disruption being published and the provision of
clear, evidence-based explanations, and
reasons for their decisions.
NEBs should have sufficient oversight powers,
sanctioning powers and resources to ensure
improved airline compliance with Regulation
261/2004.
The cost of compliance could be reduced so
that airlines are not as disincentivised to
comply with regulatory requirements.
Better coordination on the interpretation of
extraordinary circumstances between NEBs.
Airlines
Within the existing
framework
Airlines
Within the existing
framework
Member States
Within the existing
framework
4
Different
compensation
outcomes for
passengers affected
by the same
disruption event.
Airlines are not incentivised to fully comply
with Regulation 261/2004.
European Union
Member States and
European Union
Adapting the
framework
Within the existing
framework
NEBs (in the departure or arrival Member
State) may interpret extraordinary
circumstances in different ways.
Deadlines for processing passenger claims
applicable to airlines are only provided in EC
guidance. NEB processes are defined national
laws at Member State level.
The definition of formal deadlines for airline
and NEB claim handling procedures.
European Union
Adapting the
framework
NEBs are set up under national law across the
EU+3 and do not all have the same complaint
handling powers on behalf of passengers.
Harmonisation of complaint handling powers
across NEBs and definition of complaint
handling processes.
Member States
(voluntarily upon
recommendation
from the EC)
- or -
European Union
Within the existing
framework
- or
–
Adapting the
framework
January 2020 | 231
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0258.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Item
Problem
Disputes resulting
from the
inconsistent
interpretation of
extraordinary
circumstances and
application all
reasonable
measures.
Causes
Ways to address these
Inclusion of a non-exhaustive list of
extraordinary circumstances in the annex to the
Regulation would support both legal clarity and
coordination of its implementation by all
stakeholders. A draft list of extraordinary
circumstances was included in the EC’s 2013
proposal. Subsequent CJEU rulings (e.g. Case C-
549/07 Wallentin-Hermann) are also relevant.
Clarification of the application of all reasonable
measures to a specific event or at system-level.
Who
Framework
5
Different airlines, different NEBs and courts
may interpret extraordinary circumstances and
the adoption of all reasonable measures in
different ways.
European Union
Adapting the
framework
6
PRMs not fully
compensated for the
value of damaged
mobility equipment.
While the value of mobility equipment can be
high, mobility equipment is not considered as
distinct from luggage under the Montreal
Convention (and Regulation 889/2002), which
sets a liability limit of approximately €1,400
(1,131 SDR).
The only reference to rights related to baggage
is on luggage liability limits in the Montreal
Convention
Provision for the compensation of the declared
replacement value of damaged mobility
equipment.
European Union
Adapting the
framework
7
No specific rules on
baggage in
Regulation 261/2004
Reflection needed as to whether there is a need
to include baggage rules as part of Regulation
261/2004.
If so, possible inclusion of mishandled baggage
within the powers of NEBs.
NEBs should provide clear, accurate and
complete information to passengers about:
•
the scope of complaints the organisation
can consider.
•
what they can and cannot expect from the
complaint handling arrangements,
including timescales and likely remedies.
•
how, when and where passengers should
escalate their complaints.
Member States and
European Union
Adapting the
framework
8
Passenger
expectations do not
always correspond to
NEBs’ competence.
NEBs are set up under national law across the
EU+3 and do not all have the same complaint
handling powers on behalf of passengers or
binding/non-binding
decision powers. NEBs’
relative position in the potential dispute
escalation steps (e.g. to ADR or to courts) also
differs between Member States.
NEBs
Within existing
framework
January 2020 | 232
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0259.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Item
Problem
Lack of ADR in
Member States
and/or voluntary
participation by
airlines.
Causes
ADR bodies are set up under national law.
Airline participation in ADR is not mandatory in
all Member States.
NEBs and ADR bodies are set up under
national law across the EU+3 and do not all
have the same complaint handling powers. In
some Member States individual complaints are
handled by ADRs only, in other Member States
NEBs are also ADRs.
Ways to address these
Who
Framework
9
Development of a mandatory EU-wide
mediation body on air passenger rights.
European Union
Adapting the
framework
10
Potential overlap
between NEB and
ADR competences.
Clarification of the role of NEBs and ADRs.
Provision of technical assistance from NEBs to
ADRs, if relevant.
Member States
Within existing
framework
11
Resource challenges
for NEBs and/or
ADRs
Increasing volume of complaints addressed to
NEBs and/or ADRs from passengers and claim
agencies.
Improved airline claim handling processes and
airline communication with passengers.
Increased time thresholds for compensation
per the 2013 proposal for the revision of
Regulation 261/2004.
Improved transparency through the provision
of information from airlines to NEBs on
operational performance, handling of
disruption and processing of claims would
support improved monitoring and
enforcement. The obligation for airlines to do
so would need to be defined in the legal
framework. The format in which such
information should be provided ought to also
be defined.
Organise NEBs so that they can monitor
compliance (especially on care and assistance)
more effectively
Airlines
Within existing
framework
Adapting the
framework
European Union
12
Limited monitoring
and enforcement of
airline compliance
with Regulation
261/2004 by NEBs.
NEB monitoring and enforcement activity is
predominantly reactive, instigated by
complaints received from passengers.
Member States and
European Union
Adapting the
framework
NEBs focus on passenger complaints as a
priority and have less resources available to
Member States and
European Union
Within existing
framework
January 2020 | 233
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0260.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Item
Problem
Causes
monitor airline compliance, especially on
provision of care and assistance.
Ways to address these
Who
Framework
Lack of reporting requirements for NEBs.
NEBs should create and maintain reliable and
usable records as evidence of their activities.
These records should include the evidence
considered and the reasons for decisions.
Best practice should be shared amongst NEBs.
Agreement should be reached on the level of
monitoring and enforcement undertaken by
NEBs.
Increased time thresholds for compensation
and limits to the provision of care and
assistance, per the 2013 proposal for the
revision of Regulation 261/2004.
Development of a primary (framework)
Regulation for air passenger rights, which is
supported by secondary (implementing)
Regulations that can be adapted more flexibly
in response to changes in the market and airline
practices or complementary/interacting
legislation (e.g. ADR or PTD).
Member States
(voluntarily upon
recommendation
from the EC)
- or -
European Union
Within the existing
framework
- or -
Adapting the
framework
13
Increasing cost of
Regulation 261/2004
per passenger for
airlines
Increasing disruption in the system, some of
which is attributed to airlines. Increasing claim
rates as a result of improved awareness
amongst passengers of their rights and the
emergence of claim agencies.
European Union
Adapting the
framework
14
Lack of flexibility to
adapt air passenger
rights rules.
Air passenger rights are defined in primary
legislation.
European Union
Adapting the
framework
15
Lack of a
comprehensive
protection system
for passengers in the
event of airline
insolvency
The level of protection is patchy having never
been comprehensively addressed to protect all
passengers whatever booking channel used
Member States
Research possible options and assess their
impacts on all relevant parties
- or -
European Union
New framework
January 2020 | 234
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0261.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Appendices
A
B
C
D
E
F
G
H
Details of the stakeholder consultation
Workshop summaries
Cost of APR implementation (detailed assumptions and results)
Right to redress overview
EU+3 NEB fiches
Non-EU air passenger rights country fiches
Airline insolvency case studies
List of insolvent airlines
236
246
255
272
284
403
464
494
January 2020 | 235
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0262.png
Study on the current level of protection of air passenger rights in the EU | Final Report
A Details of the stakeholder
consultation
Approach
A.1
For the consultation process to be as effective as possible, different methods were used to
reach out to stakeholders. The figure below shows how we engaged with each group of
stakeholders to maximise the benefits of the field research for the study.
•
“Selected targeted stakeholders” included a large range of the main stakeholders from all
groups concerned with Air Passenger Rights (NEBs, airlines and representatives, airports
and representatives, passengers/consumers and representatives, other representative
organisations). As part of the engagement, these stakeholders were invited to:
–
Respond to a questionnaire;
–
Take part in an interview to discuss their questionnaire or, if the interview took place
before their questionnaire was submitted, focus the discussion on their key issues.
Given the nature of the study and the need for discussion of a range of complex
issues, it was a requirement in the Terms of Reference that this category covered 70
key stakeholders, with interviews taking place either face-to-face or by telephone;
–
Take part in a workshop (if invited); and
–
Contribute to a case study (if invited).
“Other targeted stakeholders” included all other key stakeholders not part of the
respondents selected above. We invited these stakeholders to:
–
Respond to a questionnaire;
–
Take part in targeted interviews if, when we examined their questionnaire responses,
we assessed that their contribution would enhance the study.
•
A.2
We did not engage in Open Public Consultation (i.e. with the general public in an uncontrolled
manner) as this was not part of the ToR. A Eurobarometer survey took place during the study.
Preliminary results from this survey were considered as part of our analysis.
January 2020 | 236
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0263.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure A.1: Stakeholder engagement strategy
Source: Steer
A.3
We undertook pilot interviews. These interviews were carried out to ensure that the key
themes highlighted in the Terms of Reference and our proposal were in line with the
experience of different stakeholders and that the questionnaires that were subsequently
developed for the full stakeholder engagement covered these themes.
Stakeholder engagement status
Overview
A.4
The table and figure below provide an overview of the stakeholder engagement.
Table A.1: Overview of stakeholder engagement by method
Method
Questionnaires
Status
We identified stakeholders and distributed questionnaires of eleven different
types:
1. EU+3 air carriers, both low-cost and legacy, and their representative
associations;
2. Non-EU carriers flying to the EU and their representative associations;
3. Consumer and passenger organisations;
4. Airports and their representative associations;
5. EU+3 National Enforcement Bodies (NEBs);
6. Alternative Dispute Resolution (ADR) bodies;
7. Claim agencies;
8. Authorities and consumer organisations in non-EU countries.
9. Travel agents/tour operators associations
10. Insurer associations
11. Online accessible version of the PRM section of the consumer and passenger
organisation questionnaire, shared with EDF and its members.
We distributed 297 questionnaires.
We received 159 questionnaire responses, as well as some more detailed
information in some cases.
January 2020 | 237
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0264.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Method
Interviews
Status
We undertook 31 face-to-face interviews, as well as 42 telephone interviews.
The terms of reference required that all EU/EEA/CH NEBs for Regulation (EC)
261/2004 were interviewed. We were able to interview (sometimes multiple
bodies) in 28 out of the 31 EU+3 countries. We received a questionnaire response
from the NEBs for Luxembourg, Poland and Romania, but were not able to
coordinate an interview with them.
We note that some key stakeholders were consulted more than once in the
process.
We engaged with NEBs, specifically the ones in countries where the insolvent
airlines were registered, and other stakeholders, to collect information on how
passengers were informed about and impacted by the insolvencies.
Two workshops took place as part of the study, with a third closing event after the
publication of the report. The first two workshops took place on:
1. Air Passenger Rights: International Lessons
–
14-15 May 2019
2. Air Passenger Rights: Ways forward
–
12 June 2019
Case studies
Workshops
A.5
The figure below provides an overview of the stakeholder engagement status by stakeholder
group. NEBs that are also ADRs have been counted twice.
Figure A.2: Overview of stakeholder engagement status by stakeholder group
EU+3 Air Carriers and
Representative Associations
3
Non-EU Air Carriers and
Representative Associations
Consumer and Passenger
Organisations
3
6
12
7
33
37
24
9
Airports and Representative
Associations
3
22
16
13
35
34
EU+3 National Enforcement
Bodies
1
-
3
Alternative Dispute Resolution
Bodies
3
Claim Agencies
a
-
Other Relevant Stakeholders and
Industry Associations
Relevant Organisations in
Non-EU Countries
3
10
5
5
25
January 2020 | 238
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0265.png
11
11
Study on the current level of protection of air passenger rights in the EU | Final Report
Steer received questionnaire response
received questionnaire response
No engagement
Declined to
No engagement
Steer
Awaiting questionnaire response
Awaiting questionnaire response
participate
Declined to participate
Source: Steer - *APRA and its 4 members submitted one coordinated response
Stakeholders contacted
A.6
The tables below show the stakeholders contacted as part of the consultation.
Table A.2: EU airlines contacted
Organisation
A4E - Airlines for Europe
Aegean Airlines
Air Baltic
Air Europa
Air France/KLM
Air Malta
AIRE - Airlines International
Representation in Europe
Albastar
Alitalia
APG airlines
ASL Airlines
Azores Airlines
Binter
British Airways / Iberia
(International Airline Group)
Bulgaria Air
Condor
Croatia Airlines
easyJet
ERAA - European Regions
Airline Association
EuroAlantic Airways
Finnair
IATA - International Air
Transport Association
Icelandair
Jet2
Loganair
LOT
Lufthansa Group
Luxair
Norwegian
Ryanair
SAS - Scandinavian Airlines
TAP Air Portugal
TAROM
Thomas Cook
Travel Service/Czech Airlines
TUI
Volotea
Wamos Air
Wizzair
Table A.3: Non-EU airlines contacted
Organisation
A4A - Airlines for America
AACO - Arab Air Carrier's
Organisation
Aeromexico
Air Canada
Air China
Air New Zealand
All Nippon Airways
Delta Air Lines
Delta Air Lines
El Al Israel Airlines
Emirates
Ethiopian Airlines
Etihad
Garuda Indonesia
Jet Airways (India)
LATAM Airlines Group
LATAM Airlines Group
Malaysia Airlines
Qantas
Qatar Airways
Royal Air Maroc
South African Airways
Turkish Airlines
United Airlines
Table A.4: Consumer and passenger organisations contacted
Country
EU-Wide
EU-Wide
EU-Wide
EU-Wide
EU-Wide
Belgium
Belgium
Type of Organisation
Association
Association
Association
Association
Association
Consumer Organisation
Passenger Organisation
Organisation
AGE Platform
BEUC - The European Consumer Association
EDF - European Disability Forum (and members)
EPF - European Passenger Federation
Europe Direct Contact Centre
Test - Achats
ACTP
–
Association of Public Transport Clients
January 2020 | 239
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0266.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
Belgium
Bulgaria
Bulgaria
Czech Republic
Czech Republic
Denmark
Denmark
Germany
Germany
Estonia
Estonia
Ireland
Ireland
Greece
Greece
Spain
Spain
France
France
France
Croatia
Croatia
Italy
Italy
Italy
Italy
Cyprus
Cyprus
Latvia
Latvia
Lithuania
Lithuania
Luxembourg
Luxembourg
Hungary
Hungary
Hungary
Malta
Malta
Netherlands
Netherlands
Netherlands
Austria
Austria
Poland
Poland
Poland
Type of Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
Passenger Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
Consumer Organisation
Passenger Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
Passenger Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
Passenger Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
Passenger Organisation
ECC
Organisation
ECC Belgium
BNAAC - Bulgarian National Association Active
Consumers
ECC Bulgaria
Czech association of consumers - dTest
ECC Czech Republic
Forbrugerrådet Tænk
ECC Denmark
VZBV - Federation of German Consumer Organisations
ECC Germany
ETL - Estonian Consumers Union
ECC Estonia
CAI - Consumers' Association of Ireland
ECC Ireland
KEPKA - Consumers' Protection Center
ECC Greece
OCU
–
Organisation of Consumers and Users
ECC Spain
UFC Que Choisir
FNAUT
–
National Federation of Transport User
Associations
ECC France
CAC - The Croatian Alliance of Consumers
ECC Croatia
CIE -
Consumatori Italiani per l’Europa
Altroconsumo
UTP
– Public Transport Users’ Association
ECC Italy
CCA - Cyprus Consumers Association
ECC Republic of Cyprus
LPIAA - Latvian National Association for Consumer
Protection
ECC Latvia
Alliance of Lithuanian Consumer Organisations
ECC Lithuania
ULC
–
Luxembourg Consumer Association
ECC Luxembourg
FEOSZ - National Federation of Associations for
Consumer Protection in Hungary
DERKE - Regional Transport Association of Debrecen
ECC Hungary
Ghaqda Tal-Konsumaturi
ECC Malta
CB - Consumentenbond
Travelers Public Transport (Rover)
ECC Netherlands
VKI - Austrian Consumers Association
ECC Austria
SKP
–
Association of Polish Consumers
ZM- Zielone Mazowsze
ECC Poland
January 2020 | 240
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0267.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
Portugal
Portugal
Romania
Romania
Slovenia
Slovenia
Slovakia
Slovakia
Finland
Finland
Sweden
Sweden
United Kingdom
United Kingdom
United Kingdom
Iceland
Norway
Norway
Switzerland
Type of Organisation
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
ECC
Consumer Organisation
Consumer Organisation
ECC
ECC
Consumer Organisation
ECC
Consumer Organisation
Organisation
DECO - The Portuguese Association for Consumer
Protection
ECC Portugal
APC Romania
ECC Romania
ZPS
–
Slovenian Consumer Association
ECC Slovenia
ZSS
–
Slovakian Consumer Association
ECC Slovakia
Kuluttajaliitto -
Consumers’ Union of Finland
ECC Finland
SK - Swedish Consumers' Association
ECC Sweden
Which?
Citizens Advice
ECC United Kingdom
ECC Iceland
Forbrukerrådet
ECC Norway
FRC
– Consumers’ Federation of French –
speaking
Switzerland
Table A.5: Airports contacted
Country
EU-Wide
Belgium
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Germany
Germany
Germany
Germany
Estonia
Ireland
Ireland
Greece
Greece
Spain
Spain
Spain
France
France
France
France
France
Airport
Airports Council
International (ACI) Europe
Brussels
Brussels - Charleroi
Sofia
Prague
Copenhagen
Berlin - Schönefeld
Berlin - Tegel
Düsseldorf
Frankfurt
Munich
Tallinn
Cork
Dublin
Athens
Thessaloniki
Barcelona- El Prat
Madrid - Barajas
Palma de Mallorca
Bordeaux–Mérignac
EuroAirport Basel Mulhouse
Freiburg
Marseille Provence
Nice Côte d'Azur
Paris Charles de Gaulle
Country
Italy
Italy
Cyprus
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
Slovakia
Slovenia
Finland
Sweden
United Kingdom
United Kingdom
United Kingdom
United Kingdom
United Kingdom
United Kingdom
Airport
Rome - Fiumicino
Verona Villafranca
Larnaca
Paphos
Riga
Vilnius
Luxembourg
Budapest
Malta
Amsterdam Schiphol
Vienna
Warsaw Chopin
Lisbon
Bucharest
Bratislava
Ljubljana Jože Pucnik
Helsinki
Stockholm Arlanda
London Heathrow
London Gatwick
London Stansted
Manchester
Glasgow
Aberdeen
January 2020 | 241
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0268.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
France
Croatia
Italy
Italy
Italy
Italy
Airport
Paris Orly
Zagreb
Catania-Fontanarossa
Milan Linate
Milan Malpensa
Rome - Ciampino
Country
United Kingdom
United Kingdom
United Kingdom
Iceland
Norway
Switzerland
Airport
Southampton
Newcastle
London City
Keflavík
Oslo
Zurich
Table A.6: National Enforcement Bodies contacted
Country
Belgium
Organisation
SPF Mobilité & Transport
Ministry of Transport,
Information Technologies and
Communications, Directorate
General, Civil Aviation
Administration
Civil Aviation Authority
Danish Transport,
Construction and Housing
Authority
National Civil Aviation
Authority of Germany (LBA)
TTJA - Consumer Protection
Body
Commission for Aviation
Regulation
Hellenic Civil Aviation
Authority
Spanish Aviation Safety and
Security Agency (AESA)
French Civil Aviation
Authority (DGAC)
Transportation Quality of
Service Authority (AQST)
Country
Hungary
Organisation
National Transport Authority,
Consumer Protection Body
Bulgaria
Hungary
Equal Treatment Authority
Czech
Republic
Denmark
Germany
Estonia
Ireland
Greece
Malta
Netherlands
Austria
Poland
Portugal
Romania
Malta Competition and
Consumer Affairs Authority
Human Environment and
Transport Inspectorate (ILT)
APF - The Passenger and
Passenger Rights Agency
Commission on Passengers'
Rights
Portuguese Civil Aviation
Authority (ANAC)
National Authority for Consumer
Protection - Romania
Ministry of Labour, Family and
Social Protection National
Authority for People with
Disabilities)
Civil Aviation Agency - Slovenia
Slovak Trade Inspectorate
Consumer Disputes Board, The
Finish Competition and
Consumer Authority & Consumer
Ombudsman, Finnish Transport
and Communications Agency
Traficom (Traficom)
Swedish Consumer Agency,
National Board for Consumer
Disputes
Civil Aviation Authority UK
Icelandic Transport Authority
Civil Aviation Authority Norway
Spain
Romania
France
France
Slovenia
Slovakia
Croatia
Croatian Civil Aviation Agency
Finland
Italy
Cyprus
Latvia
Latvia
Italian Civil Aviation Authority
(ENAC)
Department of Civil Aviation
Consumer Rights Protection
Centre (CRPC)
Civil Aviation Agency of Latvia
Sweden
United Kingdom
Iceland
Norway
January 2020 | 242
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0269.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
Lithuania
Luxembourg
Luxembourg
Organisation
Civil Aviation Administration -
Lithuania
Ministry of the Economy
Luxembourg Civil Aviation
Authority
Country
Switzerland
EFTA
Organisation
Federal Office of Civil Aviation
(FOCA)
EFTA Surveillance Authority
Table A.7: Alternative Dispute Resolution bodies contacted
Country
Belgium
Organisation
Consumer Mediation Service
Conciliation Committee for
disputes in the sector of air
transport within the
Commission for Consumer
Protection
Czech Trade Inspection
Authority
The Danish Transport and
Construction Agency (airline
passengers)
Aviation Conciliation Body at
the Federal Office for Justice
söp - Conciliation Body for
Public Transport
TTJA - Consumer Protection
Body
Country
Luxembourg
Organisation
National Consumer
Ombudsman Service
Conciliatory body of
Budapest
Bulgaria
Hungary
Czech Republic
Denmark
Malta
Netherlands
Pardee Consulta
Foundation for
Consumer Complaints
Committees (SGC)
APF - The Passenger
and Passenger Rights
Agency
Air Passenger
Watchdog
CNIACC - National
Information and
Arbitration Centre for
Consumer Disputes
National Authority of
Consumer Protection
in Romania
European Centre for
Dispute Resolution
(ECDR)
Slovak Trade
Inspection
Consumer Disputes
Board
National Board for
Consumer Disputes
(ARN)
Centre for Effective
Dispute Resolution
CEDR
Aviation ADR
The Ruling Committee
in Travel Industry
matters
Germany
Germany
Austria
Poland
Estonia
Portugal
Ireland
Net Neutrals
Romania
Greece
Spain
France
Croatia
ADR POINT Greece
National Consumer
Arbitration Board
MTV (Tourism and Travel
Mediation)
Mediation Centre at the
Croatian Chamber of
Economy
RisolviOnline.com - Milan
Chamber of Arbitration
Cyprus Consumer Centre for
Alternative Dispute
Resolution
Consumer Rights Protection
Centre of Latvia (CRPC/PTAC)
Slovenia
Slovakia
Finland
Sweden
Italy
United Kingdom
Cyprus
United Kingdom
Latvia
Iceland
January 2020 | 243
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0270.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
Lithuania
Organisation
State Consumer Rights
Protection Authority
Country
Norway
Organisation
Transport Complaints
Board and Package
Travel Committee
(NRF)
Table A.8: Claim agencies contacted
Organisation
AirHelp
APRA
–
Association of Passenger Rights Advocates
EUClaim
Flightright
Reclamador
Table A.9: Industry associations and insurers contacted
Organisation
ASA - Airport Services Association
ECTAA - European Travel Agents and Tour Operators Association
GBTA Europe - Global Business Travel Association
Insurance Europe
IPP (Scheduled Airline Failure Insurance Provider)
Table A.10: Non-EU countries contacted
Country
Australia
Australia
Brazil
Brazil
Canada
Canada
China
China
Ethiopia
India
India
Indonesia
Indonesia
International
Israel
Israel
Israel
Japan
Japan
Malaysia
Organisation
Authority
Consumer
Authority
Consumer
Authority
Consumer
Authority
Consumer
Authority
Authority
Consumer
Authority
Consumer
Association
Authority
Consumer
Legal group
Authority
Consumer
Authority
Department for Infrastructure, Regional Development & Cities -
Australian Government
CHOICE
National Civil Aviation Agency of Brazil
National Secretariat for Consumer Affairs
CTA - Canadian Transportation Agency
CAC - Consumers' Association of Canada
Civil Aviation Administration of China
China Consumers Association
ECAA -Ethiopian Civil Aviation Authority
DGCA India Directorate General of Civil Aviation
Consumer Coordination Council
Ministry of Air Transportation - Indonesia
Consumers Association Indonesia (YLKI)
ICAO - International Civil Aviation Organisation
Civil Aviation Authority of Israel
Israel Consumer Council
Rogel Partners - Israeli Law Firm
Civil Aviation Bureau of Japan
Consumers Japan
Malaysian Aviation Commission
January 2020 | 244
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0271.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Country
Malaysia
Mexico
Morocco
New Zealand
New Zealand
Nigeria
Qatar
Qatar
Singapore
Singapore
South Africa
South Africa
Turkey
Turkey
UAE
UAE
United States
United States
Organisation
Consumer
Authority
Authority
Authority
Consumer
Authority
Authority
Consumer
Authority
Consumer
Authority
Consumer
Authority
Consumer
Authority
Consumer
Authority
Consumer
Federation of Malaysian Consumers Associations (FOMCA)
Directorate General of Civil Aviation of Mexico
Ministry of Tourism, Air Transport, Crats and Social Economy
Ministry of Transport NZ
Consumer NZ
Nigerian Civil Aviation Authority (NCAA)
Civil Aviation Authority of Qatar
Consumer Protection Department
Civil Aviation Authority of Singapore
Consumer Association of Singapore
Department of Transport South Africa
South African National Consumer Union
Directorate General of Civil Aviation - Turkey
Turkish Consumer Rights Association (THD)
General Civil Aviation Authority - UAE
Department of Economic Development, Dubai
U.S DoT - Office of Aviation Enforcement and Proceedings
Aviation Consumer Protection Division
NAAP - National Association of Airline Passengers
Interviews
A.7
We undertook a large programme of stakeholder interviews, as detailed below. These were a
mix of face-to-face and telephone interviews. We also took part in wider industry events (e.g.
APRA round table at the European Parliament, ERA Industry Affairs Group) and coordinated a
round table event with a range of airlines to discuss issues they have in common.
Table A.11: Interview status
Stakeholder group
EU air carriers and representative Associations
Non-EU air carriers and representative associations
Consumer and passenger organisations
Airports and representative associations
EU/EEA/CH national enforcement bodies (NEBs)
Alternative dispute resolution bodies
Claim agencies
Other relevant stakeholders and industry associations
Relevant authorities and consumer organisations in
non-EU countries
Total
Face to Face
14
2
2
1
4
2
1
1
4
31
Telephone
4
1
3
2
25
5
1
1
-
42
Interviews
completed
18
3
5
3
29
7
2
2
4
73
January 2020 | 245
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0272.png
Study on the current level of protection of air passenger rights in the EU | Final Report
B Workshop summaries
International workshop
B.1
DG MOVE.B5, with the support of ICAO and Steer, organized an international workshop on air
passenger rights (APR) that took place in Brussels on 14-15 May 2019. The workshop was
looking to share experiences and draw out lessons learned from the implementation of APR in
non-EU countries. Experts from ICAO, the US, Canada, Brazil, Malaysia, Japan, and the Gulf
Region attended together with a representative sample of EU NEBs, consumer/passenger
associations and the industry.
Day 1
B.2
We started the day with a welcome and introduction by DG MOVE Director Herald Ruijters
who explained that Regulation 261/2004 on Air Passenger Rights is a flagship policy of the EU
and that the Commission intends to make sure that it remains so.
After a presentation by Steer on the study that it is conducting in parallel to this international
workshop, Günther Ettl from the Commission provided a summary of the key aspects of
Regulation 261/2004 and the intention of the Commission to be open about changes to the
text, if there is a window of opportunity to do so.
ICAO then explained the general considerations used when it defined in 2015 its Core
Principles on Consumer Protection, such as balance between consumer rights and industry
competitiveness or proportionality. We also heard that ICAO addressed passenger rights
following the journey of passengers, from “before travel”, “during travel” to “after travel” and
were provided with an overview of the database they are maintaining regarding specific
national APR legislation in over 60 countries. ICAO also called for support from workshop
participants and the wider industry so that its website
132
displaying information on air
consumer protection remains up to date.
After the first part of the morning spent on “setting the scene” at European
and worldwide
level, it was time to learn from international experiences and first was Canada. We were
presented an overview of the draft
133
Canadian protection regulation, which sometimes took
inspiration from European legislation such as on delays and cancellation, but also from a blend
of US and EU approach for tarmac delays. A point of interest was the expressed desire of the
Canadian Transportation Agency to try to keep the claim agencies at bay, something that the
European experience indicates may be difficult to achieve in practice.
After Canada we turned to Malaysia, where we heard of the 2016 Aviation Consumer
Protection Code which radically changed the landscape for consumer protection for the 120
million passengers per annum who fly to/from and within Malaysia. The speaker detailed the
preparatory work and consultation that was done before the Code was implemented, and the
132
133
B.3
B.4
B.5
B.6
https://www.icao.int/sustainability/Pages/ConsumerProtectionRules.aspx
Traffic Modernization Act, likely to be adopted on 16/05/2019
January 2020 | 246
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0273.png
Study on the current level of protection of air passenger rights in the EU | Final Report
“cooling-off period” that was provided at first for the airlines. She also mentioned that the
Code includes timelines for resolution (for both airlines and the Authority), specific
consideration to the damage of mobility equipment, opt-in/opt-out clauses as well as very
dynamic policy changes to the Code, something quite unheard of in Europe. It was also
interesting to hear about efforts that are being done to reach out to consumers through
technology as an enabler and the newly develop FlySmart app
134
, as well as the desire to be
transparent and report to all.
B.7
IATA and ACI-Europe presentations followed, providing the audience with the view of the
industry. IATA presented its core industry principles on consumer protection: legal certainty
for airlines (including extra-territorial issues, ambiguous legislation, or consistency with
international rules), commercial freedom, voluntary schemes, proportionality and the crucial
question extraordinary circumstances, and lastly the question of information to passengers.
ACI-Europe followed and explained that whilst airports have no legal requirements under
Regulation 261/2004, they nonetheless have contingency plans in place. ACI regretted that
there were some gaps in the Regulation, namely no foreseen long-term disruptions, no
recognised rights related to baggage and the absence of a requirement for an airline point of
contact at airports, but also a lack of enforcement. It was good to see that airports and airlines
agreed for a change on the issue of connecting flights and the disproportionate economic
burden on smaller airlines. The speaker also provided a useful comparison on the protection of
PRM when travelling by air between the US and Europe, highlighting two big differences: on
pre-notification (US: not required, Europe: required) and on the responsible party for PRM
assistance (US: airlines, Europe: airports).
After a lively Q&A session, it was time to hear from three NEBs: Croatia, Finland and Spain. The
first point mentioned by Croatia was an increase in passenger complaints received by the NEB
of 170% versus an increase in passenger traffic of only 4% in the same year. The speaker
highlighted that no sanctions have been issued in Croatia (yet) because the industry
responded well and proactively. She also mentioned good NEB-NEB cooperation, as well as the
focus of its work to ensure that care and assistance was provided to passengers, something
which she remarked could be challenging to provide during high season in touristic areas. She
also observed an issue with a lack of exchange of information between travel agencies and
airlines, as well as her wish that not too much information is provided to passengers.
One of the three Finnish NEB presented a detailed explanation of the assistance provided by
NEBs in Finland alongside an analysis of what works well in Regulation 261/2004 and what
works less well: in particular she explained that Finnish courts now receive more air passenger
rights claims related to delays than they receive housing disputes and that the Regulation had
actually created a case-by-case approach, the exact opposite of standard compensation it
sought to introduce. The NEB also called for a revised text that can be enforced collectively,
for a compensation reduction tied to the ticket price but with no extraordinary circumstances.
The Spanish NEB explained that it had received 35,000 complaints in 2018 which made some
attendees wonder whether the system will soon be at breaking point if the rate of increase in
complaints carries on at the rate witnessed today. The speaker explained that it decided in
favour of airlines in only 3% of the cases, which raised the question as to how well are airlines
B.8
B.9
B.10
B.11
134
https://flysmart.my/en/flysmart-app/
January 2020 | 247
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0274.png
Study on the current level of protection of air passenger rights in the EU | Final Report
complying with the Regulation and responding to their passengers. As the NEB decisions are
non-binding, the speaker explained that AESA will soon become an ADR.
B.12
Afterwards, participants to the workshop split in three groups, whilst focussing on the
following topics in round-tables:
•
•
•
B.13
Inconsistencies in enforcement;
Claim agencies development and associated issues;
Administrative burden faced by NEBs, airlines and passengers.
Points raised during the short summary of each of the discussion groups included the
following:
•
•
•
The admin burden generated is significant as cases are handled differently in different
jurisdictions and legal support has to be taken on to cover this in each country by airlines;
Claim agency activity is generating a very large number of claims/complaints for airlines
and NEBs (at least those NEBs that do handle individual complaints).
Observation that assessing delay on arrival on a journey basis generates complexity for
NEBs (compared to considering flight-only). NEBs countered this point by pointing out
that it should not be that complex for airlines, since they already have the information on
the passenger journey.
The size of the admin burden vs the size of the compensation cost not readily known,
since it is not captured/reported in such a way as part of regular operations.
Courts in certain countries (e.g. Spain) are inundated by 261 cases.
There exists a burden for passengers also in trying to contact airlines and/or NEBs.
Examples mentioned: broken website links, only telephone numbers available for contact,
no feedback/confirmation of submission, language issues etc.
In the US there exists an obligation for the airline to report individually and in detail on all
long tarmac delays.
Issues on extra-territoriality and the inconsistency of approaches stemming also from
differing definitions used
–
more explicit and detailed definitions of extraordinary
circumstances are required.
A potential lack of knowledge on the way that the compensation system works which may
lead to confusion for passengers.
Compensation levels that may be too high, thus driving the development of ambulance-
chasing
Issues with enforcement powers of NEBs and the different ways of handling complaints
–
also from different interpretations by the courts and NEBs.
An observation of increased levels of automated claim agencies outside the EU and the
role that technological advances will play in the future.
There exists the concept of shared responsibility and reasonable measures in the US with
respect to the interaction between airlines and airports for example.
•
•
•
•
•
•
•
•
•
•
The day closed on a summary of the presentations.
Day 2
B.14
After Steer provided a summary of the previous day discussions, Brazil gave an interesting
presentation, mentioning that the regulator still had a “strong hand”. The speaker explained
the rationale being pressure on the regulator following full liberalisation of the aviation
market in the early 2000s and a subsequent rush to implement consumer protection in the
January 2020 | 248
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0275.png
Study on the current level of protection of air passenger rights in the EU | Final Report
country, with no time to consider an industry voluntary scheme. He also highlighted that the
Brazilian regulator can be sued by justice prosecutors, something which is unheard of in
Europe! In the Brazilian framework, care and assistance need to be provided after 2 hours, and
there are no extraordinary circumstances. The speaker also highlighted that the online dispute
resolution website
135
provided a great tool with 75% passenger satisfaction and an average
resolution time of 7 days. It was clarified that all passenger complaints are directed to this tool
now and that there are some strong incentives for airlines to use it.
B.15
The US Department of Transportation followed Brazil and explained the legal framework it
operates within and the role of its office, from education to enforcement. Again, we heard of a
consumer-friendly website
136
, including a form to report complaints (compatible with mobile
phones), and transparent info, including monthly reports with data on on-time performance
and incidents (“name and shame”). The speaker then detailed the inspections that it carries at
airports but also on-site at airlines headquarters and explained that it is able to investigate
based on media reports or requests from competing airlines. There is no requirement for care
and assistance in the US passenger rights framework, cancellations of flights for commercial
reasons are prohibited whilst airline operational performance (on-time performance, luggage
issues and over sales) is regularly published. DoT focusses a lot on display and communication
of information, as well as on clear display of full-fare rules. It stated that it received 18,000
complaints last year, and had noticed positive outcomes on tarmac delays, increased
transparency of fare advertised, better services to PRMs, and that enforcement is largely
based on negotiations with the airlines.
After a long exchange of Q&As, we listened from BEUC, the voice of European consumers. The
speaker presented the expectations of European air travellers (transparent prices,
effective/enforceable rights, etc.) and compared it to the situation on the ground. She called
for better enforcement of air passenger rights across Europe, less lengthy procedures,
improved access to ADRs, more effective and cheaper channels of communications between
airlines and passengers, an improvement in the protection of passengers with a ticket-only in
the case of airline bankruptcy, automatic compensation, collective actions, dissuasive
sanctions and a ban on airlines “no-shows”.
Afterwards, we heard from FlyDubai on the regimes in place for air passenger rights in the Gulf
(Saudi Arabia and Oman). Saudi rules entered into force in 2016, providing care and assistance
but not opening rights to financial compensation in the case of delays. In the case of
cancellation of flights, the speaker highlighted what seemed to be an inconsistency in rights
granted. In Oman, provisions on care and assistance kick-in after 2 hours and as is the case in
Saudi Arabia, there is no compensation for delays. The list of force majeure events is also
wider than it currently is in Europe. The speaker highlighted that working with only one
regulator per jurisdiction had been beneficial to both airlines and passengers.
United Airlines provided the views of the airlines on the US situation and started by explaining
at high-level how laws are passed in the US, and then presented the passenger protection
framework in place. It quoted a statistic of 0.19 denied boarding per 10.000 passenger. United
also mentioned that as carriers are responsible for PRMs under US law, US airlines operating
to/from Europe are very careful with airports’ provision of PRM assistance
in Europe. The
question of emotional support animals was raised, something which we have not much
B.16
B.17
B.18
135
136
https://www.anac.gov.br/consumidor/copy_of_consumidor/
https://www.transportation.gov/airconsumer
January 2020 | 249
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0276.png
Study on the current level of protection of air passenger rights in the EU | Final Report
experience (yet?) in Europe. The speaker also highlighted that sometimes there can be some
unintended consequences in legislation, such as strict tarmac delay rules resulting in higher
cancellation rates. The speaker finished its presentation by mentioning that no-show policies
are a key part of the airline pricing freedom.
B.19
The following Q&A session immediately picked on the issue of (partial) no-shows and
sequencing of tickets as well as the practicalities of automatic compensation. Elisabeth
Kotthaus from DG MOVE mentioned that in any case the industry needed to explain no-show
rules much better.
The round-table which followed focussed on:
•
•
•
B.21
The simplification of existing processes;
Incentives for change in behaviour by airlines; and
How to reconcile the interests of the passengers and carriers.
B.20
The following issues were covered in the different discussion groups:
•
•
The variety of systems that passengers can use to complain which may create confusion.
Ways to improve the communication that airlines offer as first point of contact for
passengers, including functioning links, working telephone numbers, and accessibility via
mobile phones.
The need for an exhaustive but non-binding list of Extraordinary Circumstances.
Ways internal communication between airlines and regulators can be automated to
ensure a quick complaint handling procedure.
Ways to introduce competition through ranking practices which adds an incentive for
airlines as it gives customers the option to evaluate their performance on providing care
and assistance.
Possibilities and advantages of automated compensation.
Questions around who pays the costs for APR and if it moves back to the consumer
eventually through charges and taxes.
The need to cost out the different aspects of the Regulation and any proposed changes.
Observation that extraordinary circumstances vary from place to another e.g. snow in the
Med vs snow in the Nordics.
Potential opportunity to improve care and assistance provision, by providing information
to passengers in given situations that empowers them to act on their own, knowing the
relevant value limits that have been made available to them. This would avoid having to
queue at airports to speak with a representative dealing with each passenger (or group)
individually. It would be very difficult however to determine the fair value in each
place/time.
Use of technology for communicating with passengers in cases of disruption should be
encouraged (email/text vouchers, directions, guidance etc.).
It was noted that Regulation 261/2004 has been effective in reducing overbooking in the
EU.
Airlines have been driven to be more customer focussed almost as a by-product of having
to 261-related processes in place for handling passenger cases. Consumer experience is
generally seen as having improved, however it is not possible to attribute this to 261 or
the effect of increased competition.
•
•
•
•
•
•
•
•
•
•
•
B.22
As the workshop drew to its close, a summary of the discussions of the day was provided by
Steer and a panel discussion led by Elisabeth Kotthaus allowed attendees to reflect on what
January 2020 | 250
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0277.png
Study on the current level of protection of air passenger rights in the EU | Final Report
had been mentioned over the two days and
what they would “take home”, such as
technological tools to enable better enforcement of rights, obligations for carriers to adhere to
ADR or ODR systems, and a call for ICAO to look into extra-territorial issues.
B.23
Olivier Waldner from DG MOVE provided conclusions after thanking all participants for a
genuine lively, interesting and active workshop. He mentioned that the event had been a good
platform to understand solutions developed across the world and that there was plenty of
innovation going on, before calling for a toolbox to better support air passenger right
protection globally.
Ways forward workshop
B.24
The second workshop took place on Wednesday 12 June 2019 in Brussels. It was a
participatory workshop with selected stakeholders (8 representatives of airlines, 2
representatives of airports, 8 representatives of consumers and 10 representatives of NEBs /
ADRs) and lasted a full day. There were some quick presentations, followed by three
roundtables. The objective of the workshop was to explore potential areas for solutions
compromise between authorities, operational stakeholders and passengers and identify
possible win-win ways forward with respect to the protection of air passenger rights, with a
focus on improving the rules in place and their enforcement.
The objective of this forward-looking workshop was to explore potential areas for solutions
between authorities, operational stakeholders and passengers and identify possible win-win
ways forward with respect to the protection of air passenger rights, with a focus on improving
the rules in place and their enforcement. To facilitate this, the workshop was designed to be
participatory around a discussion format, involving a limited number of attendees (c. 30) with
a balance of representation across stakeholder groups.
Participants were invited to share expert views under Chatham House rules, rather than
representing a specific category of stakeholder.
Three high-level themes were featured as part of the round table discussions during the
workshop:
•
•
•
B.28
B.29
Theme 1: Main aspects of a more balanced APR framework and areas for convergence
between various interests.
Theme 2: Improved implementation of the APR regulatory framework and possible
improvements to NEB organisational models to support the enforcement of APR.
Theme 3: Definition and assessment of extraordinary circumstances.
B.25
B.26
B.27
Theme 1. Main aspects of a
more balanced APR framework
and areas for convergence
between various interests
Some
key concerns
were identified in advance of the workshop with respect to air passenger
rights for passengers, airlines and NEBs. Areas in which alignment could be found between
different parties’ views are highlighted in the figure below. Participants confirmed these
during the workshop and discussed further areas in which there is alignment, and areas in
which alignment does not exist.
January 2020 | 251
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0278.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure B.1: Areas of alignment among stakeholders
Airlines
•
Legal clarity and certainty, including
on the application of extraordinary
circumstances and reactionary
delays, reasonable measures,
the right to redress, statute
of limitations.
•
Proliferation of claim agencies and
court cases. Obligation for
passengers to first contact airlines
directly.
•
Increased time thresholds and
compensation amounts linked to
fare.
•
Limits to the provision of
care and assistance.
•
Sequential use of
tickets.
Passengers
•
Harmonisation and strengthening of
NEB powers (including higher sanctions)
and improved NEB cooperation.
•
Better communication between airlines
and passengers, including the reasons
for travel disruption being published.
•
Obligation for airlines to participate in
ADR schemes and adhere to their
decisions.
•
Legal clarity, incl. on
extraordinary circumstances
•
Simplification of APR regime
•
Better airline claim handling procedures
(incl. deadlines) and/or
automatic/automated reimbursement
and compensation.
•
Mandatory guarantee
scheme to protect
passengers in cases of
airline insolvency.
•
Provision of suitable
information to passengers
•
Improved transparency
•
Provision of suitable care and
assistance at time of incident
•
Improved claim handling
•
Quality of services
•
Full ban of
no-show
clauses.
•
Legal clarity and certainty, incl. on the definition of extraordinary circumstances,
reactionary delays, reasonable measures, scope, double compensation.
•
Harmonisation of complaint handling powers across NEBs and definition of
complaint handling process (pax to contact airline first, then NEB/ADR).
•
Requirement for claim agencies to inform passengers that they can
address the NEB/ADR for free.
•
Clarification of the role of NEBs and ADRs.
•
Enforcement and application of sanctions for
carriers registered in other Member States
and in non-EU countries.
NEBs
Source: Steer
B.30
Further areas of agreement that emerged from the round-table discussions between the three
stakeholder groups included:
•
•
Improvements in assistance at the time of the incident;
Ideas and practical points to ensure that passengers are better and more proactively
informed by airlines. The issue of the lack of passenger contact details when they have
booked through an intermediary (such as travel agent, tour operator, etc) was raised. The
question of PRMs having to proactively notify the airline after the booking rather than
during the booking was also mentioned;
On no-shows, whilst there is evident disagreement on the policy itself, there was
agreement that passengers should be better informed by airlines about them, rather than
being completely hidden in the middle of terms and conditions;
Discussions on re-routing lead to the idea of a trade-off consisting of requiring airlines to
re-route passengers faster for a decrease or cancellation of the compensation
requirement;
•
•
January 2020 | 252
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0279.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
•
B.31
B.32
Every group at some point during the say also wondered by NEB or ADR decisions were
not binding;
The question of time limits or deadlines for airlines (and NEBs) to respond to passengers
was also something where there was some agreement.
Theme 2. Improved implementation of the APR regulatory framework and possible
improvements to NEB organisational models to support the enforcement of APR
The second roundtable focussed on the use of technology in APR. It was clear that there are
some ideas as to how technology can help to smoothen the service between airlines and
passengers (noting that technology cannot be used for everything and that a human touch is
necessary too). It was less clear if there is much scope for technology solutions to be
implemented between airlines and NEBs, as although there is willingness, it is not clear how
such systems would be financed and what their governance would look like. The most
interesting gains that can be expected through technology appear to be in the area of care and
assistance (for instance through automated vouchers) or compensation and claim handling. It
was less clear to stakeholders of the benefits on re-routing, since individual passenger
preferences usually need to be accommodated, whilst a point was made on the cost of
technology for small airlines. What was also discussed was the possible split between
enforcement and claim handing but there was no agreement on this point.
Theme 3. Definition and assessment of extraordinary circumstances
Bearing in mind the 2013 list of extraordinary circumstances included in the Annex of the
Commission Proposal for the revision of Regulation 261/2004 (see box below), and
acknowledging that the 2015 van der Lans and other rulings mean that this list does not
necessarily reflect current interpretation perfectly, participants discussed how such a list might
work and what clarity it would offer in practice.
Figure B.2: 2013 list of extraordinary circumstances included in the Annex of the Commission Proposal for the
revision of Regulation 261/2004
B.33
Non-exhaustive list of circumstances considered as extraordinary circumstances for
the purposes of this Regulation
1. The following circumstances shall be considered as extraordinary:
i. natural disasters rendering impossible the safe operation of the flight;
ii. technical problems which are not inherent in the normal operation of the
aircraft, such as the identification of a defect during the flight operation concerned
and which prevents the normal continuation of the operation; or a hidden
manufacturing defect revealed by the manufacturer or a competent authority and
which impinges on flight safety;
iii. security risks, acts of sabotage or terrorism rendering impossible the safe
operation of the flight;
iv. life-threatening health risks or medical emergencies necessitating the
interruption or deviation of the flight concerned;
v. air traffic management restrictions or closure of airspace or an airport;
vi. meteorological conditions incompatible with flight safety; and
vii. labour disputes at the operating air carrier or at essential service providers such
as airports and Air Navigation Service Providers.
2. The following circumstances shall not be considered as extraordinary:
January 2020 | 253
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0280.png
Study on the current level of protection of air passenger rights in the EU | Final Report
i. technical problems inherent in the normal operation of the aircraft, such as a
problem identified during the routine maintenance or during the pre-flight check of
the aircraft or which arises due to failure to correctly carry out such maintenance or
pre-flight check; and
ii. unavailability of flight crew or cabin crew (unless caused by labour disputes).
Source: COM(2013) 130 final
B.34
This was recognised as being a complicated issue and one where the definition as to what is
“extraordinary” for an airline varies quite significantly from what is “extraordinary” for
passenger representatives. A list might be welcome but will certainly not close the debate
once and for all as there will still be situations where interpretation will not be definitive. The
question of how often such a list it would be updated and by who was also mentioned. An
alternative that was discussed was not to have a list of extraordinary circumstances at all, in
order to avoid the need for case-by-case review, but instead a strict liability regime with lower
compensation amounts.
January 2020 | 254
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0281.png
Study on the current level of protection of air passenger rights in the EU | Final Report
C Cost of air passenger rights
implementation
Cost assumptions
C.1
The analysis of airline costs at industry-level has been developed top down, as Steer
anticipated that it would not been able to obtain comprehensive airline cost data for all years.
We have therefore used estimates and made assumptions. However, the analysis has been
cross-checked with cost data received from eight EU airlines, covering a range of large,
medium and small network airlines, as well as low-cost and charter airlines, accounting for
25% of passengers in-scope of Regulation 261/2004 in 2018.
Care and assistance
C.2
The care and assistance cost assumptions used in our assessment are shown in the table
below. These have been categorised into:
•
•
•
•
•
C.3
Refreshments (i.e. food and drink when delayed);
Subsistence (i.e. food and drink for overnight stays in the case of long delays or
cancellations);
Accommodation, (i.e. the cost of hotel accommodation);
Transportation costs (i.e. taxis) used to get to and from accommodation; and
Communication costs (via phone or email).
Our estimates for each of these costs are based on a combination of our previous study
(updated to current price levels), our own research and information provided by airlines.
These costs are incurred by airlines for all passengers on delayed departing flights and
cancelled flights. The cost estimates shown below are for 2018, which have been deflated for
preceding years using the relevant Eurostat HCIP index.
Table C.1: Care and assistance cost assumptions (2018)
Type of care & assistance
Cost of care & assistance
Refreshments
Overnight subsistence
Accommodation
Transport
Communication
Departure delay
> 2 Hours
> 3 Hours
€10.00
> 4 Hours
€13.00
> 5 Hours
€18.00
€50.00
-
-
-
€157.00
€30.00
€3.50
100%
-
100%
-
100%
-
100%
20%
Cancellation
€7.00
€18.00
€50.00
€157.00
€30.00
€3.50
30%
20%
Proportion of passengers requiring
Refreshments
Overnight subsistence
January 2020 | 255
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0282.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Accommodation
Transport
Communication
Source: Steer estimates
20%
20%
5%
5%
5%
5%
20%
20%
5%
C.4
The refreshments are given to delayed passengers, as stipulated in the Regulation, in
‘reasonable relation’ to the length of the delay and therefore increase with the length of the
delay. Delays of over 5 hours, and cancellations, are assumed to incur significantly more costs,
as passengers will require one or more proper meals. Refreshments are also assumed to be
required by delayed passengers in all cases.
Care and assistance are only assumed to be required by passengers on cancelled flights in 20%
of cases (30% for refreshments) as, as has been discussed in Chapter 3, cancellations can take
places up to two weeks prior to the scheduled departure time, which means many passengers
will not require overnight assistance. Similarly, in the case of delays over five hours, only 20%
of passengers are assumed to require overnight assistance, as most delays of over five hours
are not of a sufficient length to require overnight assistance or are during the day.
Under the current situation (Scenario 3), total care and assistance costs are relatively sensitive
to the assumption of 20% of cancelled and long delayed passengers requiring overnight care
and assistance; an assumption of 50% (of such passengers requiring care and assistance)
means total care costs more than double between 2011 and 2018, and an assumption of 5%
means total care costs are less than half, relative to an assumption of 20%. However, given
care costs’ share of total airline costs, total airline 261 cost do not change by more than 20%.
Communication assistance is only assumed to be required by 5% of passengers, as the vast
majority of passengers are able to use their mobile phones to communicate at little extra cost.
Due to low cost of communication, total care and assistance cost are not sensitive to this
assumption; even if all (100%) passengers required communication assistance, total care costs
would increase by less than 10% between 2011 and 2018, relative to an assumption of 5%.
Reimbursement and re-routing
C.5
C.6
C.7
C.8
The reimbursement and re-routing assumptions used in our assessment are shown in the table
below. Our estimates for each of these costs are based on a combination of our previous
study, information provided by airlines and OAG average fares data. These costs are incurred
by airlines for all passengers on eligible delayed departing flights and cancelled flights. The
cost estimates shown below are for 2018, but average data has also been collected for all
preceding years.
Table C.1: Reimbursement and re-routing cost assumptions (2018)
Distance
> 3,500 km
1,500-3,500 km
< 1,500 km
Reimbursement
€447
€126
€113
25%
25%
Re-routing (Same Airline)
€45
€13
€11
40%
65%
Re-routing (Different Airline)
€595
€168
€150
35%
10%
Cost of reimbursement and re-routing (one-way costs)
Proportion of passengers
Scenario 1 & 2
Scenario 3 & 4
January 2020 | 256
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0283.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Source: Steer
C.9
The reimbursement costs for each flight distance band are assumed to be the average price of
a fare for each respective distance. Reimbursements are paid to passengers delayed over five
hours and offered to passengers with a cancelled flight, which is assumed to be chosen by
passengers in 25% of cases, with a re-routing chosen in the remaining 75% of cases. Under the
current situation (Scenario 3), total reimbursement and re-routing costs are not particularly
sensitive to this assumption, assuming all passengers (100%) or 50% choose a re-routing total
means reimbursement and re-routing costs change by less than 20% (and total airline 261 cost
change by under 10%) relative to the current 75% assumption.
Airlines are assumed to incur fewer costs when passengers
are rerouted on one of the airline’s
own flights, which is preferable for the airline and therefore happens in 65% of cases under
the current situation. Some costs will be incurred in such cases because, for example,
passengers may be rerouted to an airport different to their original destination and will need
to be reimbursed for any additional ground transportation expenses.
In 10% of cases, under the current situation, when an airline has none of its own seats
available on a given route, passengers are rerouted on a different airline, which, in many
cases, is with a partner airline or an airline with which it possesses a reciprocal agreement.
Many airlines have such agreements, through either alliances or IATA, that capacity on partner
airlines’ aircraft
can be purchased at (or close to) the rate of the original passenger fare. We
have assumed that two thirds of all airlines operating in the EU+3 have such agreements, and
therefore in a third of cases, the cost of re-routing for airlines is double the cost of the original
fare (and is the same price in two thirds of cases).
Under Scenario 1 and Scenario 2, when airlines are fully compliant with the Regulation, we
have assumed passengers are rerouted on other airlines in 35% of cases (and on the same
airline in 40% of cases).
Compensation
C.10
C.11
C.12
C.13
The assumed level of compensation provided to passengers is as set out in the Regulation and
is shown in the table below. These levels of compensation are paid to all passengers on a flight
with the specified amounts of arrival delay, when the delay is assessed to be within the control
of the airline (i.e. when there are no extraordinary circumstances).
Table C.2: Compensation cost assumptions (2018)
Distance (km)
< 1,500
> 1,500
(Intra-EU)
1,500 to 3,500
(Extra-EU)
> 3,500 (Extra-EU)
Arrival delay
> 2 Hours
-
> 3 Hours
€250
> 4 Hours
€250
> 5 Hours
€250
Cancellation entitlement
€250
(<2 Hrs. 50% of entitlement)
€400
(<3 Hrs. 50% of entitlement)
€600
(<4 Hrs. 50% of entitlement))
-
€400
€400
€400
-
€300
€600
€600
Source: Regulation 261/2004
January 2020 | 257
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0284.png
Study on the current level of protection of air passenger rights in the EU | Final Report
C.14
We have assumed that passengers who receive compensation for cancelled flights are re-
routed to their destination within the timeframes specified in the table above, for each of the
three distance bands, in 50% of cases. This means that for 50% of passengers who receive
compensation for cancelled flights, the level of compensation is reduced by 50%. Under the
current situation (Scenario 3), airlines’ total compensation costs are relatively sensitive to this
assumption, compared to using an assumption of 50%, total airline compensation costs
change by approximately 30% when using an assumption of 0% or 100%. However, the impact
on airlines’ total 261 costs, compared to the used assumption of 50%, is less than 10%
Denied boarding
C.15
As specified in the regulation, the compensation provided to passengers who voluntarily
surrender their seat are
based on ‘conditions to be agreed between the passenger concerned
and the operating air carrier’. We have therefore assumed such passengers are offered 50% of
their original fare, where the level of fares is equivalent to those used for reimbursement (see
table above).
Given the low number of passengers that are denied boarding (compared to those on delayed
or cancelled flight), under the current situation, airlines’ reimbursement costs are not sensitive
to this assumption. Relative to the assumption of 50%, assuming passengers that are
voluntarily denied boarding receive either 25% or 100% of their original fare does not change
airlines’ total reimbursement costs by more than 1%.
Passengers who are denied boarding involuntarily have the same rights as passengers with a
cancelled flight, which are set out above.
Downgrading
C.16
C.17
C.18
As discussed above, passengers are only assumed to be downgraded on extra-EU flights over
>3,500km. Based on OAG business class average fares data, passenger fares for extra-EU non-
economy
flights are assumed to be €2,208. The Regulation stipulates that passengers who are
downgraded on extra-EU flights over 3,500km will receive a 75% fare reimbursement, which
we have assumed is equivalent to €1,656.
Mishandled baggage
C.19
Airlines that mishandle
passengers’ baggage are liable for delay, loss or damage of baggage up
to 1,000 Special Drawing Rights
137
(SDRs)
– currently equivalent to approximately €1,200.
Based on our information provided by airlines, we have assumed that compensation is paid by
airlines in 2018 (deflated for preceding years) for each instance of mishandled baggage as
follows:
•
•
•
Lost/stolen: €845;
Damaged: €210; and
Delayed: €105.
137
A form of international money, created by the International Monetary Fund, and defined as a
weighted average of various convertible currencies.
January 2020 | 258
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0285.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline costs based on 100% claim rates and full airline compliance
(Scenario 1)
Scenario description
C.20
Scenario 1 assumes all passengers eligible for compensation claim it (i.e. a 100% claim rate)
and passengers make baggage-related complaints for all instances of mishandled baggage.
Scenario 1 also assumes full compliance by airlines with Regulation 261/2004 and the
Montreal Convention, which means compensation, care, reimbursement, re-routing and
mishandled baggage costs are paid to all passengers entitled to them (and re-routing on a
competitor airline is offered where necessary). Scenario 1 therefore represents the theoretical
maximum cost liability for airlines.
Cancellation costs
C.21
The total care, compensation and reimbursement/routing costs liability owed by airlines to
passengers is shown in the table and figure below.
Table C.3: Scenario 1
–
Cancellation costs for airlines
€ million
Compensation
Care
Reimbursement/ Re-routing
Total
Source: Steer estimates
2011
933
337
706
1,976
2012
1,369
396
828
2,592
2013
1,686
515
1,029
3,230
2014
976
326
641
1,943
2015
1,200
378
776
2,354
2016
1,465
513
1,002
2,980
2017
1,712
679
1,319
3,710
2018
2,541
932
1,850
5,323
C.22
Although it is paid for all flight cancellations, care costs account for around 17% of all airline
costs, while reimbursement/routing costs and compensation costs account for around 50%
and 33% respectively. Compensation costs account for a larger share of total costs as,
although they paid only when cancellations are airline-attributable (around 70% of cases), the
cost per passenger is significantly higher.
Figure C.1: Scenario 1
–
Cancellation costs for airlines:
January 2020 | 259
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0286.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Source: Steer analysis of airline and UK CAA data
Delay costs
C.23
The total care, compensation and reimbursement/re-routing costs liability owed by airlines to
passengers is shown in the table and figure below.
Table C.4: Scenario 1
–
Delay costs for airlines
€ million
Compensation
Care
Reimbursement/ Re-routing
Total
2011
1,040
125
315
1,481
2012
1,056
126
320
1,501
2013
1,189
152
338
1,679
2014
1,041
140
330
1,512
2015
1,025
146
300
1,471
2016
1,036
170
308
1,513
2017
1,141
205
411
1,757
2018
1,546
260
430
2,236
Source: Steer analysis of CODA and airline data
Figure C.2: Scenario 1
–
Delay costs for airlines
Source: CODA, Steer analysis
C.24
Although compensation is only paid when airlines are deemed to be at fault for the delay,
compensation costs account for around 70% of total costs throughout the period. However, on
average, care costs are significantly lower for airlines in the case of delays (compared to
cancellations) and reimbursements are only paid for delays over 5 hours.
Denied boarding & downgrading costs
C.25
The total cost liability owed by airlines associated with the number of passengers downgraded
and denied boarding are shown in the table below. Downgraded passengers are assumed to
be provided with the stipulated level of reimbursement in all cases.
January 2020 | 260
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0287.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table C.5: Scenario 1
–
Downgraded and denied boarding costs for airlines
€ million
Downgraded passengers
Compensation
Denied
boarding
Care
Reimbursement/
Re-routing
2011
86
170
32
68
2012
95
178
34
72
2013
94
189
37
73
2014
126
205
40
77
2015
113
222
44
82
2016
120
235
48
81
2017
113
270
56
99
2018
122
380
81
137
Source: Steer analysis of airline data
C.26
As a greater number of passengers are affected, and their compensation, care and
reimbursement entitlements are greater, involuntary denied boarding cost are significantly
larger than both voluntary denied boarding costs and downgrading costs. Although a greater
number of passengers are affected by voluntary denied boarding in comparison to
downgrading, the high costs of non-economy tickets means downgrading costs are greater.
Figure C.3: Scenario 1
–
Denied boarding and downgrading costs for airlines
Source: Steer analysis of airline data
Mishandled baggage costs
C.27
The total cost for airlines associated with instances of mishandled baggage is shown in the
table and figure below.
January 2020 | 261
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0288.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table C.6: Scenario 1
–
Mishandled baggage costs for airlines
€ million
Lost/Stolen
Damaged
Delayed
Total
2011
280
222
540
1,041
2012
265
210
511
986
2013
172
202
529
902
2014
306
243
591
1,140
2015
296
235
571
1,102
2016
429
245
590
1,265
2017
322
274
628
1,224
2018
272
245
524
1,041
Source: Steer analysis of SITA and airline data
Figure C.4: Scenario 1
–
Mishandled baggage costs for airlines
Source: Steer analysis of SITA and airline data
C.28
Given the average cost for airlines for each type of mishandled baggage incident, the costs for
airlines are more equally split, although delayed baggage still accounted for the majority. The
total costs fluctuate throughout the period, reflecting a combination of a reduction in the
number of instances of mishandled baggage and increasing numbers of passengers (and
therefore items of baggage).
Total costs
C.29
The total cost for airlines under Scenario 1 arising from the disruption described above are
shown in the table and figure below.
Table C.7: Scenario 1 total costs
€ million
Compensation
Care
Reimbursement/ Re-routing
Mishandled baggage
Total
2011
2,144
494
1,176
1,041
4,855
2012
2,603
555
1,315
986
5,460
2013
3,064
704
1,535
902
6,205
2014
2,223
507
1,175
1,140
5,044
2015
2,447
569
1,271
1,102
5,389
2016
2,736
731
1,511
1,265
6,242
2017
3,122
940
1,941
1,224
7,228
2018
4,467
1,273
2,539
1,041
9,320
January 2020 | 262
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0289.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Source: Steer analysis of CODA and airline data
Figure C.5: Scenario 1 total costs
Source: Steer analysis of CODA and airline data
C.30
Driven by a combination of increasing traffic and increasing disruption, total costs have
increased from €4.9 billion in 2011 to €9.3 billion in 2018. Roughly
half of these costs are
comprised of compensation costs, which reach €4.5 billion in 2018 –
more than double the
2018 total compensation costs under Scenario 3.
Although they are provided to all passengers affected by disruption (unlike compensation,
which is only provided in cases of airline-attributable disruption) care and the choice between
reimbursement and re-routing make up a smaller share of costs due the smaller cost per
passenger compared to compensation. Care and reimbursement and re-routing respectively
make up approximately €1.3 billion and €2.5 billion in 2018, with mishandled baggage
repayments accounting for around €1 billion of costs.
C.31
Airline costs based on current actual claim rates and full airline
compliance (Scenario 2)
Scenario Description
C.32
Regulation 261/2004 requires that passengers have to submit a claim in order to receive
compensation, if due. Scenario 2 assumes full airline regulatory compliance (as in Scenario 1),
but passenger claim rates (and baggage-related complaints) are assumed to be at the level
observed under the current situation (Scenario 3, see below).
As described in Chapter 2 (paragraph 2.74), due to the way that claims are recorded by
airlines, we estimated a
“successful claim rate” that describes the proportion of eligible
passengers who actually received compensation and generated an actual cost of
compensation for airlines. The successful claim rates assumed are shown in the table below. A
level of compliance (below 100%) is implicit in these claim rates.
C.33
January 2020 | 263
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0290.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table C.8: Passenger successful claim rates
Disruption type
Delays
Cancellations
Denied Boarding
Mishandled Baggage
2011
10.0%
5.0%
6.0%
7.7%
2012
14.3%
5.8%
8.1%
9.4%
2013
16.5%
7.1%
9.5%
12.3%
2014
20.2%
7.8%
11.2%
13.0%
2015
29.5%
10.0%
15.9%
17.9%
2016
39.9%
11.6%
20.7%
18.2%
2017
42.5%
15.0%
23.1%
22.4%
2018
58.0%
17.6%
30.4%
29.0%
Source: Steer analysis of airline and claim agency data
C.34
As also described in Chapter 2 (paragraph 2.85), airlines are not fully compliant with the
obligation to pay compensation for eligible claims or to offer care and assistance to all eligible
passengers in all qualifying situations. The level of compliance assumed is shown in the table
below.
Table C.9: Airline compliance rates
Entitlement type
Compensation
138
Care
139
Reimbursement/Re-routing
140
Mishandled Baggage
141
2011
68%
63%
100%
100%
2012
70%
64%
100%
100%
2013
73%
65%
100%
100%
2014
75%
67%
100%
100%
2015
78%
68%
100%
100%
2016
80%
69%
100%
100%
2017
83%
70%
100%
100%
2018
85%
71%
100%
100%
Source: Steer analysis of airline, NEB, CODA, OAG and Which data
C.35
When passengers require a re-routing, and the next available flight is with a competitor
airline, airlines are assumed to re-route passengers with a competitor airline in a third of
cases.
To calculate the total costs for airlines under Scenario 2, the above compliance rates are
“reversed” from the successful claim rates and the actual costs of provision of care and
assistance to provide the results shown below for the theoretical situation where airlines
would be fully compliant.
Total costs
C.36
C.37
The total costs for airlines under Scenario 2 are shown in the table and figure below.
Table C.10: Scenario 2 total costs
€ million
Compensation
Care
Reimbursement/ Re-routing
2011
376
494
1,661
2012
571
555
1,883
2013
739
704
2,241
2014
569
507
1,615
2015
834
569
1,804
2016
1,178
731
2,198
2017
1,459
940
2,846
2018
2,629
1,273
3,809
138
139
140
141
See paragraphs 2.87-2.90
See paragraphs 2.92-2.93
See paragraphs 2.94-2.95
See paragraph 2.102
January 2020 | 264
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0291.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Mishandled baggage
Total
81
2,612
92
3,101
111
3,795
148
2,837
197
3,403
230
4,336
274
5,520
302
8,012
Source: Steer analysis of CODA and airline data
Figure C.6: Scenario 2 total costs
Source: Steer analysis of CODA and airline data
C.38
Driven by a combination of increasing traffic, increasing disruption and an increasing claim
rate, total costs have increased from €2.6 billion in 2011 to €8.0 billion in 2018. Relative to
Scenario 1, due the increasing passenger claim rate, total costs have increased from 54% of
the Scenario 1 level in 2011 to 86% in 2018. Due to a claim rate of less than 100%,
compensation costs also account for a smaller proportion of total costs, increasing from 14%
to 33% over the period.
Airline costs based on current actual claim rates and actual airline
compliance (Scenario 3)
Scenario description
C.39
Scenario 3 assumes the passenger successful claim rates under the current situation (in which
actual compliance levels are implicit), the actual level of airline costs for the provision of care
and assistance and full compliance with reimbursement and re-routing obligations (i.e.
passengers do eventually reach their destination or get their money back - when passengers
require a re-routing, and the next available flight is with a competitor airline, airlines are
assumed to reroute passengers with a competitor airline in a third of cases). Airlines are
assumed to be compliant with reimbursing claims for mishandled baggage.
Total costs
C.40
The total costs for airlines under Scenario 3 are shown in the table and figure below.
January 2020 | 265
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0292.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table C.11: Scenario 3 total costs
€ million
Compensation
Care
Reimbursement/ Re-routing
Mishandled baggage
Total
2011
267
324
889
81
1,560
2012
412
369
978
92
1,851
2013
547
473
1,116
111
2,247
2014
437
351
914
148
1,849
2015
657
400
956
197
2,209
2016
954
519
1,103
230
2,805
2017
1,217
677
1,404
274
3,572
2018
2,258
932
1,787
302
5,279
Source: Steer analysis of CODA and airline data
Figure C.7: Scenario 3 total costs
Source: Steer analysis of CODA and airline data
C.41
Driven by a combination of increasing traffic, increasing disruption, an increasing claim rate
and increasing airline compliance, total costs have increased from €1.6 billion in 2011 to €5.3
billion in 2018. Relative to Scenario 2, due the increasing airline compliance, total costs have
increased from 60% of the Scenario 2 level in 2011 to 66% in 2018 (and from 32% to 57% of
the Scenario 1 level). The distribution of total costs across the four cost types remains at a
similar level to Scenario 2, with compensation costs accounting for between 17% to 43%
across the period.
Airline costs in the absence of EU legislation (Scenario 4)
Scenario description
C.42
Under Scenario 4, we have made assumptions in relation to airline policies in the absence of
Regulation 2004/2014. The assumptions we have we used for each type of disruption are set
out below.
January 2020 | 266
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0293.png
Study on the current level of protection of air passenger rights in the EU | Final Report
C.43
Note mishandled baggage has not been included in the description below, as passengers’
rights in relation to this are governed by the Montreal Convention and would therefore remain
unchanged in the absence of Regulation 261/2004.
Cancellations
C.44
If a flight is cancelled for reasons that the airline defines as being within its control (i.e. airline-
attributed cancellations), it offers the passenger a choice of:
•
•
A re-routing on the same carrier subject to availability; or
A reimbursement of the original fare (or part fare for connecting flights).
C.45
C.46
The airline also provides a voucher for care and pay for overnight accommodation where
necessary (or reimburse reasonable costs).
For cancellations outside the airline’s
control (i.e. non-airline-attributed cancellations), the
airline provides either re-routing or a fare reimbursement, but it is at its discretion which of
these was provided. There is no payment for care or accommodation.
The carrier has no further obligation except as otherwise provided by the Montreal
Convention, and therefore in most circumstances no compensation is payable. Therefore, no
compensation is paid to passengers.
Delays
C.47
C.48
If the airline fails to operate a flight within 5 hours of the schedule, for reasons that it defines
as being within its control (i.e. airline-attributed delays), it offers the passenger a fare
reimbursement (or part fare for connecting flights) if they do not wish to travel.
The airline also provides a voucher for care and pay for overnight accommodation where
necessary (or reimburse reasonable costs).
For delays outside the airline’s control (i.e. non-airline-attributed
delays), there is no option of
a fare reimbursement, and no payment for care or accommodation.
The carrier has no further obligation except as otherwise provided by the Montreal
Convention, and therefore in most circumstances no compensation is payable. Therefore, no
compensation is paid to passengers.
Denied boarding
C.49
C.50
C.51
C.52
If a flight is overbooked, the airline first seeks volunteers, who are offered incentives according
to airline policy; assumed to include a refund or re-routing, plus compensation equivalent to
50% of the ticket price.
For passengers denied boarding involuntarily, the airline offers the passengers a choice of:
•
•
A re-routing on the same carrier subject to availability; or
A reimbursement of the original fare (or part fare for connecting flights).
C.53
C.54
In addition, the airline provides compensation up to the amount paid for the original fare. The
airline also provides a voucher for care and pay for overnight accommodation where
necessary (or reimburse reasonable costs).
The carrier has no further obligation except as otherwise provided by the Montreal
Convention, and therefore in most circumstances no other compensation is payable.
Therefore, no compensation is paid to passengers.
C.55
January 2020 | 267
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0294.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Downgrading
C.56
For downgrading within the carrier’s control (i.e. airline-attributed),
affected passengers are
offered the choice of:
•
•
C.57
C.58
A re-routing in the original class on the same carrier subject to availability; or
A fare reimbursement of the difference in fare between the original class and the
downgraded class.
Where downgrading is for reasons which the airline determines as being outside the its
control (i.e. non-airline-attributed),
the choice between these are at the carrier’s discretion.
No voucher for care or overnight accommodation is offered.
Airline compliance
C.59
In 2011, airline compliance with care obligations is assumed to be 21% (as in Scenario 3) but in
following years is assumed to increase at half the rate of Scenario 3, reflecting the fact that
airlines’ provision of passenger entitlements is likely to be lower in a situation with no
passenger rights legislation. Compliance with reimbursement is assumed to be 95% across the
period (as in Scenario 3) and compliance with compensation is not included as no
compensation is paid under Scenario 4.
Total costs
C.60
The total costs for airlines under Scenario 4 are shown in the table and figure below.
Table C.12: Scenario 4 total costs
€ million
Compensation
Care
Reimbursement/ Re-routing
Mishandled baggage
Total
2011
-
210
829
81
1,119
2012
-
279
920
92
1,292
2013
-
352
1,059
111
1,522
2014
-
245
838
148
1,231
2015
-
291
888
197
1,376
2016
-
349
1,002
230
1,580
2017
-
427
1,216
274
1,917
2018
-
633
1,650
302
2,584
Source: Steer analysis of CODA and airline data
January 2020 | 268
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0295.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure C.8: Scenario 4 total costs
Source: Steer analysis of CODA and airline data
C.61
Driven by a combination of increasing traffic, increasing disruption and increasing airline
compliance, total costs have increased from €1.1 billion in 2011 to €2.6 billion in 2018.
Relative to Scenario 3 (i.e. the current situation), total costs have fallen from 72% of the
Scenario 3 level in 2011 to 49% in 2018 (due to increasing airline compliance and passenger
claims under Scenario 3)
–
the total Scenario 4 costs are between 20% and 30% of the Scenario
1 level (i.e. the theoretical maximum airline cost) across the period. As no compensation costs
are paid under Scenario 4, total costs are comprised predominately of reimbursement and
retouring costs, which account for approximately 65% to 75% over the period.
Incremental cost of APR implementation for airlines
C.62
In terms of the scenarios we have specified within our analysis, the
incremental
costs for
airlines result from the increment of Scenario 3 (the current situation) relative to Scenario 4
(no EU-wide legislation). The
incremental
costs for airlines under Scenario 3 are shown in
table and figure below.
Table C.13: Scenario 3 incremental costs
€ million
Compensation
Care
Reimbursement/Re-routing
Mishandled baggage
Total
2011
267
114
59
-
440
2012
412
90
57
-
559
2013
547
121
57
-
724
2014
437
105
76
-
618
2015
657
109
68
-
833
2016
954
170
101
-
1,225
2017
1,217
250
188
-
1,655
2018
2,258
299
137
-
2,695
Source: Steer analysis of CODA and airline data
January 2020 | 269
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0296.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure C.9: Scenario 3 incremental costs
Source: Steer analysis of CODA and airline data
C.63
Compensation costs accounted for the vast majority of airlines’
incremental
costs under
Scenario 3: between 2011 (€0.3 billion) and 2018 (€2.3 billion), compensation paid
represented between 60% and 85% of the total Scenario 3
incremental
costs. The large
incremental compensation costs are due to the fact that, under Scenario 4, airlines are
assumed not to provide compensation to passengers for delays, cancellations or denied
boarding.
In the absence of APR legislation (Scenario 4), airlines are assumed to provide care and the
choice between reimbursement or re-routing in cases where disruption is within their control
(i.e. airline-attributed disruption). In the current situation (Scenario 3), these entitlements are
provided to passengers in all cases of disruption (i.e. within and outside the control of airlines).
As a result, the
incremental
costs of care (€299 million in 2018), and reimbursements and
re-
routing
(€137 million in 2018) are small compared to the
incremental
cost of compensation.
The
incremental
costs under Scenario 3 relative to Scenario 4 (no regulation) and Scenario 1
(100% passenger claim rate and airline compliance) are based on our analysis of airline data,
which has been used to derive the current passenger claim rate and airline compliance rate,
and how these have developed between 2011 and 2018. The
incremental
compensation costs
shown in the figure above have increased significantly over the period shown due to the
combined increase in the proportion of passengers entitled to compensation who actually
claim it and improved regulatory compliance by airlines.
Our estimate for the actual
incremental
costs for airlines (Scenario 3), relative to the
theoretical maximum cost (Scenario 1) and the theoretical cost in the absence of EU legislation
(Scenario 4) are shown in the figure below.
C.64
C.65
C.66
January 2020 | 270
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0297.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure C.10: Scenario 1, 3 and 4 costs
Source: Steer analysis of CODA and airline data
C.67
Based on current passenger claim rates and airline compliance, we estimate that actual total
airline costs under Scenario 3 are roughly double the costs under a no legislation scenario
(Scenario 4). Scenario 3 actual costs are a little over half of the theoretical maximum total
costs under Scenario 1 (if all eligible passengers were to claim compensation and airlines were
to fully comply with the Regulation).
January 2020 | 271
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0298.png
Study on the current level of protection of air passenger rights in the EU | Final Report
D Right to redress overview
Right to redress
–
legislative process
D.1
A right to redress for air carriers was debated during both the ordinary legislative procedures
leading to the enactment of the Regulation and the Commission's 2013 proposal for
amendments to the Regulation
142
. However, Art.13 as enacted does not contain provisions
through which air carriers can recover costs from third parties; the Commission's subsequent
efforts to revise the Regulation have ultimately stalled on account of political differences
between the UK and Spain in relation to sovereignty over Gibraltar.
As regards the current Regulation, the European Parliament's opinion on first reading
proposed that Art.13 of the (then draft) Regulation be amended such that EU Member States
would be obliged to ensure the availability and enforceability of third-party recovery rights for
air carriers, including against States and authorities with sovereign powers. The Council's
Common Position of 18 March 2003 rejected that language, with the Parliament subsequently
proposing language in its opinion on second reading, which omitted the reference to States
and entities with sovereign powers. The Parliament's revised language was nevertheless
rejected by a subsequent Commission opinion on the basis that such express rights of redress
fell outside the scope of the proposal and omitted from the Regulation as enacted. The Table
below (Table E.1) provides further detail regarding the drafting history.
Table D.1: Right to redress
–
legislative history
143
Stage of ordinary legislative
procedure
Adoption by European Commission
(21/12/2001)
EP Opinion on first reading
(24/10/2002)
1. In cases where an air carrier or tour operator pays compensation or
meets the other obligations incumbent on it under this Regulation, no
provision of this Regulation may be interpreted as restricting its right to
seek compensation from a third party in accordance with the law
applicable.
Proposed Art.13 wording
In cases where an air carrier or tour operator pays compensation or
meets the other obligations incumbent on it under this Regulation, no
provision of this Regulation may be interpreted as restricting its right to
seek compensation from a third party in accordingly with the law
applicable.
D.2
142
Proposal for a Regulation of The European Parliament and of the Council amending Regulation (EC)
No 261/2004 establishing common rules on compensation and assistance to passengers in the event of
denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air
carrier liability in respect of the carriage of passengers and their baggage by air: COM/2013/0130 final -
2013/0072 (COD)
143
https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=CELEX:32004R0261
January 2020 | 272
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0299.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Stage of ordinary legislative
procedure
Proposed Art.13 wording
2. Member States shall ensure that any claim for compensation under
the principle that the agency responsible should pay can be made and
enforced against any third party, i.e. even State or other authorities with
sovereign powers, by the air carrier or tour operator.
Adoption of Common Position by
Council
(18/03/2003)
In cases where an operating air carrier pays compensation or meets the
other obligations incumbent on it under this Regulation, no provision of
this Regulation may be interpreted as restricting its right to seek
compensation from any person, including third parties, in accordance
with the law applicable. In particular, this Regulation shall in no way
restrict the operating air carrier's right to seek reimbursement from a
tour operator or another person with whom the operating air carrier has
a contract.
1. In cases where an operating air carrier pays compensation or meets
the other obligations incumbent on it under this Regulation, no provision
of this Regulation may be interpreted as restricting its right to seek
compensation from any person, including third parties, in accordance
with the law applicable. In particular, this Regulation shall in no way
restrict the operating air carrier's right to seek reimbursement from a
tour operator or another person with whom the operating air carrier has
a contract. Similarly, any tour operator or third party who, under this
Regulation, has incurred expenses or suffered losses because of actions
by the operating air carrier may seek reimbursement or compensation.
2. Member States shall ensure that any claim for compensation under
the principle that the agency responsible should pay may be made and
enforced against any third party.
Adoption by Commission of opinion
on EP amendments on 2
nd
reading
(11/08/2003)
Source: Clyde & Co LLP
"Amendment 17 would allow air carriers to make claims against public
agencies that would include air traffic management bodies and
managing bodies of airports. This is outside the scope of this proposal.
Part of the proposal concerned: Article 13 paragraph 1 (a) new."
EP Opinion on second reading
(03/07/2003)
D.3
The revised Art.13 text put forward by the Commission in its 2013 proposal expressly
confirmed that no provision of national law may be interpreted as restricting an air carrier's
right to seek recovery from third parties (rather than the current reference the Regulation's
provisions alone). The 8 November 2013 opinion of the Committee for Internal Market and
Consumer Protection then further expanded that text by confirming that no general contract
terms may be interpreted as restricting a carrier's right to seek compensation, which would
potentially have addressed some of the issued outlined above as regard the practical
constraints on an air carrier's possibilities for redress.
The subsequent 22 January 2014 report of the Committee on Transport and Tourism then
removed references to national law and general contract terms and instead providing that the
provisions of Art.13 were "without
prejudice to contracts of disclaimer with third parties in
force at the time of the dispute."
In justifying that approach, the Committee noted that
"existing contracts for disclaimer (e.g. between airports and airlines) should remain unaffected
by this provision".
A first Council reading position has yet to materialise given the ongoing
delay caused by the dispute over Gibraltar. Table E.2 provides further detail regarding the
applicable drafting history.
D.4
January 2020 | 273
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0300.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Table D.2: Right to redress
–
The Commission's 2013 proposal
144
Stage of ordinary legislative procedure
Commission's proposal
(13/03/2013)
Proposed Art.13 wording
In cases where an operating air carrier pays compensation or meets
the other obligations incumbent on it under this Regulation, no
provision of this Regulation or of national law may be interpreted as
restricting its right to seek compensation for the costs incurred under
this Regulation from any third parties which contributed to the event
triggering compensation or other obligations.
In cases where an operating air carrier pays compensation or meets
the other obligations incumbent on it under this Regulation, no
provision of this Regulation or of national law or general contract
terms may be interpreted as restricting its right to receive
compensation for the costs incurred under this Regulation from any
third parties which contributed to the event triggering
compensation or other obligations
In cases where an operating air carrier pays compensation or meets
the other obligations incumbent on it under this Regulation, and
without prejudice to contracts of disclaimer with third parties in
force at the time of the dispute, no provision of this Regulation may
be interpreted as restricting its right to seek compensation for, or to
recover in their entirety, the costs incurred under this Regulation
from any person, including any third parties, which contributed to
the event triggering compensation or other obligations, in
accordance with the applicable law. In particular, this Regulation
shall in no way restrict the right of the operating air carrier to seek
compensation or to recover its costs from an airport or other third
party with whom the operating air carrier has a contract.
In cases where an operating air carrier pays compensation or meets
the other obligations incumbent on it under this Regulation, and
without prejudice to contracts of disclaimer with third parties in force
at the time of the dispute , no provision of this Regulation may be
interpreted as restricting its right to seek compensation for, or to
recover in their entirety, the costs incurred under this Regulation
from any person, including any third parties, which contributed to
the event triggering compensation or other obligations, in
accordance with the applicable law. In particular, this Regulation
shall in no way restrict the right of the operating air carrier to seek
compensation or to recover its costs from an airport or other third
party with whom the operating air carrier has a contract.
"Amendment 104 with regard to the right to redress from third
parties needs redrafting for clarification."
Opinion of the
Committee on the Internal Market and
Consumer Protection for the Committee
on Transport and Tourism
(08/11/2013)
Committee report tabled for plenary, 1st
reading/single reading
(Committee on Transport and Tourism)
(22/01/2014)
EP Opinion on first reading
(05/02/2015)
Commission response to text adopted in
plenary
(20/05/2014)
Source: Clyde & Co LLP
Overview of Article 13
D.5
There are a number of stakeholders within the aviation industry that contribute (either
directly or indirectly) to air carriers’ ability to operate flights on time. Such stakeholders
144
https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2013/0072(COD)&
l=en
January 2020 | 274
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0301.png
Study on the current level of protection of air passenger rights in the EU | Final Report
include groundhandlers, airports, air navigation service providers, meteorological agencies,
manufacturers and maintenance, repair & overhaul organisations (MROs). However, liability
for compensation and care and assistance costs under the 261/2004 Regulation rests with
operating air carriers
145
, who in practice are unable to pass on any financial liability to third
parties who may be responsible for (or have contributed to) the flight disruption.
D.6
Art.13 of the Regulation addresses an air carrier's potential recovery from third parties in the
following terms:
"In
cases where an operating air carrier pays compensation or meets the other obligations
incumbent on it under this Regulation, no provision of this Regulation may be interpreted as
restricting its right to seek compensation from any person, including third parties, in
accordance with the law applicable. In particular, this Regulation shall in no way restrict the
operating air carrier's right to seek reimbursement from a tour operator or another person
with whom the operating air carrier has a contract. Similarly, no provision of this Regulation
may be interpreted as restricting the right of a tour operator or a third party, other than a
passenger, with whom an operating air carrier has a contract, to seek reimbursement or
compensation from the operating air carrier in accordance with applicable relevant laws."
D.7
Therefore, Art.13 does not grant air carriers a right of redress. Rather, it simply confirms that
nothing in the Regulation operates to exclude a right of redress that the carrier may already
have against a third party, whether under contract or at law. Given that the Regulation as
drafted contains no express prohibition on an air carrier's right of redress, Art.13 simply
confirms the status quo, and does not create any new rights.
In its decisions in relation to Regulation 261/2004, the CJEU has referenced the right of redress
under Art.13 on a number of occasions. For instance, delay in
Sturgeon,
seeking to support its
decision that the Regulation should be interpreted as providing a remedy of compensation for
flight the CJEU stated:
"…the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to an
air carrier's right to seek compensation from any person who causes the delay, including third
parties, as Article 13 of the Regulation provides. Such compensation may accordingly reduce or
even remove the financial burden borne by carriers in consequence of those obligations….
146
"
D.9
The CJEU made a similar point in
van der Lans v KLM
147
, where the court considered the status
of aircraft technical issues as 'extraordinary circumstances' (discussed further below). In
Krijgsman
148
,
the CJEU held that an operating air carrier is required to pay compensation for
flight cancellation even where it notifies a passenger's travel agent of such cancellation at least
two weeks in advance and that travel agent in turn fails to inform the passenger accordingly.
In doing so the CJEU stated that:
"…it should be noted that the discharge of obligations by the operating air carrier pursuant to
Regulation No 261/004 is without prejudice to its rights to seek compensation, under the
applicable national law, from any person who caused the air carrier to fail to fulfil its
obligations, including third parties, as Article 13 of that regulation provides…
That article
D.8
145
146
Albeit recent CJEU jurisprudence has altered the usual interpretation of 'operating air carrier'
Para 68,
Sturgeon
147
van der Lans v Koninklijke Luchtvaart Maatschappij NV. (Case C-257/14)
148
Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaart Maatschappij NV, Case C-302/16
January 2020 | 275
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0302.png
Study on the current level of protection of air passenger rights in the EU | Final Report
provides, in particular, that Regulation No 261/2004 in no way restricts the operating air
carrier's right to seek reimbursement from a tour operator or another person with whom the
operating air carrier has a contract.
149
"
D.10
However, the fact that recourse against third parties might reduce or remove an air carrier's
financial burden is not borne out in practice; under the Regulation, air carriers can often be
financially liable for disruption that third parties are responsible for (or have contributed to).
The right to redress in practice
D.11
There are situations where an air carrier is financially liable under the Regulation as a result of
circumstances beyond its control, but where there is no third party from whom to seek
redress. For example, CJEU jurisprudence confirms bird strikes to be 'extraordinary
circumstances'
150
, with the result that the air carrier is relieved of compensation liability for
any associated delay or cancellation (subject to demonstrating that all reasonable measures
were taken to avoid the disruption). However, the air carrier is obliged to provide care and
assistance in line with Art. 9 of the Regulation, with the CJEU case of
McDonagh v Ryanair
151
.
In such circumstances there would be little or no prospect of the air carrier recovering its
outlay (except perhaps a claim against an airport operator in relation to any shortcomings in
bird control measures). The same is true for adverse weather conditions and other
extraordinary circumstances, where a carrier would still be liable for care and assistance costs
without recourse against any third party.
There will however be other situations where an air carrier's liability under the Regulation is
engaged due to the acts or omissions of one or more identifiable third party. That said, as
discussed below, for a variety of reasons recovery from them is often problematic.
Groundhandlers
D.13
In the vast majority of cases, the contractual relationship between an air carrier and its third
party groundhandlers will be based on the terms of the International Air Transport
Association's Standard Ground Handling Agreement (IATA SGHA). The 2018 version of the IATA
SGHA (Main Agreement) deals with issues of liability and indemnity in the following terms:
"the Carrier cannot make any claim against the Handling Company, [its servants, employees,
agents and subcontractors] and shall indemnify it in respect of […] delay […] of persons carried
or to be carried by the Carrier, […] damage to or loss of property owned or operated by, or on
behalf of, the Carrier and any consequential loss or damage; arising from an act or omission
[which shall include negligence] of the Handling Company in the performance of this
Agreement unless done with intent to cause damage […] or recklessly and with the knowledge
that
damage […] would probably result.".
152
D.14
As a consequence of the above provision, an act of negligence by a groundhandler is
insufficient to give the air carrier a right of recovery. Instead, a groundhandler's liability will
only engage where its act or omission was intentional, or otherwise reckless and done with
the knowledge that damage would probably result. Such situations are rare in practice, with
such conduct being difficult to prove. As a result, groundhandlers are, in the vast majority of
D.12
149
150
Krijgsman,
Paras 29-30
Marcela Pešková and Jiří Peška v Travel Service a.s. (Case C-315/15)
151
Denise McDonagh v Ryanair Ltd (Case C-12/11)
152
The IATA SGHA contains a write-back for aircraft hull damage, but this is not relevant in this context.
January 2020 | 276
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0303.png
Study on the current level of protection of air passenger rights in the EU | Final Report
cases, insulated from an air carrier's financial exposure under the Regulation, notwithstanding
that they may have been responsible for any underling flight delay or cancellation. Whilst air
carriers could seek to re-balance the contractual apportionment of liability under
groundhandling agreements, doing so often proves difficult in practice given the wider
commercial implications of such an approach and the prevalence of the IATA SGHA as the
industry standard form.
D.15
Carriers are also often unable to classify disruption caused by groundhandling incidents as
'extraordinary circumstances'; this is because CJEU jurisprudence assesses such disruptive
events as being part and parcel of an air carrier's general operations. A case in point was
Siewert v. Condor
153
, where the CJEU held that a collision between an aircraft and mobile
boarding stairs cannot be categorised as 'extraordinary circumstances'. In reaching that
determination the CJEU stated that:
"…it should be pointed out that such mobile stairs or gangways are indispensable
to air
passenger transport… and, accordingly, air carriers are regularly faced with situations arising
from their use. Therefore, a collision between an aircraft and any such set of mobile boarding
stairs must be regarded as an event inherent in the normal exercise of the air carrier.
Furthermore, there is nothing to suggest that the damage suffered by the aircraft which was
due to operate the flight at issue was caused by an act outside the category of normal airport
services (such as an act of sabotage
or terrorism) and would thus… be covered by the term
'extraordinary circumstances'…
154
"
D.16
In further seeking to justify its decision in
Siewert v Condor,
the CJEU again referred to the
right of redress provision under Art.13 of the Regulation
155
. However, as discussed above, in
practice such rights of recourse are rarely available.
Airports
D.17
There are occasions when events falling within an airport's responsibility can adversely impact
air carrier operations and result in flights cancellations or delays. Examples include runway
debris causing foreign object damage to aircraft and the unavailability of critical airport
infrastructure (e.g. baggage handling systems). Where such events give rise to compensation
liability or care and assistance costs under the Regulation, the affected air carrier might be
anticipated to look to the responsible airport operator for recovery of such outlay per Art.13
of Regulation. However, as with recourse against groundhandlers, such action is rarely (if ever)
pursued, or if it is, successful.
An air carrier's access to and use of airport infrastructure is invariably subject to express
conditions imposed by the airport, with such conditions either being established under a
(signed) agreement between the airport and air carrier, or prescribed in regulations or
'conditions of use' which automatically apply to each and every air carrier making use of the
airport infrastructure. For example, Clause 1.1 of Heathrow Airport's Conditions of Use
provides that:
D.18
153
154
Siewert v. Condor Flugdienst GmbH (Case C-394/14)
Para 19, Siewert v. Condor
155
Para 21, Siewert v. Condor
January 2020 | 277
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0304.png
Study on the current level of protection of air passenger rights in the EU | Final Report
"These are the terms and conditions under which you use our Facilities and Services at the
Airport. If you use our Facilities and Services in any way (including taking off and landing) you
agree to be bound by these Conditions."
156
D.19
Airport regulations often seek to exclude all liability of the airport operator to the fullest
extent permitted by national law, including consequential (or similar) losses, save in relation to
liability for death and personal injury arising out of the airport operator's negligence or liability
that is proven to arise out of the airport operator's intent, gross negligence, wilful misconduct
or subjective recklessness. Some regulations (e.g. Manchester Airport's Conditions of Use) also
expressly exclude liability arising out of Regulation 261/2004
–
further examples of relevant
liability conditions are shown in Table E.3 below.
Such provisions are usually drafted to ensure compliance with local statutory controls
governing the exclusion or limitation of liability, which means it is usually not possible to
circumnavigate them. For instance, in the English case of
Monarch v London Luton Airport
157
,
which involved a claim for aircraft damage caused by loose paving blocks, the Commercial
Court upheld a provision in Luton Airport's Conditions of Use which excluded the airport's
liability unless caused intentionally or with knowledge that damage would probably result.
Enquiries with aviation lawyers in the UK, Spain and the Netherlands suggest that there have
been no reported cases in those jurisdictions of air carriers successfully recovering outlay
under the Regulation from airport operators (or indeed even attempting to pursue such
recovery via litigation).
Table D.3: Specimen liability exclusions
D.20
D.21
Airport(s)
Swedavia
Airports
158
Document
Airport
Charges &
Conditions of
Services
Provision excluding or limiting liability
3.1 Subject to clause 3.2, to the extent permitted by law neither the Airport
Company nor its respective subcontractors shall have any liability towards the
Airport user or be obliged to indemnify the Airport user for loss or damage,
arising or resulting directly or indirectly from any act, omission of act, neglect, or
default on the part of the Airport company or its subcontractors, unless done
with intent to cause damage, or through negligence. In any event neither
Swedavia AB nor their respective subcontractors shall be under any liability
whatever for any indirect or consequential loss and/ or expense (including loss of
profit) suffered by the Airport user.
3.2 Nothing in clause 3.1 shall be construed as excluding or limiting liability for (i)
death or personal injury arising from the negligence of the Airport Company, its
employees, subcontractors or Affiliates; or (ii) fraud.
…
3.5 The Airport Company is released from its obligations and liability for damages,
if the breach of obligations or failure to meet them was due to specific grounds
for release. As sufficient grounds for release from liability (force majeure) are
considered such unusual events affecting the operations, which the Airport
Company could not have foreseen, which are beyond the Airport
Company’s
156
https://www.heathrow.com/file_source/Company/Static/PDF/Partnersandsuppliers/Heathrow-
Airport-Limited-Conditions-of-Use-2019.pdf
157
Monarch Airlines Ltd v London Luton Airport (1998), Lloyd's Rep 403
158
https://www.swedavia.se/globalassets/flygplatsavgifter/swedavia-airport-charges-and-conditions-
of-services-2018_180112.pdf
January 2020 | 278
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0305.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airport(s)
Document
Provision excluding or limiting liability
control, or the impact of which could not have been reasonably avoided or
overcome. Such an event can be e.g. war, riot, foreign exchange restrictions, legal
provisions and orders from authorities, export prohibitions, natural catastrophe,
severe weather conditions, interruption of general traffic, data communications
or energy distribution, shortage of means of transport, general lack of material,
limitations of power availability, labour dispute, fire, or other unusual event with
similar effect
beyond the Airport Company’s control, including any error or delay
in a subcontractor’s delivery due to the above mentioned reasons. If the
performance of the Airport Company’s obligations is delayed for one of the
reasons mentioned above, the time for meeting the obligations is extended as
far as considered reasonable with regard to all circumstances affecting the case.
Heathrow
Airport
159
Conditions of
Use
13.1 For the purposes of this condition, "liability" means any liability, whether
pursuant to a claim for contribution or under statute, tort (including but not
limited to liability for negligence), contract or otherwise (save that any exclusions
or limitations of liability shall not apply in respect of fraud), and "liable" shall be
construed accordingly.
13.2 Subject to condition 13.3, to the extent permitted by law neither we nor our
employees, servants, agents or Affiliates shall have any liability to you or be
obliged to indemnify you in respect of: indirect loss; consequential losses; loss of
profits; loss of revenue; loss of goodwill; loss of opportunity; loss of business;
increased costs or expenses; wasted expenditure; or any other injury, loss,
damage, claim, cost or expense caused (or to the extent caused) by any act,
omission, neglect or default of ours or our employees, servants, agents or
Affiliates even if such loss was reasonably foreseeable or we had been advised of
the possibility of you incurring the loss.
13.3 Nothing in this condition 13 shall be construed as excluding or limiting
liability for (i) death or personal injury arising from the negligence of us, our
employees, servants, agents or Affiliates; (ii) fraud; or (iii) aircraft damage
resulting from our or our employees, servants, agents or Affiliates’ act or
omission done either with intent to cause damage or recklessly and with
knowledge that damage would probably result.
Manchester
Airport
160
Schedule of
Charges and
Terms &
Conditions of
Use
14.39.2. Subject to condition 14.39.3, to the extent permitted by law neither the
Company, the Airport nor its employees, servants, agents or Affiliates shall have
any liability to any Operator, Airline or Handling Agent or be obliged to indemnify
any Operator, Airline or Handling Agent in respect of: (a) indirect loss; (b)
consequential loss; (c) loss of profits; (d) loss of revenue; (e) loss of goodwill; (f)
loss of opportunity; (g) loss of business; (h) increased costs or expenses; (i)
wasted expenditure; or (j) any other injury, loss, damage, claim, cost or expense,
caused (or to the extent caused) by any act, omission, neglect or default of the
Company, Airport or its employees, servants, agents or Affiliates even if such loss
was reasonably foreseeable or the Airport and/or Company had been advised of
the possibility of the Operator incurring the loss.
14.39.3. Nothing in this condition 14.39 shall be construed as excluding or limiting
liability for (i) death or personal injury arising from the negligence of the Airport,
Company, its employees, servants, agents or Affiliates; (ii) fraud; or (iii) aircraft
damage (or damage to any property contained in an Aircraft) resulting from any
159
160
See footnote 157
https://live-webadmin-media.s3.amazonaws.com/media/5985/man-fees-and-charges-booklet-
2019_20.pdf
January 2020 | 279
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0306.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airport(s)
Document
Provision excluding or limiting liability
act or omission of the Airport, Company, its employees, servants, agents 39 or
Affiliates done either with intent to cause damage or recklessly and with
knowledge that damage would probably result. 14.39.4. Subject to condition
14.39.3, the Company and the Airport shall not be liable to any Operator or
Handling Agent in respect of any Loss suffered by the Operator or Handling Agent
by reason of any aerodrome service, assistance or facility not being available to
them except where provided otherwise in any legally binding agreement made
between the Company and any Operator or Handling Agent.
14.39.5. Subject to condition 14.39.3, the Company shall not be liable for any Loss
suffered by the Operator or Airline as a result of or in connection with any Claim
brought by or on behalf of any Passenger (i) pursuant to Regulation (EC) No
261/2004 (as amended, re-enacted or replaced from time to time) or (ii)
otherwise arising from or in connection with denial of boarding, delay or
cancellation of any flight.
Schiphol
Airport
Charges and
Conditions
161
Art.17, Section 1: The airport operator is not liable for damage and/or personal
injury sustained as a result of or during a stay in the airport area. The previous
sentence does not apply to damage and/or injury sustained as a result of a
demonstrable intentional act or omission and/or demonstrable gross
negligence on the part of the airport operator.
…
Art.17, Section 3: Furthermore, with regard to liability, the Schiphol regulations
are applicable (amongst which are articles 36 section 2 and article 37 and also
article 3 and 4) (without prejudice), insofar as it regards aviation activities (as
described in article 2 of the Amsterdam Airport Schiphol Operation Decree).
_______________
Schiphol
Regulations
162
36.1. The airport operator is not liable for damage and/or personal injury
sustained as a result of or during a stay in the airport area. The previous
sentence does not apply to damage and/or injury sustained as a result of a
demonstrable intentional act or omission and/or demonstrable gross
negligence on the part of the airport operator.
Source: Clyde & Co LLP
Manufacturers and MROs
D.22
In the CJEU case of
Wallentin-Hermann v Alitalia
163
a defect was discovered in the aircraft
engine during a scheduled maintenance check, resulting in a flight cancellation the following
day. The CJEU held that technical problems with an aircraft leading to cancellation of a flight
do not constitute ‘extraordinary circumstances’ unless the problem:
"…stems from events
which, by their nature and origin, are not inherent in the normal exercise
of the activity of the air carrier concerned and are beyond its actual control".
161
162
https://www.schiphol.nl/en/download/b2b/1540980593/3mbUt8j092KqwYgqIGEg8G.pdf
https://www.schiphol.nl/en/download/1554100874/43q9kGoE92CccmEeC6awa4.pdf
163
Wallentin-Hermann v. Alitalia
–
Linee Aeree Italiane SpA (Case C-549/07)
January 2020 | 280
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0307.png
Study on the current level of protection of air passenger rights in the EU | Final Report
D.23
The CJEU further held that the frequency of the technical problems experienced by an air
carrier is
not itself a factor from which the presence or absence of ‘extraordinary
circumstances’ can be concluded. It further held that an air carrier's compliance with minimum
aircraft maintenance rules cannot in itself suffice to establish that that carrier has taken
‘all
reasonable measures’ to avoid the 'extraordinary circumstances'.
Following
Wallentin,
air carriers generally accepted that classifying disruption as 'extraordinary
circumstances' would no longer be possible for delays or cancellations arising out of technical
issues discovered during routine maintenance checks. However, air carriers have argued that
last minute technical issues
–
for instance those discovered unexpectedly during pre-flight
checks or aircraft pushback
–
are not inherent in the normal exercise of an air carrier's
activities, and should consequently be classified as 'extraordinary circumstances'.
This gave rise to a series of further court cases across the EU, including the English Court of
Appeal case of
Jet2.com Limited v Ronald Huzar
164
and the CJEU case of
van der Lans v KLM
165
.
The result of those judgments is that technical issues fall outside the scope of 'extraordinary
circumstances', save for safety-critical defects identified by a manufacturer or competent
authority which ground an aircraft fleet.
As a result, air carriers are often faced with flight delays or cancellations caused by technical
issues that they argue are beyond their control, but are not classified as 'extraordinary
circumstances'. In some circumstances the air carrier may determine that the applicable
manufacturer, parts supplier or MRO is responsible for the underlying technical issue, for
instance on account of defective equipment having been supplied, or improper maintenance
having been performed.
However, as with groundhandlers and airport operators, recourse against such entities is
problematic for air carriers, with aircraft purchase and maintenance agreements typically
being robust and customarily offering warranties for aircraft equipment or maintenance work
in lieu of all other remedies, with the recovery of consequential losses expressly excluded.
Circumventing such contractual provisions for air carriers is very difficult in practice.
For example, Lufthansa Technik AG's Standard Terms and Conditions for Maintenance
Services
166
provide as follows:
"10. Limitation of Liability for Damages
10.1 LHT’s liability for damages in case of slight negligence (so-called “leichte Fahrlässigkeit”)
of LHT, its statutory representatives and Vicarious Agents shall be excluded, provided such
liability does not result from the violation of any material contractual obligations of particular
significance for the purpose of the Customer Agreement which the Customer may rely on,
damages arising from injury to life, limb or health or from violation of a guarantee. LHT´s
liability under the Product Liability Act shall remain unaffected.
10.2 To the extent LHT is liable in accordance with Article 10.1, LHT’s liability shall be further
limited as follows: LHT shall not be liable for non-foreseeable damages which are not typical
for Maintenance Services of the kind constituting the Maintenance Service under the relevant
Customer Agreement and which are neither based upon a violation of a guarantee, nor upon
D.24
D.25
D.26
D.27
D.28
164
165
2014 (EWCA) Civ 791
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62014CJ0257&from=EN
166
https://www.lufthansa-technik.com/standard-conditions
January 2020 | 281
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0308.png
Study on the current level of protection of air passenger rights in the EU | Final Report
intentional acts (or upon
intentional acts of LHT’s statutory representatives or its Vicarious
Agents), nor are caused by injury to life, limb or health, nor are damages to be compensated in
accordance with the Product Liability Act."
Public service providers
D.29
There are a range of other aviation stakeholders and regulatory bodies who perform
important public functions and whose acts or omissions can directly result in air carrier liability
engaging under the Regulation. Examples include air navigation service providers,
meteorological service providers, national and EU regulators (e.g. EASA) and government
departments.
The 2014 volcanic ash crisis provides a good example of a situation where third-party decision-
making had a direct impact on air carrier operations and their resulting liability exposure
under the Regulation. On 14 April 2010, seismic activity at Eyjafjallajökull, Iceland, culminated
in an eruption which generated large plumes of silica-based material, being potentially
dangerous to aircraft operations
167
. As a result, European airspace was closed for a week.
Whilst the events were classified as 'extraordinary circumstances' (and therefore air carriers
were not liable for compensation), air carriers were still liable for care and assistance costs, as
confirmed in the CJEU case of
McDonagh v Ryanair
168
. Given the widespread travel disruption,
the costs of such care and assistance was considerable: Ryanair and easyJet estimated their
total exposure under the Regulation as a result of the eruption and associated airspace closure
stood at £29m
169
and €23.7m
170
respectively. The Commission Staff Working Document
(Impact Assessment)
171
accompanying the Commission's 2013 proposal for revisions to the
Regulation noted that:
"[i]f the Regulation had been fully complied with during the crisis, it would have increased
airlines' combined costs by an estimated €960 million (which is roughly 1.5 times the expenses
for care and assistance in a "regular" year, and this within a period of less than a week)."
D.31
Various air carriers and IATA
172
disputed the need for blanket airspace closures, noting that
such decisions were not supported by suitable risk assessments and lacked the appropriate
degree of cross-industry consultation and coordination. It was also suggested by some air
carriers that data to which they had access indicated prevailing atmospheric concentrations of
ash to fall within safe engine operating parameters. As a consequence, certain carriers
reportedly approached EU agencies, EU institutions, local government and other providers of
public services with requests for compensation
173
; however, we are unaware of any reported
D.30
167
Abeyratne, Ruwantissa. 'Responsibility and Liability Aspects of the Icelandic Volcanic Eruption'.
Air
and Space Law
35, no. 4/5 (2010): 281-292.
168
See footnote 135
169
http://corporate.easyjet.com/~/media/Files/E/Easyjet-Plc-V2/prd/media/latest-
news/2010/IMS_Q3_2010_Final.pdf
170
http://www.ryanair.com/doc/investor/2012/Q1_2012)doc.pdf
171
COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document
Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No
261/2004 establishing common rules on compensation and assistance to passengers in the event of
denied boarding and of cancellation or long delays of flights and Regulation (EC) No 2027/97 on air
carrier liability in respect of the carriage of passengers and their baggage by air, p 17:
https://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0062:FIN:EN:PDF
172
https://www.iata.org/pressroom/pr/Pages/2010-04-19-01.aspx
173
http://news.bbc.co.uk/1/hi/business/8629674.stm
January 2020 | 282
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0309.png
Study on the current level of protection of air passenger rights in the EU | Final Report
cases of such compensation having been paid or litigation having been pursued against such
entities in respect of the 2014 Eyjafjallajökull eruption. Recovery claims against such parties,
whether successful or not, very rarely (or never) occur, largely due to the practical difficulties
faced in bringing such claims for air carriers. Such difficulties include:
•
•
In most cases air carriers have no direct contractual relationship with such third parties,
meaning that claims founded in breach of contract are not an option;
Any private law claims founded in tortious principles (e.g. negligence) will usually require
the establishment of a duty of care on the part of the relevant third party. Issues of
causation, remoteness and mitigation may also arise. Public policy reasons may operate to
protect bodies performing public functions from such tortious exposure;
Tortious claims may be also hampered by a general rule against the recovery of pure
economic losses, as is the case in the UK. Both compensation and care and assistance
costs arising out of the Regulation would typically fall within the classification of
consequential or pure economic losses, making their recovery potentially unlikely;
Whilst the decisions of bodies performing public functions may be subject to judicial
review or similar administrative re-evaluation, such processes may not provide a right to
damages;
Such entities may benefit from general immunity from prosecution on a statutory basis.
•
•
•
January 2020 | 283
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0310.png
Study on the current level of protection of air passenger rights in the EU | Final Report
E
EU+3 NEB fiches
The fiches are presented according to the protocol order of the Member States, based on the
Roman alphabetical order of their geographical names in the original language(s).
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Belgium
Bulgaria
Czech Republic
Denmark
Germany
Estonia
Ireland
Greece
Spain
France
Croatia
Italy
Cyprus
Latvia
Lithuania
Luxembourg
Hungary
Malta
Netherlands
Austria
Poland
Portugal
Romania
Slovenia
Slovakia
Finland
Sweden
United Kingdom
Iceland
Norway
Switzerland
January 2020 | 284
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0311.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Belgium
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The legal basis for enforcement of Regulation 261/2004 is the Aviation Law of
27 June 1937, amending the Law of 16 November 1919, on the regulation of air
transport. This allows for both criminal and administrative penalties to be
imposed. Article 32, which was added by Article 18(1) of the amendment of 15
May 2006, defines that except where there are other specific provisions,
infringement of European Regulations in relation to air transport is punishable
with a fine of 200 EUR to 4 million EUR, and/or imprisonment for between
eight days and one year.
Article 38 defines the process that must be followed to impose a criminal
sanction. A further amendment, defined in the Law of 22 December 2008, adds
provisions to allow administrative sanctions to be imposed. This took effect in
August 2009. The process is defined in Chapter III (Articles 45-52) of the
amended Law. In particular:
•
Article 45 defines that, if the public prosecutor does not start a
prosecution under Article 38, the offence may be published by an
administrative fine;
•
Article 46 defines the process to be followed to impose a sanction; and
Article 48 defines that the minimum and maximum fines under the
administrative process are equivalent to those under the criminal process.
SPF Mobilité & Transport is able to handle individual claims from passengers.
SPF Mobilité & Transport; Direction Générale Transport Aérien
Civil Aviation Authority within Government Transport Agency
Regulation 261/2004 & Regulation 1107/2006
-
4 FTEs spending 60% of their time on Air Passenger Rights
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The NEB is a second order body, meaning that passengers must have contacted
the airline first.
The ruling of the NEB, based on the evidence received, is communicated to the
passenger and airline. The NEB’s decision is non-binding.
If the NEB finds non-
compliance or a lack of response from an airline, it will organise a meeting to
discuss the obligations and necessary measures. On a case-by-case basis, the
NEB may decide to pass the case to the inspection department for possible
sanctions or prosecutions.
The general criminal and administrative procedure is applied, however no
formal policy has been established for deciding to prosecute or impose
sanctions on carriers. Limitations can arise from the criminal and administrative
procedure applicable to a passenger rights case file. Cases will be submitted for
criminal prosecution in the first instance. A territorial competency rule applies
January 2020 | 285
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0312.png
Study on the current level of protection of air passenger rights in the EU | Final Report
whereby the criminal offence has to have been committed on the Belgian
territory
–
airspace included
–
except where the Law is saying otherwise.
The prohibited behaviours listed in Chapter II of the Aviation Law are
punishable with a criminal fee and prison sanctions. Criminal sanctions can vary
from one day to one-year imprisonment and monetary fines. The case will be
passed to the General Prosecutor as the first competent authority. If no action
is taken after three months, the file gets returned to the agency’s inspection
service who will begin the administrative sanction procedure according to
Chapter III of the Law.
Infringements on EU regulations are punishable with prison sanctions from
eight days to one year and/or a fine between 200 Euros to 4 million Euros. The
General Prosecutor or The Chief Inspector of the agency (for administrative
fines only) determines the value of the sanction according to the circumstances
of the individual case.
Annual report or
activity report
Services to passengers
Communication with
passengers
Passengers can send a complaint to the NEB and will receive an
acknowledgement of receipt automatically. Within two weeks, the NEB scans
the case and, if relevant, will submit it to the airline requiring a reply within six
weeks. If no reply is received, a first reminder is sent to allow for an additional
two weeks followed by a second reminder allowing for an additional 8 days.
The NEB will then assess the case either based on the evidence received by the
carrier or based on the passenger complaint in cases where the airline does not
respond.
The complaint handling procedure takes a maximum of four months for
straightforward cases, six months for complex cases and longer for cases that
involve legal proceedings.
Complaints for which the NEB is not competent are forwarded to the
appropriate NEB. Alternatively, the NEB will provide the passenger with the
contact information of the competent NEB. If the problem is of commercial
nature or legal advice is required, the NEB will provide the passenger with
contact information of the ECC.
2018: 3,887 complaints received
2017: 2,734 complaints received
2016: 3,032 complaints received
2015: 2,491 complaints received
The NEB states that proportionally in terms of compliance they notice more
issues with smaller airlines.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
The NEB notes that it is in the process of setting up the system to gather more
detailed statistics on complaints
The NEB notes that it is in the process of setting up the system to gather more
detailed statistics on complaints
For extraordinary circumstances, the carrier provides various documents to
support its claim, including NOTAM, METAR, logbook data and flight reports.
The NEB also liaises with experts from the CAA to support the interpretation of
Annual report on NEB’s activities on all modes published on website in French.
Length of complaint
processing
261/2004 NEB
cooperation
Activity level for claims under 261/2004
Number of
complaints received
January 2020 | 286
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0313.png
Study on the current level of protection of air passenger rights in the EU | Final Report
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
the information received. No statistics are available on the number of
extraordinary circumstances investigated.
No sanctions have been issued yet.
The inspectorate within the CAA undertakes regular inspections, covering all
major Belgian airports.
NEB feels that passengers are better aware of their rights and expect these to
be respected. Airports within Belgium have worked to improve the information
provided, additionally there has been increased press reports on the issues and
positive experience with the NEB process is communicated between
passengers.
Same as legal basis for Regulation 261/2004.
The situation in Belgium is complex due to the three existing regions, Brussels-
Capital, the Flemish region and the Walloon region. SPF Mobilité et Transports
works at a federal level with its scope technically covering Brussels airport only.
However, to facilitate the situation for passengers and avoid confusion, SPF
does accept claims that concern a PRM issue that occurred at an airport in one
of the other regions. It will forward complaints to the relevant region, if
necessary, and is thus also listed as the only 1107 NEB for Belgium on the
European Commission’s NEB list.
The PRM complaints are sent to the same e-mail address as air passenger rights
complaints under Regulation 261/2004. The Safety Unit within the CAA was
historically the responsible unit with the SPF Mobilité et Transports. However,
an accessibility department has been established which due to its experience
primarily deals with complaints. The accessibility department coordinates with
the safety unit in case of any clarification issues or further investigations, as
well as for any corrective measures that are needed form the airport operators.
The NEB is a second order body as passengers are asked to contact the airport
operator or airline first.
When a complaint is received and it is confirmed that the concerns a PRM
issue, the accessibility department within SPF Mobilité et Transports handles
the complaint. The department may coordinate with the safety unit, especially
if corrective measures have to be taken. The SPF has the ability to write a
report to the prosecutor who may issue a criminal or administrative fine.
However, the NEB informs us that fines are seen as a last resort option.
The NEB undertakes inspections, usually once a year. These are mostly
unannounced, unless they require data to be requested in advance. The
outcome of the inspections is only reported if any issues are identified.
Informal regular communication exists between the accessibility department
and the safety unit, so that knowledge exchange exists between both teams. In
the past, this has led to information sessions on the importance of notification
which were open to the public and associations, as well as a working hubs.
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Role of the 1107/2006 National Enforcement Body
Is NEB a first or
second order body?
Enforcement power
of NEB
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
The number of complaints received is low.
The reasons for complaints are diverse, including length of time for assistance,
however the NEB has identified some issues with passenger’s needs not being
January 2020 | 287
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0314.png
Study on the current level of protection of air passenger rights in the EU | Final Report
properly communicated during notification either with the airline, travel agent
or airport.
Alternative/Online Dispute Resolution
Overview
The Consumer Mediation Service (CMS) mediates in residual consumer
disputes, including disputes regarding air passenger rights, covering:
•
Regulation 261/2004
•
Cases related to the Montreal Convention and Regulation 889/2002
•
Cases under the unfair terms in consumer contracts Directive (93/13/EEC)
or Directive 2005/29/EC on unfair business-to-consumer commercial
practices
The participation of airlines is voluntary, and the CMS is only competent for
companies (including airlines) registered in Belgium.
There is no minimum or maximum claim value for a consumer to use the ADR,
however the passenger has to fit the definition of the term consumer as stated
in the European regulation and the Belgian Economic Law Code.
The CMS cannot ask for additional damages or compensation beyond what is
specified in the Regulation. Belgian Law does not foresee extra compensation
or damages on the violation of passenger rights. The CMS can only rely on
legally defined damages or compensations when it suggests a solution or writes
a recommendation. It is important to stress that the CMS does not sanction
companies, it only refers to the law. The CMS is therefore a mediator and not
supervisory body.
In its rulings the CMS refers to legal texts as well as to case law. The CMS is of
the opinion that it is necessary to use case law as an additional instrument
since it provides interpretation to the Regulation.
The CMS can be contacted in Dutch, French, German and English. The same
languages apply for communication throughout the mediation procedure.
Decisions are only communicated to the parties involved due to privacy
reasons.
In 2018, it took 102 days on average to decide on passenger rights related
complaints.
https://consumerombudsman.be/en
The decisions of the CMS are non-binding and therefore non-enforceable. If an
airline does not respect the amicable settlement, the consumer can take the
matter to court. If the recommendation is in favour of the consumer an airline
has 30 days to write a motivated response. In absence of a motivated response
an airline can be fined with an administrative fine of up to 25,000 Euro. It is the
Economic Inspection that collects the fines and not the CMS itself. Fines go to
the treasury and not the funding of the CMS.
No cost.
Airlines don't have to pay to use CMS services. However, airlines can be fined
when there are at least 5 decisions (recommendation or amicable settlement)
registered annually on their name. Airlines have to pay €100 per decision
starting from the fifth decision. When an airline has 20 (or more) decisions
registered on its name
the fine is €200 per decision.
There is no small claims procedure in Belgium. Citizens can make use of the
European Small Claims Procedure.
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
National small claims procedure (individual procedure)
Small claims court
procedure
January 2020 | 288
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0315.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Claim agencies (individual procedure)
Between 10-15% of complaints the NEB receives are submitted by claim
agencies.
January 2020 | 289
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0316.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Bulgaria
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Art. 16b. (new, SG 52/04) of the Civil Aviation Act defines the CAA as the
responsible body to enforce Regulation 261/2004. Civil Aviation Act. The legal
limits for sanctioning are defined in Chapter Thirteen “Administrative and Penal
Provisions”
The NEB can handle individual complaints.
Ministry of Transport, Information Technologies and Communications
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
-
2 FTEs
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers must have contacted the airline initially for the NEB to handle their
complaint.
When the NEB receives a complaint, it is logged in the internal database. For
legitimate cases the NEB will then contact the airline and ask for a statement
and evidence. The timescales differ between the national carrier Bulgaria Air (2
weeks) and foreign carrier (3 weeks). Both CJEU judgements and case law from
other Member States is taken into account during the investigation phase.
Following the conclusion of the investigation, the NEB issues a non-binding
recommendation to the passenger. Airlines are requested to send proof of
compensation payment. If an airline refuses to pay compensation or the
passenger is not content with the NEB’s recommendation, the passenger has to
go to the courts to get redress enforced.
The approach that the NEB uses in cases of non-compliance with Regulation
261/2004 includes soft measures, such as letters, meetings and close
monitoring of the airline activities in the first instance. The NEB can issue
prescriptions, which define improvement measures for the airline but do not
include a financial penalty. If the NEB finds that no action to improve the level
of compliance have been taken, it is able to issue sanctions. However, the NEB
notes that its policy is to only use sanction as a final measure and it has not yet
issued any sanction yet. The NEB is also able to undertake system-level
enforcement on the basis of wider or consistent levels of non-compliance. The
maximum legal limits for sanctions are set at 10,000 Bulgarian Lev (approx.
5,000 EUR).
Annual report or
activity report
Services to passengers
Communication with
passengers
No information provided.
Passengers can submit their complaint online via a form available in English and
Bulgarian on the CAA’s website.
January 2020 | 290
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0317.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Length of complaint
processing
261/2004 NEB
cooperation
<3 months
For cases which it is not competent, the Bulgarian NEB advises the passenger to
contact the appropriate NEB and transfers cases with short summary of the
case in English. The NEB also works closely with ECC and holds regular
meetings.
2018: 1,193 complaints handled
2017: 2,448 complaints handled
2016: 1,249 complaints handled
2015: 1,137 complaints handled
2014: 983 complaints handled
Around half of the complaints that the NEB receives are legitimate.
Most complaints are due to delays (79%), followed by cancellations (11%),
denied boarding (6%) and baggage problems (4%).
No information provided
The Bulgarian NEB investigates extraordinary circumstances by asking for
evidence from airlines, including METAR/TAF reports, information from their
internal software and documentation like TLBs and journey logs. The NEB uses
METAR/TAF and NOTAM databases and the Eurocontrol NOP in assessing this
evidence.
No sanctions have been issued yet. One prescription was issued in 2017.
The CAA and dedicated inspectors undertake regular inspections between
three to four times a year. These inspections are announced and scheduled
around the busy periods, including summer and Christmas.
The NEB notes that passengers still not fully aware of process for submitting
complaints. However, overall awareness is improving due to the availability of
mobile apps and information campaigns.
Art. 16b. (new, SG 52/04) of the Civil Aviation Act defines the CAA as the
responsible body to enforce Regulation 1107/2006. Civil Aviation Act. The legal
limits for sanctioning are defined in Chapter Thirteen “Administrative and Penal
Provisions”
The NEB can handle individual complaints.
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
Passengers must have contacted the airline initially for the NEB to handle their
complaint.
No complaints yet but process would be the same as for Regulation 261/2004.
Activity levels for claims under 1107/2006
The NEB has not received any complaints relating to Regulation 261/2006.
-
Alternative/Online Dispute Resolution
January 2020 | 291
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0318.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Overview
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
The ADR body falls under the jurisdiction of the Commission for Consumer
Protection in Bulgaria.
Process takes between 30 and 90 days and the statutory time limit for handling
complaints is one month.
https://kzp.bg/podavane-na-zhalba
The ADR’s decision is not legally binding.
No costs
No information provided
National small claims procedure (individual procedure)
The Bulgarian Civil Procedure Code does not provide for a special small claims
procedure, but this was implemented in 2009 following Regulation (EC) No
861/2007. Proceedings are heard in the regional courts, whereas for issues not
specifically dealt with in Regulation (EC) No 861/2007 the general rules of the
Civil Procedure Code are applicable
In the month of February 2019, 480 out of the 510 claims received were
submitted by claim agencies (94%).
Claim agencies (individual procedure)
January 2020 | 292
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0319.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Czech Republic
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Czech Civil Aviation Authority
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
1 FTE for Regulation 261/2004 and a specialist for PRM issues alongside
support from legal team
Government-funded
Regulation 261/2004
National legal basis
The CAA’s powers as aviation regulator are defined in the Civil Aviation Act (Act
No. 49/1997). The legal basis for enforcement of Regulation 261/2004 is
defined in the Civil Aviation Act and the Administrative Code (Act No.
500/2004). The provisions of Regulation 261/2004 were addressed through
specific articles in the Civil Aviation Act, including potential discrepancies of air
carriers (Article 93, paragraph 2) and the maximum sanction limit (Article 93,
paragraph 8).
NEB can handle individual complaints.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact the airline first and wait for two months for a
response before the NEB handles their complaint.
When a complaint is received it is logged in the electronic database. Once the
CZ CAA has confirmed that the complaint is legitimate, a statement is
requested from the airline within six weeks. The evidence from the carrier is
investigated and a non-binding decision of the NEB is then issued to the
passenger. In cases where the CAA finds that compensation is due, it will
forward
the passenger’s bank details upon the airlines’ request, if needed. The
passenger is encouraged to file a lawsuit if he not content with the NEBs
decision.
The NEB can initiate penal proceedings. Penal proceedings can be started for
cases where the airline
is reluctant to respond to both the passenger and CAA’s
request, the airline is reluctant to provide sufficient evidence to support
extraordinary circumstances, or compensation payment is not made in duly
manner. Because of limited resources with the NEB, enforcement is only done
on a case-by-case basis and not at a system-level. In case of multiple cases
concerning the same flight, a collective higher sanction is issued for the flight.
As the number of complaints against the national carrier outnumbers the
complaints received against foreign carriers, a higher volume of penal
proceedings has been initiated against Czech carriers. The NEB notes that it
experiences a problem with delivering legal correspondence to airlines
registered outside of the EU. As such they are unable to legally commence an
administrative process and subsequently impose legally-binding sanctions
which may be appealed. As a result, the level of enforceability in such cases is
January 2020 | 293
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0320.png
Study on the current level of protection of air passenger rights in the EU | Final Report
extremely low. The maximum legal limit for sanctions is 1 million CZK (approx.
39,000 EUR).
Annual report or
activity report
Services to passengers
Communication with
passengers
Passenger can submit a complaint via the electronic form, which is available to
download on the NEBs website in either Czech or English.
The NEB notes that passengers are generally aware of their rights to be
compensated but less aware how to exercise these rights with the correct
enforcement body. Passengers are often under the impression that complaints
are handled by the state of the operating carrier or the state of passenger’s
residence. Additionally, there is a lack of awareness of the thresholds for
compensation which can lead to disappointment when complaints are found to
be extraordinary circumstances or not within the scope of the regulation.
Length of complaint
processing
261/2004 NEB
cooperation
3
–
6 months
The CAA usually only provides passengers with contact details of the
competent NEB. However, if a passenger insists then the CAA will forward the
complaint if it is already translated to English.
2018: 1,455 complaints handled out of 3,150 received
2017: 946 complaints handled
2016: 672 complaints handled
2015: 370 complaints handled
2014: 286 complaints handled
2013: 287 complaints handled
2012: 197 complaints handled
A large proportion of complaints or requests received by the NEB are not
legitimate (46% in 2018), as they either fall outside the scope of the Regulation
or are not within the Czech jurisdiction.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Most complaints relate to cancellations and delays.
No information provided.
The CAA requires airlines to provide evidence to support a claim of
extraordinary circumstance, including METARs, screenshots from internal
systems (including codes and lengths of the delays), and NOTAMs. If necessary,
the CAA will liaise with internal experts however the NEB notes that the It may
be further noted that the accuracy of documents provided by the airlines is
often questionable and the CAA is not always able to verify the authenticity of
such documents.
The CAA commenced 27 administrative processes last year, which is
significantly more than in the previous years (around 5 administrative
processes per year). Five of the penal proceedings concluded in a sanction and
ten have not been concluded yet. All of the issued sanctions have been paid by
airlines.
The NEB undertakes period audits.
No information provided
Activity level for claims under 261/2004
Number of
complaints received
Sanctions
Inspections and
other relevant
activities
January 2020 | 294
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0321.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
While awareness for compensation rights generally exists, there is less
awareness about the rights for provision of care.
The CAA’s powers as aviation regulator are defined in the Civil Aviation Act (Act
No. 49/1997).
NEB can handle individual complaints.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
PRM passengers can contact the NEB directly.
See enforcement process for 261/2004. No sanctions have been issued for PRM
Regulation.
Approximately one claim annually.
Complaints have been submitted for fees for a guide dog, waiting time for
assistance and missed connections, and denied boarding. Out of the total
number of complaints received since 2011, around half were not in scope of
Regulation 1107/2006.
The NEB has informed us that although ADRs bodies exists in the Czech
Republic they only deal with passenger rights relating to baggage and not
disputes relating to Regulation 261/2004. According to the NEB, it is currently
not possible for airlines to sign up due to the legal context in which the ADR has
been set up.
Nevertheless, the Czech Trade Inspection Authority is listed as a competent
ADR body for airline transport services on the European Commission’s website.
Activity levels for claims under 1107/2006
Alternative/Online Dispute Resolution
Overview
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
-
http://www.coi.cz
Not legally-binding
No costs
No information
National small claims procedure (individual procedure)
A small claims court procedure does not exist in the Czech Republic.
Claim agencies (individual procedure)
In 2018, 28% of all of the complaints were submitted through claim agencies.
January 2020 | 295
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0322.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Denmark
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The Danish Air Navigation Act provides the framework of the regulation of civil
aviation in Denmark. §153b. of the Air Navigation Act nominates the Danish
Transport, Construction and Housing Agency as the National Enforcement Body
responsible for Regulation 261/2004
The NEB accepts and handles enquiries and complaints from individuals that
are submitted through an online complaint form.
The NEB can only cover claims where the consumer has reached out to the
airline and did not hear back within 4 weeks or could not find a solution with
the carrier.
When a complaint is received, the NEB starts an investigation by contacting the
airline. The threshold for responding is four weeks, followed by two additional
weeks for additional evidence. Because the NEB is also an ADR body, the
decision issued by the NEB upon concluding its investigation (called BL) is
binding.
Although enforcement of the regulation is primarily done on a case-by-case
basis, the NEB is looking to also undertake more system-level enforcement.
The Transport, Construction and Housing Authority can impose sanctions for
both EU-carriers and non-EU carriers, however only through public prosecution.
Sanctions will be issued in cases where carriers are not complying with the
decision made by the authority and compensation is not paid to the passenger
within a set deadline. The NEB will then contact the public prosecutor to ask for
the case to be taken forward. If it is taken forward and the court finds that the
air carrier has failed to comply with the decision of the NEB, a fine will be
imposed. The penalty for non-compliance is either 10,000 DKK or 20,000 DKK
(approx. EUR 1,350 or 2,700) depending on the size of the of the amount due to
the passenger.
The NEB notes that most airlines comply with its decisions as airlines want to
avoid paying a sanction in addition to the individual compensation.
Annual report or
activity report
Services to passengers
No information provided.
The Danish Transport, Construction and Housing Authority’s Centre for Civil
Aviation
Civil aviation authority
Regulation 261/2004, Regulation 1107/2006 and ADR body
Alternative Dispute Resolution (ADR)/Online Dispute Resolution (ODR) body
FTEs: 2 legal advisors and 3 case handlers
Budget: Governmentally-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
January 2020 | 296
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0323.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Communication with
passengers
The NEB accepts complaints online via specific forms
(https://klage.flypassager.dk/en) available on its website. The forms are
designed in Danish and English and can be completed in either language.
Following receipt of the complaint an all its relevant documentation, it is
forwarded to the carrier for comment. Any documentation received from the
carrier which can result in a ruling in favour of the carrier, will be sent to the
passenger for comment.
Approximately 75% of all cases are closed within 3 months.
< 3 months
When the NEB receives a complaint for which it is not competent, it will
provide the passenger with contact information of the competent NEB in
accordance with the revised NEB-NEB agreement. The NEB holds bi-annual
meetings with the ECC.
2018: 3,115 complaints received
2017: 3,113 complaints received
2016: 2,370 complaints received
2015: 2,333 complaints received
2014: 1,637 complaints received
2013: 976 complaints received
2012: 127 complaints received
*The NEB notes that roughly 6,000-7,000 complaints are brought to the Danish
courts so that the total number of passenger complaints is closer to 10,000. In
2018, approximately 25% of complaints received by the NEB were not
legitimate.
Length of complaint
processing
261/2004 NEB
cooperation
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
Most complaints are due to long delays (71%), followed by cancellations (27%)
and denied boarding (2%).
In 2018, the NEB made decisions in 1,951 cases out of 3,115 received. In 2017 it
was 2,105 out of 3,113.
In 2017, 54% of cases were settled between the parties, 16% of cases were
ruled in favour of the passenger(s), 1% of cases were ruled in partial favour of
the passenger(s) and 28% of cases were ruled in favour of the air carrier.
Investigation of
extraordinary
circumstances by the
NEB
NEB requests that the carrier provides sufficient evidence if extraordinary
circumstances are cited as the cause of the delay/cancellation. The NEB
receives a wide variety of documentation to support claims of extraordinary
circumstances.
In cases of adverse weather, only METAR and TAF reports are accepted.
Internal logs or movement reports that document aircraft movement and
delays and provide reasons for them are also often received. Furthermore, the
NEB may also receive Eurocontrol notifications, which can prove that the
aircraft was affected by ATC-restrictions among other things. In relation to bird
strikes and lightning strikes, the NEB will require technical reports to document
such incidents. The NEB also receives internal documents from air carriers,
from which it is difficult to credibly evaluate the extraordinary circumstances.
If the NEB does not find that the carrier has provided sufficient evidence to
assess whether the incident was caused by extraordinary circumstances,
further information is requested from the airline.
January 2020 | 297
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0324.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
In 2018, the NEB has forwarded 52 of its 1,792 legitimate claims to the public
prosecutor. We did not receive information on number of sanctions imposed.
The NEB has launched a pilot inspection programme for the two biggest
airports with announced audits happening before the summer period.
The NEB has witnessed an increased awareness from passengers on their rights
when travelling, as well as seen an increase in the number of complaints
received.
The Danish Air Navigation Act provides the framework of the regulation of civil
aviation in Denmark.
The NEB deals with individual claims from passengers.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Unlike for Regulation 261/2004, passengers can submit complaints under
Regulation 1107/2006 to the NEB without having contacted the airline/airport
first.
Compliance with the Regulation is monitored through audits and inspections.
When claims are received, the NEB goes into dialogue with the airline/airport in
question to assess if the airline/airport has acted in accordance with the
Regulation. Due to the low number of complaints, the NEB does not make any
administrative decisions.
A written statement on the outcome of the complaint is issued to the PRM,
usually within 3 months of receiving the complaint.
Sanctions can be imposed under the Danish Civil Act on Aviation and the
Executive Order, but no sanctions have been applied.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Approximately 3-5 complaints annually.
Most of the complaints relate to situations where an infringement of the
situation almost happened and therefore reflect the passenger’s frustration
instead of an actual infringement.
The nature of complaints varies but primary concern is insufficient support at
the airport.
Alternative/Online Dispute Resolution
Overview
Details
The Danish ADR is part of the competent NEB in Denmark, the Transport,
Construction and Housing Authority. ODR is not used in Denmark.
Participation in the ADR procedure is mandatory for airlines. If the air carriers
do not want to participate in the procedure, case handlers make administrative
decisions on the basis of available information/presented evidence.
The ADR has the same geographic area of competency as the NEB (i.e. flights
departing from Danish airports and flights arriving from third countries if the
carrier is an EU-carrier) and is not limited to airlines registered in Denmark. The
passenger must have complained directly to the air carrier before they send in
a complaint to the Danish NEB/ADR. In rulings, the ADR refers both to
January 2020 | 298
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0325.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Regulation 261/2004 and CJEU-rulings, as well as rulings from the Danish
Supreme Court and High Courts. Procedures are done both in Danish and
English.
Contact
Legally binding
https://klage.flypassager.dk/en
The decisions of the NEB/ADR are administratively binding. If airlines do not
comply with decision of the NEB/ADR, the case will be brought to a public
prosecutor which can initiate prosecution against the carrier.
The costs are covered by the air carriers and thus ADR procedures are free for
the consumer. There is also no minimum or maximum claim value for
consumers to use ADR.
The costs for ADR procedures is covered by a tax paid by the air carriers flying
into/out of Denmark. The ADR awards the compensation as set out in
Regulation 261/2004, as well as refunds depending on expenses held by
passengers. Additional damages or compensation beyond what is specified in
the regulation are not awarded.
A small claims court procedure exists in Denmark. Cases are filed digitally to the
relevant district court. When the defendant has responded to the case, the
court will assist in handling the case. Participation in this is subject to a fee of
500 DKK (approx. EUR 70). The timescale varies from case to case, but
procedural rules are simplified to shorten the duration of the process.
The amount concerned must not exceed 50000 DKK (approx. EUR 6700).
Claim agencies (individual procedure)
Approximately 1/3 of complaints registered with the NEB are from claim
agencies. The quality of documentation submitted by claim agencies varies,
with approximately 50% of submissions lacking basic documentation. The
quality of documentation has been improving as a result of a NEB policy on
claim agency submissions. Additionally, the NEB holds dialogue meetings with
claim agencies twice a year, which offer room for discussion to address any
problematic patterns with complaints submitted by claim agencies.
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
National small claims procedure (individual procedure)
Small claims court
procedure
January 2020 | 299
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0326.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Germany
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The Air Traffic Licensing Regulation (Luftverkehrszulassungsordnung) defines
the LBA as the NEB and that non-compliance is a misdemeanour (minor
offence):
•
Paragraph 63(d) defines LBA as the NEB, responsible for complaint
handling and enforcement and able to undertake inspections. Paragraph
108(2) defines the offences for breaches of the Regulation.
The Air Traffic Law (Luftverkehrsgesetz), paragraph 58(1)(13), defines that
breach of EU Regulations relating to air traffic is an offence. Paragraph 58(2)
defines the fines applying for breach of these Regulations.
The Law on Administrative Offences (Gesetz über Ordnungswidrigkeiten)
defines the administrative process that must be followed in order to impose
sanctions. It defines that the responsible authority, in this case LBA, can decide
whether to impose penalties.
The LBA accepts individual complaints from passengers but is not competent to
enforce civil claims of individual passengers. Instead it performs administrative
offence proceedings based on individual passenger complaints. It is responsible
for the monitoring and enforcement of the Regulation and accepts and handles
enquiries and complaints. For compensation, passengers get directed to the
relevant ADR body in Germany.
Not applicable as NEB does not enforce individual claims.
As the German NEB, LBA supervises the compliance of air carriers and airports
under Regulation 261/2004 with respect to the trade law. The aim of the
enforcement process performed by the LBA is an improvement of company-
side processes and to avoid future infringements, but not the enforcement of
individual civil claims of passengers for compensation under civil law. For
compensation claims, the passenger is referred to ADR entities.
The LBA examines if incoming passenger complaints fall under the scope the
regulation and identifies potential infringements. In case of infringements, the
LBA is empowered to perform administrative offence proceedings and to
impose fines against the company involved on the legal basis of the national
law of administrative offences. In this context the LBA has the discretionary
power (§ 47 Administrative Offences Act) to open proceedings or to abstain
from further handling and sanctioning.
Luftfahrt-Bundesamt (LBA)
Civil Aviation Authority
Regulation 261/2004, Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
7 FTEs to cover complaints under regulation 261/2004 and 1107/2006
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
January 2020 | 300
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0327.png
Study on the current level of protection of air passenger rights in the EU | Final Report
For the handling of complaints, data recording and drawing up of
correspondence the LBA uses an IT-tool called DeBoarA (Denied Boarding
Application). Additional to that the LBA launched electronic file management in
2019.
LBA considers the discretionary powers principle and the principle of
proportionality. As such, the LBA issues warnings as a first step to sensitize
carriers and airports with regard to their particular obligations. If they still find
(proven) infringements against Regulation 261/2004 fines will be imposed that
are calculated in the individual case considering the circumstances (i.e. severity
of infringements and frequency of former infringements).
The maximum penalty defined by Article 58(2) for non-compliance with these
and other European
Regulations in relation to air transport is €30,000. In
addition, the law allows for imposition of an additional fine in order to recover
the economic advantage that the airline has obtained through non-compliance
with the Regulation.
Sanctions can be imposed on carriers registered in EU member states as well as
on those registered in third countries. If a sanction is imposed, then carriers
have to pay the specified fine, but they are not required to pay compensation
to the passenger the case is based on. Execution of fines and debt enforcement
against companies from third countries can be difficult, with a higher
administrative burden associated. The NEB refers to German court rulings, as
well as those from the CJEU.
Annual report or
activity report
Services to passengers
Communication with
passengers
LBA accepts complaints only via specific forms which it makes available on its
website. The forms are designed in German and English and can be completed
in either language. LBA communicates with passengers in German or English
and provides an individual response to each passenger. On average the
complaint handling process takes over 18 months.
Passengers will be informed about the final decision of the LBA for their case.
On the LBA website, passengers are also informed about the fact that the LBA is
not the competent body for the enforcement of civil claims. The website
includes a referral link to the German ADR body which passengers can use for
the enforcement of potential civil claims.
Length of complaint
processing
261/2004 NEB
cooperation
> 18 months
Where LBA receives complaints that are not covered by its competency, it
forwards the complaint to the appropriate NEB. The competent NEB will be
provided with a summary of the relevant circumstances of the case in English
and the passenger concerned will be informed about the transmission.
LBA has also used the NEB network for cross-border issues.
Activity level for claims under 261/2004
Number of
complaints received
2018: 5134 complaints received, incl. 4258 processed
2017: 3211 complaints received, incl. 2704 processed
2016: 3075 complaints received, incl. 2433 processed
2015: 2844 complaints received, incl. 2164 processed
2014: 2739 complaints received, incl. 2035 processed
Regular report since 1995. Latest publication in 2016. More up-to-date
statistics published on website.
January 2020 | 301
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0328.png
Study on the current level of protection of air passenger rights in the EU | Final Report
2013: 4582 complaints received, incl. 3490 processed
2012: 5105 complaints received, incl. 4480 processed
2011: 4442 complaints received, incl. 3749 processed
Up until 2013, the NEB was also acting as an ADR body which explains the
decrease in complaints in the following years.The increase in complaints in
2018 is a result of an increase in traffic as well as airline insolvencies.
Nature of complaints
received
The main reasons for complaints are delays (56%) and cancellations (37-38%).
There has been an increase in the number of complaints due to cancellations in
the last few years. Denied boarding makes up 6% of complaints, downgrading
only 1%.
Generally, passengers complain about the refusal or delayed payment of
compensation. With regard to cancellations, especially in the context of
extensive situations (e.g. strike), a larger number of passengers also complain
about not receiving assistance (meals and accommodation). With regard to
certain airlines, passengers also complain about not being offered (suitable) re-
routing.
The majority of complaints in 2018 related to German carriers (51%), followed
by European carriers (40%) and third-country carriers (9%).
Outcome of
complaints
LBA considers its role as an enforcement body only, and it cannot become
involved in deciding a dispute about a private contract between a passenger
and a carrier. Therefore, it may consider imposing sanctions, but will not
instruct an airline to pay compensation in an individual case. An airline may
decide to pay when LBA becomes involved, but if it does not, the passenger
would need to seek other means of redress (ADR or courts).
LBA considers extraordinary circumstances on a case-by-case basis within the
scope of its administrative offence proceedings. Airlines are required to submit
extracts from their flight documentation, including METAR data and, if
necessary, technical documentation. Publicly available information, for instance
publications on strikes or other incidents are used, as well as input from
experts of the ANSP (Deutsche Flugsicherung) and the flight operations
department of the LBA to verify information.
2018: 33 sanctions (avg. 2,621€)
2017: 336 sanctions (avg. 7,138€)
2016: 68 sanctions (avg. 2,257€)
2015: 99 sanctions (avg. 3,455€)
2014: 52 sanctions (avg. 1,577€)
2013: 12 sanctions (avg. 1,583€)
2012: 113 sanctions (average amount 1,602€)
Overall, 85% of sanctions imposed by LBA were paid by carriers and only 15%
were appealed. The NEB stated that airlines are quite reactive and ensure to
change their practice in response to fines.
Inspections and
other relevant
activities
Changes in activity
levels since 2011
LBA also performs audits and implemented a regular annual exchange with
airlines and also event-driven exchanges with single companies. Between 80
and 100 inspections are undertaken annually, both announced and
unannounced.
The highest number of complaints under Regulation 261/2004 was handled in
2012 (4,480 complaints). Since then, the number of handled complaints was
lower but increased again to similar levels in 2018 (4,258 complaints).
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
January 2020 | 302
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0329.png
Study on the current level of protection of air passenger rights in the EU | Final Report
LBA noted that in recent years more passengers have become aware of
Regulation 261/2004 and their rights. Due to the high amounts of
compensation based on the Regulation 261/2004, the majority of passengers
appealing to the LBA has strong and preferential interests in receiving
compensation.
LBA has also recently received more complaints from passengers based on
insufficient offers of re-routing (no offer of re-routing but only reimbursement,
or offer of re-routing on flights a couple of days after the scheduled time of
departure).
Regulation 1107/2006
National legal basis
The Air Traffic Licensing Regulation (Luftverkehrszulassungsordnung) defines
the LBA as the relevant NEB for the Regulation (paragraph 46(a)) and non-
compliance by airports or airlines as a misdemeanour (minor offence)
(paragraph 108(4))
LBA accepts individual complaints from passengers but is not competent to
enforce civil claims of individual passengers. Instead it performs administrative
offence proceedings based on individual passenger complaints. It is responsible
for the monitoring and enforcement of the Regulation and accepts and handles
enquiries and complaints with the aim of improvement of company-side
processes and to avoid future infringements.
Not applicable as NEB does not enforce individual claims.
Enforcement powers for Regulation 1107/2006 are as described for Regulation
261/2004 above.
From 2011 to 2018 the LBA received 129 complaints related to Regulation (EC)
No 1107/2006. 15 of these complaints were transmitted to other NEBs by
reasons of competence, 13 of these complaints were closed because the were
not in scope of the Regulation. 101 complaints were handled by the LBA.
The number of received PRM complaints remains small but an increase has
been observed since 2011 (14%). The highest number of claims under
Regulation 1107/2006 was observed in 2013.
Nature of claims
received
Most frequent reasons for complaints have been: refusal of transport of
medical equipment and mobility aids (free of charge), insufficient assistance in
moving to toilet facilities on aircraft, refusal to arrange seating to meet the
needs of passengers (free of charge), lacking information about restrictions on
carriage of PRM and of mobility equipment due to aircraft size, delay of
provision of assistance by airports, insufficient assistance to reach connecting
flights in transit.
LBA imposed fines in 4 cases:
- One case of refusal of a reserved seat when boarding and insufficient
information about seating restrictions by the air carrier; fine: 1,000€.
- Two cases of insufficient assistance in moving to toilet facilities (no provision
of an onboard-wheelchair),
fine: 1,000€ per case.
- One case of denied boarding and refusal of transport of a needed pre-notified
oxygen apparatus, fine: 2,000€.
In addition to the above, the LBA issued a caution (without a fine) in 6 cases.
Reasons for warnings were refusals to transport mobility or / and medical
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Activity levels for claims under 1107/2006
January 2020 | 303
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0330.png
Study on the current level of protection of air passenger rights in the EU | Final Report
equipment, lacking information about seating restrictions and safety
regulations applicable, lacking assistance in moving to toilet facilities.
Alternative/Online Dispute Resolution
Overview
On 1 November 2013, the Law on Conciliation in Air Traffic entered into force in
Germany. This amendment of the law entitles passengers to appeal to
designated ADR bodies with regard to the following issues: 1. denied boarding,
delay and cancellation of flights 2. destruction, damage, loss or delayed
transport of luggage 3. destruction, damage or loss of things that the passenger
wears or carries 3. violations of duty in case of the transport of disabled
passengers or passengers with reduced mobility. The legal basis for the
conciliation is §§ 57 to 57 c German Civil Aviation Act (Luftverkehrsgesetz) as
well as the Luftverkehrsschlichtungsverordnung (Regulation pursuant to § 57c
of the German Civil Aviation Act).
The conciliation organized under private law is at present carried out by the söp
Schlichtungsstelle für den öffentlichen Personenverkehr e.V. (The German
Conciliation Body for Public Transport).
Details
A conciliation for consumers is possible up to an amount of 5,000 EUR (or
30,000 if airlines agree) and the procedure is offered in German and English. A
conciliation for claims of less than 10 EUR is not considered. For non-consumer
business traveller complaints, the ADR notes that under the legal context,
airlines are only required to participate in arbitration proceedings for privately
arranged trips. In individual cases, airlines may voluntarily participate in an
arbitration procedure for business-related air travel. The regulations of the
German Civil Aviation Act provide a conciliation organized under private law
and the official conciliation process. As far as an air carrier does not participate
in a conciliation organized under private law, the Official Conciliation Body with
the Federal Office of Justice is responsible. While participation in the ADR is
voluntary, there is a legal obligation that all airlines flying from/to a German
airport have to pay for ADR, either at a private scheme (söp) or otherwise at a
public residual scheme (Schlichtungsstelle Luftverkehr at Federal Office for
Justice). This encouraged the majority of relevant airlines to join söp.
In order for the ADR body to consider a claim the passenger has to have
contacted the carrier first. The official conciliation process only takes place, if
an air carrier refuses the conciliation organized under private law. The
conciliatory proposal must be submitted to the parties involved by the
Conciliation Body within 90 days of receipt of the conciliation request or the
presentation of the complete documentation on the conciliation request. The
ADR body has to present the passenger with a mediation proposal within 90
days. In 2015, the ADR handled 28,104 cases. For 60-80% partial or full
compensation was paid, on average 500 Euros.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://soep-online.de/
Proposed ADR resolutions are not legally binding.
The conciliation is free of charge for passengers. Passengers only have to pay
their own costs, e.g. postage, copies or, if any, lawyer's charges.
The ADR service is completely financed by the airlines through an annual fee
and a case fee (depending on the time efforts for the individual case).
There is no special procedure for small claims in the Code of Civil Procedure
(Zivilprozessordnung). However, Section 495a of the Code does make provision
National small claims procedure (individual procedure)
January 2020 | 304
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0331.png
Study on the current level of protection of air passenger rights in the EU | Final Report
for a simplified procedure, allowing the court to decide how to proceed in cases
where the value in dispute is €600 or less.
Claim agencies (individual procedure)
The NEB has noted a significant increase in complaints received from claim
agencies, which now account for 30% of all complaints. Issues with the
completeness of information have been noted.
January 2020 | 305
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0332.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Estonia
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Aviation Act
The NEB cannot enforce individual complaints but will assist complainants to
identify the competent enforcement body (either the Estonian ADR or and NEB
in another Member State).
Passengers have to contact the airline first.
The NEB acts as a support body for passengers but does not enforce
compensation for individual complaints. The practices were changed at the
beginning of 2018, before which all individual complaints were handled by the
NEB. Since 2018, the NEB provides passengers with information on the
competent enforcement bodies or transfers complaints. For complaints that fall
within its competence, i.e. involving carriers not-registered in Estonia, the NEB
requests information from the airline, investigates the case and provides a non-
binding recommendation. The NEB will advise the airline to compensation in
cases where it finds that redress is due. The airline is also informed that if
compensation is not granted the passenger is advised to turn to court.
Since 2018, the ADR body (the Consumer Complaints Committee) handles the
enforcement of individual compensation for cases where the airline is
registered in Estonia. For complaints against other airlines where the incident
did not occur in Estonia are directly forwarded to the competent NEB.
The NEB’s current role only allows the monitoring and enforcement of general
compliance with air passenger rights and the provision of information to
passengers under the aspect of misleading commercial practices. The NEB
notes that they are currently in the process of amending the civil aviation code
to give them the more specific powers for system-level enforcement with
regards to Regulation 261/2004. The update of the code should come into force
from 2020.
Estonian domestic legislation (Aviation Act) gives the NEB authority to issue a
precept or guideline to the airline which states whether the NEB finds the
passenger eligible for compensation. Beyond that, the NEB has no competence
to issue sanctions to the carrier if it fails to comply with its recommendation or
non-compliance with Regulation 261/2004. The proposed amendment of the
Aviation Act will allow the NEB to issue precept where it finds non-compliance
Role of the 261/2004 National Enforcement Body/Bodies
Consumer Protection Body in the Consumer Protection and Technical
Regulatory Authority (CPTRA)
Consumer Protection Body
Regulation 261/2004 & Regulation 1107/2006
Alternative Dispute Resolution (ADR); and
Consumer Protection Corporation (CPC) network
1 FTE
Government-funded
January 2020 | 306
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0333.png
Study on the current level of protection of air passenger rights in the EU | Final Report
with the regulation. The NEB will still not be able to issue binding decisions
related to the payment of compensation for individual passengers.
Annual report or
activity report
Services to passengers
Communication with
passengers
The NEB provides passengers with information about their rights and assists to
find the competent NEB or refers cases to the ADR body when possible.
Complaints against other airlines where the incident did not occur in Estonia
are directly forwarded to competent NEB.
3
–
6 months
The NEB cooperates with the ADR, to which it transfers cases regarding carriers
registered in Estonia.
2018: 475 complaints
2017: 276 complaints
2016: 91 complaints
2015: 67 complaints
2014: 63 complaints
In 2018, the proportion of legitimate complaints was 70% which is higher than
in previous years (33% in 2017 and 53% in 2016).
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
No information provided
No information provided
The NEB requests evidence from the airline and liaises with experts from the
Estonian Civil Aviation Authority to interpret the documentation if required.
In 2017 and 2018 a total of 49 cases where air carriers proved the existence of
extraordinary circumstances.
There have been 11 cases in total where the NEB had to issue a precept to the
airline regarding compensation. No penalty payments were issued because air
carrier implemented the precept.
No information provided
No information provided.
Length of complaint
processing
261/2004 NEB
cooperation
Number of
complaints received
Activity level for claims under 261/2004
Inspections and
other relevant
activities
Changes in activity
levels since 2011
The number of passengers claiming for compensation is increasing every year
due to an increased level of awareness. The NEB also notes that an increasing
number of airlines are reluctant to pay redress to passengers as a result of the
rise in complaints.
Aviation Act
No information provided
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Role of the 1107/2006 National Enforcement Body
No information provided
January 2020 | 307
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0334.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Enforcement power
of NEB
Claims received
No information provided
Activity levels for claims under 1107/2006
No complaints under Regulation 1107/2006.
In 2018, there were 6,179 PRMs carried by airlines. The number has increased
steadily since 2011 when it was only 1,078 PRMs.
Nature of claims
received
Overview
-
Alternative/Online Dispute Resolution
The Consumer Complaints Committee is the Estonian ADR body and is part of
CPTRA. The ADR handles all cases where the airline is registered in Estonia and
the value of the claim is higher than 30 EUR.
Participation in the Committee's work is mandatory for all traders established
in Estonia. The committee consists of a chairman and members, including both
representatives of businesses or professional associations and consumer
representation organisations. A dispute can be concluded either through
withdrawal by the passenger, the agreement between both parties at the
committee sitting or the decision-making process of the committee. The
process takes up to 60 days. The ADR uses both CJEU judgements and case law
from other Member States. Approximately two-thirds of the traders comply
with the Committees decisions. A list of the organisations who have failed to
comply with the decisions of the Committee is published as a “black list” on the
website of the CPTRA.
The process handling language is Estonian only and while the consumer can
choose between a written and oral procedure, the ADR may require the
physical presence of the parties and/or their representative in some cases.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://komisjon.ee/et
Not legally-binding
No costs.
No costs.
Details
National small claims procedure (individual procedure)
A small claims court procedure is available.
Claim agencies (individual procedure)
There are four Estonian claim agencies that have been set up recently. The NEB
also receives complaints from claim agencies from the UK, Denmark and
Lithuania.
January 2020 | 308
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0335.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Ireland
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
CAR’s powers as aviation regulator were defined in the Aviation Act 2001.
Regulation 261/2004 was transposed into Irish law by means of Statutory
Instrument 274 of 2005, and the power to impose sanctions for non-
compliance with the Regulation are defined in section 45(a) of the Aviation
Regulation Act 2001 as inserted by the Aviation Act 2006. The Statutory
Instrument entitles CAR to issue a Direction instructing it to comply. The
Direction might be a requirement to pay compensation to an individual
passenger or a group of passengers, or to change a policy or practice. Under
the amended Aviation Regulation Act, non-compliance with a Direction would
be a criminal offence and subject to prosecution.
The NEB is able to handle individual complaints from passengers.
Commission for Aviation Regulation (CAR)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
5 FTEs covering Regulation 261/2004 and 1107/2006
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Passengers can contact the NEB without having contacted the airline initially.
However, the NEB strongly encourages passengers to contact the airline first.
The NEB does not require that passengers contact the airline first, as it sees
that there is no legal requirement for them to do so and it cannot refuse to
process their complaint on this basis.
If the complaint is complete, the case is initiated with the airline by setting out
the details of the case in an email and asking the airline to either provide the
passenger with redress in line with the Regulation or to provide evidence to
support any counterargument it may have. The airline has 6 weeks to respond.
Responses are examined and any evidence assessed. It may be necessary to
obtain further information from the passenger, the airline or other sources.
Based on all evidence, the NEB makes a decision whether the evidence upholds
the complaint or not, which is communicated to the airline. If the airline agrees
to abide by the NEB’s decision, then the case is closed. If the airline
either
refuses to assist in an investigation
of a case or to abide by the NEB’s decision
in a case,
CAR has the power to issue a direction under the Aviation Act 2001,
instructing the airline to compensate the passenger. A direction is a legal
enforcement tool of the Aviation Act.
Directions are made on a case-by-case basis, however if the NEB observes a
consistent infringement they might issue a direction that is not based on a
specific individual case. Furthermore, the NEB is also responsible for the
monitoring and oversight of compliance with the Regulation and will monitor if
airlines are providing sufficient information to passengers on their rights and
Enforcement power
of NEB
January 2020 | 309
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0336.png
Study on the current level of protection of air passenger rights in the EU | Final Report
re-routing options in major weather events that do not fall under extraordinary
circumstances.
The NEB does not have the power to apply sanctions directly but would have to
initiate a process in the courts If a court finds that an airline failed to comply
with a direction issued by the NEB, the court has the power to fine the airline.
In theory, the maximum fine is 250,000 EUR which would require the
involvement of a jury. The NEB noted that this is unlikely for such a court
process to be used, hence the maximum fine in practice is 5,000 EUR in a local
district court. This process is found to not be very effective when the airline is
located outside of the Republic of Ireland.
The NEB noted that enforcement is
generally more difficult when dealing with airlines located in other EU/EEA/CH
states. Some airlines do not engage fully, or at all, with CAR. Some Non-EU
airlines clearly disregard the regulations and any directions issued.
Annual report or
activity report
Services to passengers
Communication with
passengers
All complaints are entered into an online complaint system. The complaint
form is available on
www.flightrights.ie.
Following receipt of a complaint, CAR
acknowledges the complaint. If the complaint is incomplete the passenger is
given 6 weeks to provide the necessary evidence to support their case (booking
confirmation, boarding passes, receipts etc).
Regardless of the outcome of an investigation a final letter setting out the facts
of the case and the outcome is sent to passengers before the case is closed.
Length of complaint
processing
261/2004 NEB
cooperation
Number of
complaints received
3
–
6 months
CAR directs complainants to the relevant NEB if it is not competent.
CAR publishes an annual report:
http://www.aviationreg.ie/about-the-commission-for-aviation-
regulation/annual-report.107.html
Activity level for claims under 261/2004
The CAR system uses complaint validation to ensure, as much as possible, that
only complaints that fall within the NEB’s remit can be submitted. Complaints
in remit are those that fall within the responsibility of the Irish NEB instead of
that of another Member State’s NEB.
Not including initial communication, phone calls or emails, officially submitted
complaints:
2018: 2319, of which 2218 were within remit
2017: 1483, of which 981 were within remit
2016: 944, of which 846 were within remit
2015: 1003, of which 719 were within remit
2014: 1153, of which 727 were within remit
2013: 1235, of which 789 were within remit
2012: 807, of which 509 were within remit
2011: 967, of which 545 were within remit
NEB rarely receives more than three or four complaints connected to any single
flight disruption.
Nature of complaints
received
No statistics available but only few complaints related to denied boarding, with
the majority not being upheld.
January 2020 | 310
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0337.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The NEB has noted a number of cases where passengers log a complaint with
the NEB because the airline has denied them compensation but has
compensated other passengers on the same flight.
Outcome of
complaints
2018: compensation payable in 22% of cases
2017: compensation payable in 16% of cases
2016: compensation payable in 46% of cases
2015: compensation payable in 46% of cases
2014: compensation payable in 24% of cases
2013: compensation payable in 15% of cases
2012: compensation payable in 11% of cases
2011: compensation payable in 7% of cases
Of the cases submitted in 2018: 25% of the cases were ongoing in April 2019,
32% were withdrawn or not upheld, and in 16% the airline proved
extraordinary circumstances.
Investigation of
extraordinary
circumstances by the
NEB
When extraordinary circumstances are cited as grounds for not paying
compensation, CAR initiates and investigates the case as usual. The airline is
required to provide evidence, for example Ops Reports, METAR data, NOTAMs,
to support extraordinary circumstances and to explain what reasonable
measures were taken, or why there were no reasonable measures available, to
avoid the disruption.
The evidence
supplied by the airline is verified by independent research or third
parties where necessary.
No sanctions have been issued.
No information.
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
The NEB stated that many passengers appear to assume that they are always
entitled to compensation, and that the NEB’s role is that of passenger
advocate, rather than an adjudicary one. The main trend observed is an ever-
increasing case load, and a consistently high level of cases that ultimately are
not upholdable.
The NEB stated that the increase is linked with increased awareness of rights
under Regulation 261/2004 and of the role of CAR in enforcing those rights, and
not due to a decrease in compliance with the regulation by airlines. Airline
compliance has been observed by the NEB to have improved.
Regulation 1107/2006
National legal basis
EC Regulation 1107/ 2006 was transposed in Ireland via Statutory Instrument
No. 299 of 2008
CAR is able to handle individual complaints from passengers.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers can contact CAR without having contacted the airline/airport first.
Passengers can log a complaint online using the online form
(www.flightrights.ie)
which feeds directly into CAR’s database. The NEB makes
a decision which is issued as a final letter to the passenger. In case of the
airport or airline not abiding with the NEB’s decision or if a systematic
infringement is noted, the NEB can issue a direction against the airline/airport
January 2020 | 311
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0338.png
Study on the current level of protection of air passenger rights in the EU | Final Report
to remedy the situation. If it refuses to do so then CAR can seek to have it
prosecuted for failure to comply with a direction, which is an offence under the
Aviation Act 2001.
Since 2011, only 4 infringements of Regulation 1107/2006 have been recorded
(1 in 2011 and 3 in 2012). All were subsequently rectified without the need to
take further action.
The NEB has attended PRM tender meetings at Dublin and Shannon airports
and is responsible for the Economic Regulation of Dublin airport (including PRM
charges)
Inspections for Regulation 1107/2006 are carried out at all airports annually.
Activity levels for claims under 1107/2006
Claims received
2018: 70, of which 19 were valid with no infringements
2017: 8, of which 5 were valid with no infringements
2016: 18, of which 8 were valid with no infringements
2015: 16, of which 9 were valid with no infringements
2014: 17, of which 8 were valid with no infringements
2013: 16, of which 11 were valid and 3 infringements
2012: 16, of which 9 were valid with no infringements
2011: 21, of which 5 were valid and 1 an infringement
A valid complaint relates to an individual case whereas an infringement is a
systematic non-compliance issue. These figures include some complaints that
do not relate to PRM issues as a result of the way the complaint form is set up.
However, the NEB has observed a notable increase in PRM complaints.
Nature of claims
received
The complaints related to access to onboard toilet facilities and inability to use
the facilities due to insufficient space, and airline policies on assigned seats.
The NEB has noted that airports in Ireland are taking active measures to ensure
that PRMs are adequately cared for. Assistance policies are in place to ensure
that those passengers with hidden disabilities are provided with assistance.
Alternative/Online Dispute Resolution
Overview
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
There is no ADR body in Ireland that covers Air Passenger Rights.
-
-
-
-
-
National small claims procedure (individual procedure)
The Small Claims procedure in Ireland is provided under the District Court
(Small Claims Procedure) Rules, 1997 & 1999 as amended by Statutory
Instrument No. 519 of 2009, Order 53A. The District Court Clerk, called the
Small Claims Registrar, processes small claims.
Approximately 5% of claims received are submitted by claim agencies.
According to the NEB, complaints submitted by claim agencies often lack the
Claim agencies (individual procedure)
January 2020 | 312
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0339.png
Study on the current level of protection of air passenger rights in the EU | Final Report
correct legal documentation. The NEB has had cases where the claim agency
communicates to the passenger that no compensation is received. Passengers
then file an individual complaint and when the NEB contacts the airline it is
informed that compensation was paid.
The NEB currently asks claim agencies to provide documentation to prove that
they have informed the passenger that the NEB will handle individual
complaints for free and the claim agency will collect part of the compensation
received. Many agencies cannot provide such information. The NEB is also
considering adopting procedures where it will reject complaints coming from
claim agencies.
January 2020 | 313
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0340.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Greece
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Aviation Law 1815/1988. Under the state authority, each of the 39 airports has
a passenger rights team which is responsible for the supervision of Regulation
261/2004 and 1107/2006. The passenger rights teams have the ability to
impose necessary sanctions.
NEB accepts individual complaints from passengers.
Hellenic Civil Aviation Authority (HCAA)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Montreal Convention/Regulation 889/2002
4 employees, of which 3 are FTEs looking after Regulation 261/2004
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact the airline first as the NEB is a second order body
only.
The NEB handles complaints on a case-by-case basis. Passengers can fill out a
standardised complaint form online.
When a complaint is received, the NEB will send all supporting documents to
the airline for it to respond within 6 weeks. Two reminders will be sent if no
response is received, allowing for two more weeks and 5 working days,
respectively. The decision issued by the NEB is legally-binding.
The case is sent to the State Authority of each airport for penalty imposition if
either no response is received, or the airline fails to comply with the decision of
the NEB that it has to compensate the passenger. The penalties range from 500
EUR if the airline does not provide the assistance/care outlined in Article 9 of
the Regulation, and 1,000 to 3,000 EUR per passenger for not compensating
according to Article 7 of the Regulation.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
No information provided
The passenger is notified about all correspondence between the Authority and
the airline.
3
–
6 months
The NEB will give contact details of the competent NEB to passengers or
forward the complaint directly if it is not the correct authority.
Activity level for claims under 261/2004
January 2020 | 314
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0341.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Number of
complaints received
2018: 2456 complaints
2017: 1854 complaints
2016: 1367 complaints
2015: 993 complaints
2014: 930 complaints
2013: 798 complaints
2012: 505 complaints
2011: 556 complaints
According to the NEB, the increase in the number of complaints received is a
reflection of the growth in traffic.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
In 2018, the majority of complaints relates to delays (82%), followed by
cancellations (14%), baggage/other (2%) and denied boarding (2%).
95% of received complaints are resolved.
The HCAA asks airlines for proof of extraordinary circumstances, including
METAR data for weather, log book for technical reasons, Eurocontrol
documents for ATC restrictions, and reports from airports in case of closures.
Additionally, the HCAA will also ask its airport-based teams to provide
information about the reason for delays, re-routing, and/or cancellations, as
records are also kept at each airport.
2018: 12 sanctions
2017: 16 sanctions
2016: 27 sanctions
2015: 16 sanctions
2014: 35 sanctions
2013: 15 sanctions
2012: 8 sanctions
2011: 0 sanctions
The NEB notes that most airlines compensate passengers, so sanctions are
rarely required. Most sanctions relate to complaints related to delays.
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
HCAA maintains a presence at airports, with airport-based teams able to
formally and informally observe and record information on disruptions.
The NEB noted that passengers are increasingly aware of their rights,
particularly with respect to compensation, which is driving the increase in the
number of complaints received each year.
Aviation Law 1815/1988
NEB accepts individual complaints from passengers.
Role of the 1107/2006 National Enforcement Body
Passengers have to contact airline/airport first as the NEB is a second order
body only.
When a complaint is received, the NEB will send all supporting documents to
the airline or the airport for it to respond within 6 weeks. Two reminders will
be sent if no response is received, allowing for two more weeks and 5 working
days respectively. If no response is provided or the airline or airport does not
January 2020 | 315
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0342.png
Study on the current level of protection of air passenger rights in the EU | Final Report
meet its obligation under Regulation 1107/2006, the NEB will send the case to
its airport-based teams for the imposition of a penalty.
According to Aviation Law 1815/1988, the sanctions can vary between 500 and
250,000 EUR.
So far, no fines have been imposed on either airlines or airports as the NEB has
not received any complaints that were not satisfactorily addressed.
Activity levels for claims under 1107/2006
Claims received
The number of PRM passengers in Greece has increased from 156,000 in 2013
to 267,000 in 2018.
The number of received claims is low, with two claims per year between 2011
and 2014 and in 2016. Three claims were logged in 2017 and four claims in
2015 and 2018. 80% of the received complaints were assessed to be legitimate.
The NEB notes that the airport infrastructure has been improved as well as the
service provided to PRMs.
Nature of claims
received
Overview
Details
The complaints relate to medical and non-PRM issues. The nature of complaints
also relates to service not being provided properly.
ADR point Greece is an independent, public body.
The ADR has power to impose sanctions and has been handling Air Passenger
Rights issues as of last year. It is authorised to receive complaints from
passengers against airlines which are established in Greece, which is four in
total. The ADR is funded through a mixture of private funding and fees from the
ADR services. ADR point does not issue a decision, but only mediates the case
and occasionally monitors if the agreement is honoured. Services are offered in
six languages (Greek, English, French, Italian, German, Spanish).
The ADR has received less than 50 complaints relating to Air Passenger Rights
so far and takes on average 25 days to reach a solution. In most cases, the
passenger was awarded full compensation.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://www.adrpoint.gr/en/consumers/contact
Not legally-binding
No costs
Fees that range between 50-120€
per
case.
Alternative/Online Dispute Resolution
National small claims procedure (individual procedure)
There is no small claims court procedure in Greece.
Claim agencies (individual procedure)
According to the NEB, complaints from claim agencies have significantly
increased in the last few years, as has the number of claim agencies operating.
35% of complaints received by the NEB are submitted by claim agencies.
January 2020 | 316
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0343.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Spain
Description
National
Enforcement
Body/Bodies
Type of
organisation
Remit of NEB
Other
competencies
within remit
Resources
available
Agencia Estatal de Seguridad Aérea - AESA
(Spanish Aviation Safety & Security Agency)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
ADR body (from late 2019) & Consumer Protection Cooperation (CPC) network
40 FTEs working in complaint management, including 4 managers
Government-funded
Enforcement is undertaken on the basis of Article 37 of the Aviation Security Law (Law
21/2003), as amended by the Law Establishing the State Programme for Operational
Safety in Civil Aviation and modifying Law 21/2003 (Law 1/2011), in particular:
•
Article 37(2)(1) requires airlines to comply with Regulations 261/2004 and
1107/2006; and
Article 37(2)(2) requires airlines to provide immediate and accurate information on
delays, cancellations and passengers’ rights.
AESA is able to handle individual complaints from passengers.
Regulation 261/2004
National legal
basis
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order
body?
Enforcement
power of NEB
As a result of Spanish consumer law, passengers must have contacted the airline
initially. If an unsatisfactory response or no response is received within 30 days,
passengers can contact AESA as a second order body.
When AESA receives a claim, it asks the airline for a report on the incident. All
documentation is assessed and AESA issues a report to the airline and passenger.
Decisions are currently not legally binding. AESA is currently (2019) being designated an
ADR, once the ADR procedure is fully implemented, it will be able to issue legally binding
decisions.
The NEB undertakes system-level enforcement and is able to impose fines to airlines
that do not comply with the Regulation. The legal limits for sanctions are defined in
Spanish law as between 4,500 EUR and 70,000 EUR per infringement. AESA is able to
also fine foreign carriers although enforcement is more difficult for smaller non-EU
carriers.
The NEB’s decision can be appealed in court. The decision is overturned in less than 3%
of cases.
Annual report
or activity
report
Communication
with
passengers
The agency publishes three-year action plans.
Services to passengers
The majority of complaints (90%) is submitted online. Passengers will receive the final
report issued by AESA.
January 2020 | 317
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0344.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Length of
complaint
processing
261/2004 NEB
cooperation
<3 months
AESA forwards complaints if it is not the relevant NEB, with a translation in English.
Although AESA is part of the CPC network, the NEB stated that it has not used it to
enforce or manage complaints (it did receive one case through the CPC once). It also
noted that albeit useful for passengers, NEB-NEB cooperation requires extensive
resources.
2018: 34,279 complaints received, of which 54% were handled
2017: 16,384 complaints received, of which 17% were handled
2016: 17,645 complaints received, of which 16% were handled
2015: 11,342 complaints received, of which 28% were handled
2014: 9,208 complaints received, of which 29% were handled
2013: 9,318 complaints received, of which 30% were handled
2012: 10,882 complaints received, of which 50% were handled
2011: 8,926 complaints received, of which 40% were handled
A complaint form was introduced on the AESA website in 2018 which explains part of
the increase in complaints received. Previously complaints were accepted by post or via
email. Additionally, a high number of passengers in Spain were affected by strikes in
2018.
Activity level for claims under 261/2004
Number of
complaints
received
Nature of
complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances
by the NEB
Delays and cancellations are the main reasons for complaints.
A small number of complaints are solved without AESA’s intervention. Of the complaints
handled by AESA, the majority was solved in favour of the passenger.
The NEB investigates all evidence and documents that airlines provide when claiming for
extraordinary circumstances. Examples also include evidence obtained from official
organisations. Technical issues are only accepted by the NEB if the whole fleet is
affected. Information is requested on a case-by-case basis and the NEB has noted
circumstances where different justifications for extraordinary were received relating to
the same incident.
The NEB clarified that it is working with airlines to improve the quality of documentation
provided for extraordinary circumstances. The NEB is also changing its internal process
to only accept the first submission from an airline on a given incident.
Sanctions
Fines can be imposed if AESA finds that carriers do not comply with the Regulation
under its annual inspection plan.
30% of the inspections result in a fine, which could be as high as 5,000 EUR per flight per
non-compliance.
Inspections and
other relevant
activities
A key task of the NEB’s is the provision of information in
case of mass disruption.
This is supplemented by an inspection program to ensure airlines comply with the
Regulation, including the inspection of evidence such as airlines’ costs for the provision
of care and assistance. Monthly inspections are undertaken at Madrid, Barcelona and
other Spanish airports.
Audits are also undertaken for Regulation 1107/2006. They are announced to airports
but not airlines.
January 2020 | 318
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0345.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Changes in
activity levels
since 2011
AESA states that they feel that passengers still have limited knowledge of their rights
under Regulation 261 but are becoming more aware through the internet and mass
media news.
Regulation 1107/2006
National legal
basis
Enforcement is undertaken on the basis of Article 37 of the Aviation Security Law (Law
21/2003), as amended by the Law Establishing the State Programme for Operational
Safety in Civil Aviation and modifying Law 21/2003 (Law 1/2011).
AESA is able to handle individual complaints from passengers.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order
body?
Enforcement
power of NEB
Passengers with reduced mobility must have contacted the airport/airline initially, as
AESA is a second order body only.
When AESA receives a complaint, it asks the airport/airline for a report about the
incident. After assessing all the relevant documentation, AESA then issues a report
which is sent to both the airport/airline and the passenger.
AESA is currently (2019)
being designated an ADR, once the ADR procedure is fully implemented, it will be able to
issue legally binding decisions.
The NEB undertakes system-level enforcement and is able to impose fines to
airports/airlines that do not comply with the Regulation. The legal limits for sanctions
are defined in Spanish law as between 4,500 EUR and 70,000 EUR per infringement.
Activity levels for claims under 1107/2006
Claims received
AENA airports handled 1.7m passengers with reduced mobility in 2018. The number of
complaints received by AESA relating to Regulation 1007/2006 has been very low:
2018: 26 complaints received
2017: 44 complaints received
2016: 38 complaints received
2015: 27 complaints received
2014: 18 complaints received
2013: 22 complaints received
2012: 18 complaints received
2011: 15 complaints received
Most complaints relate to delays associated with the transfer through the airport as a
result of no pre-notification.
Most claims were decided in favour of the airport/airline.
Alternative/Online Dispute Resolution
Overview
Details
AESA will also act as an ADR body by the end of 2019. The agency is currently in the
accreditation process.
Participation in the ADR will be mandatory for all airlines operating in Spain and
voluntary for airport operators. Refusal to collaborate with the ADR will result in a
penalty. The process will be available both in English and Spanish and passengers will be
able to use the ADR’s decision in court.
https://www.seguridadaerea.gob.es/lang_en/particulares/derechos_pax/default.aspx
The ADR’s
decisions will be legally binding. Compensation payments will have to be
made within one month and airlines will have to provide evidence for the payment.
Nature of
claims received
Contact
Legally binding
January 2020 | 319
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0346.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Costs incurred
in ADR by
passengers
Costs incurred
in ADR by
airlines
Small claims
court
procedure
No costs
No costs
National small claims procedure (individual procedure)
Spain has a free abbreviated verbal court procedure for any claims lower than 6,000
EUR.
Claim agencies (individual procedure)
The NEB noted an increase in the number of complaints it receives from claim agencies.
Claim agencies have also been observed to target passengers who may have been
subject to a flight disruption with marketing materials at airports. The NEB noted that
whereas the claim agencies have been helping to improve the general public awareness
they add a burden to the complaint handling procedure of the NEB. Many claims
received from claim agencies are forwarded to the NEB without checking if all relevant
information is included.
January 2020 | 320
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0347.png
Study on the current level of protection of air passenger rights in the EU | Final Report
France
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
DGAC has been appointed as the French NEB since the entry into force of the
Regulation, but sufficient legal basis for enforcement was only provided in May
2007 with a decree amending the French Civil Aviation Code. Article 330-20 of
the Civil Aviation Code, as amended by this decree, entitles the Minister of Civil
Aviation to impose sanction on carriers for non-compliance with the
Regulation, further to consultation with the Civil Aviation Administrative
Commission (CAAC).
The NEB can handle individual complaints.
Direction générale de l’aviation civile (DGAC)
Civil Aviation Authority
Regulation 261/2004, Regulation 1107/2006
European Consumer Centre (ECC) & ISA for airport charges
DGAC is an expert in the PRM subgroup of the European Civil Aviation
Conference.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers must have contacted the airline initially and wait eight weeks for a
response in order for the NEB to handle their complaint.
When the French NEB receives a complaint via the online form, it is logged as a
case in the internal database. The complaint is reviewed to establish if it falls
within the scope of the Regulation 261/2004. If a complaint is found to be
outside the scope DGAC closes the case and informs and refers the passenger
to other available options, including ADR and court.
In a case where an infringement of the regulation is suspected, DGAC contacts
the operator to gather all necessary information. The airline has around two
months to respond to the NEB and provide evidence that supports their
position. DGAC may also collect data from other sources, including statistical
data and meteorological data.
When the investigation is concluded, DGAC informs the passenger of its non-
binding decision. The NEB will also inform the passenger of alternative options
to obtain redress, including ADR and the courts.
Where the NEB finds non-compliance with Regulation 261/2004, it prepares a
report and notifies the relevant airline by mail. The airline is given a month to
respond. Additionally, DCAG remindes the airline that in the absence of a
response or a response which is not in accordance with the applicable legal
framework, the case will get referred to the French Administrative Commission
of Civil Aviation (Saisine
Commission administrative de l’Aviation Civile
(CAAC)).
The maximum level of administrative fines is 7,500 EUR per non-compliance
per passenger. The statute of limitation for issuing a fine is five years after the
January 2020 | 321
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0348.png
Study on the current level of protection of air passenger rights in the EU | Final Report
incident which has to have occurred on French territory. The Minster of
Transport can decide to sanction the airline depending on the opinion of the
CAAC. Sanctions may become publicly available at the end of the appeal period.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Number of
complaints received
Passengers can complete the online form, which is only available in French.
< 3 months
The French NEB uses the NEB-NEB network. Passengers are informed how to
contact the correct NEB if DGAC is not competent.
2018: 7,717 complaints handled
2017: 5,124 complaints handled
2016: 4,963 complaints handled
2015: 5,777 complaints handled
2014: 5,122 complaints handled
2013: 3,891 complaints handled
2012: 3,204 complaints handled
2011: 3,794 complaints handled
Around 10% of complaints the NEB receives are not legitimate.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Most complaints relate to delays (44%) and cancellations (42%), followed by
denied boarding (6%) and strikes (3%)
For most complaints, passengers are compensated before having to be referred
to the CAAC for sanctioning.
DGAC uses different information sources to assess extraordinary
circumstances, including NOTAM, incident reports, METAR, log books, internal
mails, and Manex. The burden of proof lies with the airline and if it is not able
to provide such convincing evidence, the NEB assesses that compensation is
due.
In certain cases, DGAC may validate information with other organisations,
including air navigation services and civil aviation safety services) or publicly
available weather data (Wunderground.com).
Sanctions
The Minister of Transport issues between four to seven sanctions per year. All
fines are paid. DGAC uses the resources of the French Treasury to recover the
amounts that are due.
Activity level for claims under 261/2004
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
DGAC has been appointed as the French NEB since the entry into force of the
Regulation, but sufficient legal basis for enforcement was only provided in May
2007 with a decree amending the French Civil Aviation Code. Article 330-20 of
the Civil Aviation Code , as amended by this decree, entitles the Minister of Civil
Aviation to impose sanction on carriers for non-compliance with the
January 2020 | 322
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0349.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Regulation, further to consultation with the Civil Aviation Administrative
Commission (CAAC).
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The NEB can handle individual complaints.
DGAC acts as a first order body for PRM passengers who can contact the airline
directly.
See section for Regulation 261/2004.
For PRM cases, one sanction has been issued for refusal to transport and lack of
re-routing a PRM passenger under Regulation 1107/2006 and non-compliance
with the right to compensation for denied boarding under regulation 261/2004.
The fine totalled 22,500 EUR.
2018: 26
2017: 14
2016: 3
2015: 11
2014: 16
2013: 12
2012: 8
2011: 1
Most claims are due to a lack of assistance at airports, followed by denied
boarding.
Tourism and Travel Mediation (Médiation Tourisme et Voyage (MTV))
MTV gives non-binding recommendations on disputes between consumers and
operators for travel, tourism, accommodation, recreation, and transportation.
Its airline members include all French airlines, easyJet, Ryanair, Royal Air
Maroc, Norwegian, KLM, Air Madagascar and Level. Decisions can be used in
court, as long as both parties agree.
In 2018, MTV has received 4,493 complaints (increased from 2,714 complaints
in 2017) related to air passenger rights and has made decisions in 1,203 cases.
It takes on average 60 days for MTV to issue a decision and 94% of those are
accepted.
https://www.mtv.travel/en/
Decisions are non-binding, but the ADR body monitors the response of their
recommendations.
No costs.
The operators signed up to the ADR/ODR body fund its services. The average
cost per case is 75 EUR.
There is a small claims court procedure in France. Claimants are obligated to
have initiated a conciliation attempt or mediation procedures before initiating
a case at the district court. There is a statute of limitations of five years.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
Details
Alternative/Online Dispute Resolution
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
Claim agencies (individual procedure)
January 2020 | 323
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0350.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Croatia
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
According to Article 87 of the Act on Obligatory and Proprietary Rights in Air
Traffic (OG 132/98, 63/08, 134/09 i 94/13), the Croatian Civil Aviation Agency is
the competent national enforcement body for air passengers' rights in line with
Regulation (EC) 261/2004.
The NEB does handle individual complaints from passengers.
Croatian Civil Aviation Agency
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
-
4 FTEs for Regulation 261/2004 and 1107/2006.
Governmentally-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
The Croatian NEB is a second order body. Passengers must first have contacted
the airline in order for their complaints to be handled by the NEB. According to
Croatian law, airlines have to respond to the passenger within 30 days.
Passengers can then contact the NEB if no response or an unsatisfactory
response is received from the airline.
Once a complaint has been submitted, the NEB will then contact the airline to
ask for proof relating to the alleged disruption. The airline has six weeks, and an
additional 2 weeks following a reminder by the NEB, to respond with
documentation. The airline may agree to pay financial compensation or provide
documents to dispute the claim. In the latter case, the documentation is
checked by the NEB which will then write a final non-binding opinion.
According to Act on Obligatory and Proprietary Rights in Air Traffic (OG 132/98,
63/08, 134/09 i 94/13) and Air Traffic Act (OG 69/09, 84/11, 54/13, 127/13,
92/14) the NEB can impose sanctions on air carriers. The fines for the air carrier
range from 20,000 to 50,000 HRK (approx. from 2,700 to 6,700 EUR).
The NEB has not prosecuted or imposed any sanctions on airlines.
Enforcement power
of NEB
Annual report or
activity report
Services to passengers
Communication with
passengers
No information provided.
Passengers can submit a compensation request through a form available on the
NEB’s website or by post or e-mail.
If the carrier agrees to pay compensation,
the passenger will be informed. Alternatively, if the carrier does not agree to
pay compensation, the final opinion that the NEB reaches is communicated to
the passenger.
January 2020 | 324
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0351.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Length of complaint
processing
261/2004 NEB
cooperation
3
–
12 months
Passengers are directed towards the competent NEB in cases where the
Croatian CAA is not the appropriate NEB to handle a complaint. Complaints can
also be forwarded directly from the Croatian CAA to other NEBs upon a
passenger’s request.
The NEB does not use the ECC and CPC Networks. The NEB has received few
complaints in the past three years that were forwarded from the ECC.
Activity level for claims under 261/2004
Number of
complaints received
2013: 39 / 2014: 48 / 2015: 160 / 2016: 169 / 2017: 238 / 2018: 437
The NEB notes that these numbers do not include calls and e-mails received.
The majority of complaints are because passengers do not receive a response
from the carrier within 30 days, rather than cases where the airline disagrees to
pay compensation.
Nature of complaints
received
Outcome of
complaints
The majority of claims relate to delays or cancellations. Only a few are from
passengers who were denied boarding.
Approximately half of the compensation requests were compensated, mostly
through financial compensation for delay or cancellation without the NEB
issuing a final notice. For the other half of complaints, airlines claimed
extraordinary circumstances for around 90% of cases.
The NEB notes that for many complaints, it has been contacted because airlines
have not responded to the initial passenger request within 30 days, as airlines
struggle to handle the high number of claims they receive due to limited
resources., Compensation is then paid directly/straightforwardly when the NEB
contacts the carrier.
Investigation of
extraordinary
circumstances by the
NEB
The NEB investigates different circumstances, such as bad weather conditions,
ATC restrictions, bird strikes, strikes of airline personnel etc.
Airlines are required to provide the NEB with proof of disruption, for example
technical logs, METAR data, and MVT messages.
The NEB notes that it will ask carriers to pay compensation if technical issues
are claimed.
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
No sanctions have been imposed by the NEB yet. The NEB notes that carriers
are generally compliant in paying compensation for a high number of cases.
-
The NEB observed that the number of complaints has been growing rapidly in
recent years. Passengers’ awareness of their rights has increased as a result of
information displayed at airports, on websites of airlines and campaigns
organised at state-level.
According to Article 87 of the Act on Obligatory and Proprietary Rights in Air
Traffic (OG 132/98, 63/08, 134/09 i 94/13), Croatian Civil Aviation Agency is the
competent national enforcement body for the rights of disabled persons and
persons with reduced mobility when travelling by air in line with Regulation
(EC) 1107/2006.
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
January 2020 | 325
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0352.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The NEB can handle individual claims.
The Croatian NEB is a second order body. Passengers must first have contacted
the airline in order for their complaints to be handled by the NEB.
Once a complaint has been submitted, the NEB will then contact the airline or
airport to ask for proof relating to the alleged incident. The documentation is
checked by the NEB which will then write a final opinion.
According to Act on Obligatory and Proprietary Rights in Air Traffic (OG 132/98,
63/08, 134/09 i 94/13) and Air Traffic Act (OG 69/09, 84/11, 54/13, 127/13,
92/14) CCAA can impose sanctions on air carriers. The fines for the air carrier
range from 20,000 to 50,000 HRK (approx. from 2,700 to 6,700 euros).
The NEB undertakes announced and unannounced audits for Regulation
1107/2006 to monitor if the PRM standards are met.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
Usually only one claim received annually in relation to Regulation 1107/2006.
The main reason for complaints is refunds for extra costs incurred by
passengers.
There are eight notified ADR bodies which may handle consumer disputes in
Croatia. Several have the general competence to handle consumer disputes
involving airlines (Court of Honour of the Croatian Chamber of Economy,
Mediation Centre of the Croatian Chamber of Economy, Croatian Mediation
Association, Mediation Centre of the Croatian Employers' Association and
Mediation Centre "Medijator").
The process for the Court of Honour is a two-stage pre-conciliation procedure.
In case the conciliation fails, the case is brought in front of the tribunal which
consists of three members and results in a binding decision. In contrast,
Mediation Centres function on voluntary basis where both parties have to
agree to mediate. Where a settlement is reached, this presents an enforceable
decision which may be presented in Court in case of non-compliance with the
settlement. There are no strict time scales, but in general, the procedure in
front of Mediation Centres lasts for a maximum two months, however, the
procedure in front of the Courts of Honour is longer (sometimes longer than
three months).
https://www.hgk.hr/
Decisions of the Court of Honour are legally binding.
Settlements agree by Mediation Centres are legally enforceable by the courts.
The costs in front of Mediation Centres vary, but the procedure for the
consumers in front of the Court of Honour is free.
No information provided.
Alternative/Online Dispute Resolution
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
A small claims court procedure exists in Croatia. The timescales are the same as
for an ordinary court procedure and costs depend on the value of the claim.
The value of the disputed amount may not exceed HRK 10,000.
January 2020 | 326
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0353.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Claim agencies (individual procedure)
The NEB notes that around half of the claims received are from claim agencies.
Problems relating to the correct documentation of evidence have been noted.
As a result,
the NEB asks claim agencies to provide a copy of the passenger’s
passport, power of attorney, a copy of the boarding pass and proof of contact
with the airline.
January 2020 | 327
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0354.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Italy
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
L’Ente Nazionale per
l'Aviazione Civile (ENAC)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
-
5 FTEs who spend around 40% of their time on Regulation 261/2004 &
1107/2006 in addition to on average 2 quality inspectors at each of the 34
airports
Government-funded
Regulation 261/2004
National legal basis
ENAC’s powers in relation to complaint handling and enforcement were
granted through Legislative Decree 69/2006 of 27
th
January 2006, which came
into force on 21
st
March 2006. The Decree sets out the process that needs to be
followed by ENAC and the fined that have to be imposed.
The NEB uses the complaints it receives from individuals to assess if a carrier
infringes on the Regulation but does not look to obtain compensation for
individual passengers.
The NEB does not enforce individual complaints.
Passengers can lodge their complaint with the NEB via an online form on the
ENAC website. The complaint then gets logged in the NEB’s database and is
processed by the Passenger's Rights & Airport Quality Services Unit. The
complaint will get transferred to the airport where the disruption occurred. An
airport inspector, located at each Italian airport, carries out an investigation to
assess if the regulation was breached by the airline and, if necessary, launch
sanctions. The NEB allows and initial two weeks and then ten additional days
for the airline to respond.
In most cases, the airport inspector confirms extraordinary circumstances. For
all other cases, different sources and documentation are used to come to a
decision, for example the daily path of the relevant aircraft affected by
cancellation or long delay.
Where the investigation finds that the airline wrongfully refused the passenger
compensation, or a trend of non-compliance is observed, ENAC asks for a
meeting with the respective airline. ENAC aims to issue a warning to the airline
in the first place to urge them to improve their compliance. In case the
inspectors find that the airline fails to improve its behaviour, a sanction process
is started. The sanctioning process is defined in the AGA10 internal procedure
and the Legislative Decree n. 69/2006 "Sanctioning provisions for the violation
of Regulation (EC) n. 261/2004".
Sanctions can only be issued to cases where the flight departs from an Italian
airport or the flight arrives at an Italian airport (as its first stop in the EU) and is
a European airline. The maximum value is EUR 50,000.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
January 2020 | 328
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0355.png
Study on the current level of protection of air passenger rights in the EU | Final Report
To ensure transparency, ENAC informs the passenger whether a violation of the
regulation has been found and proceedings will be initiated once a decision has
been made.
Annual report or
activity report
Services to passengers
Communication with
passengers
The complaint form on the ENAC website is available in both Italian and English.
A separate dedicated contact address exists for NEBs and other official
institutions ([email protected]).
Length of complaint
processing
261/2004 NEB
cooperation
6
–
12 months
Passengers are provided with the relevant NEB’s details if the ENAC is
not
competent. Upon request, ENAC will also forward the complaint alongside a
brief summary in English. The NEB has noted some difficulties in the past with
passenger complaints being forwarded by another NEB when the passenger
also separately logs the complaint with the Italian NEB which leads to
additional work and lack of translation for forwarded passenger complaints
from one NEB.
Reference to the ECC Network is provided in all official ENAC documentation
(website, airport posters and leaflets). The NEB has also asked Italian airlines to
reference the ECC network in their Services Charter.
Activity level for claims under 261/2004
Number of
complaints received
2018: 6,033 complaints received, of which 1,642 were found to be legitimate
2017: 4,251 complaints received, of which 1,012 were found to be legitimate
2016: 6,048 complaints received, of which 633 were found to be legitimate
2015: 6,102 complaints received, of which 567 were found to be legitimate
2014: 4,653 complaints received, of which 397 were found to be legitimate
2013: 3,163 complaints received, of which 491 were found to be legitimate
2012: 3,727 complaints received, of which 254 were found to be legitimate
The NEB notes that based on the complaints received it assesses that only 1%
of those eligible to complaint actually do so with ENAC.
The majority of complaints received concern LCCs, with numbers increasing
over the last years. Italian carriers publish complaint figures on their website.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Most complaints relate to delayed flights (55%), followed by cancellations
(41%), denied boarding (4%) and the lack of information (1%).
In most cases, the airport inspector confirms extraordinary circumstances.
Airlines will generally pay redress to the passenger when the NEB issues a fine.
Documentation used to assess the legitimacy of airlines claiming extraordinary
circumstances include airport operative logs and daily reports, ATC reports and
strike communication.
81 sanctions were issued in 2018, totalling to around 262,900 EUR. The number
of sanctions issued in 2018 has increased significantly from the previous year
(23 in 2017). About 60% of issued sanctions are paid by airlines. The remaining
cases go to court but then also result mostly in payment of the fines. No
additional sanction is issued by the court.
ENAC publishes annual reports and traffic data:
https://www.enac.gov.it/en/publications
January 2020 | 329
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0356.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Inspections and
other relevant
activities
Changes in activity
levels since 2011
ENAC airport quality inspectors check data related to delayed or cancelled
flights which is drawn up by the airport managing body. ENAC is also
responsible for the quality of service and PRMs at Italian airports and
undertakes inspections and audits (both announced and unannounced).
Passenger expectations regarding compensation are high as passengers are
increasingly aware about their rights, especially
monetary compensation.
Increased awareness is a result of information campaigns promoted by the
European Commission, and the activities carried out by ENAC. The NEB has
specifically noted an increased number of complaints for monetary
compensation after the Sturgeon Case ruling by the CJEU.
ENAC’s powers in relation to complaint handling and enforcement were
granted through Legislative Decree 69/2006 of 27
th
January 2006, which came
into force on 21
st
March 2006. The Decree sets out the process that needs to be
followed by ENAC and the fined that have to be imposed. Legislative Decree n.
24 from 2009 sets out the rights of PRMs in air transport.
The NEB can handle individual complaints.
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers must have contacted the airline initially in order for the NEB to
handle their complaint.
PRM passengers can lodge a complaint with ENAC through a dedicated e-mail
address ([email protected]) or by using the general online form on the
ENAC website. The enforcement procedure is carried out by ENAC, including
airport quality inspectors and the central unit and follows the same procedure
as for Regulation 261/2004, bearing in mind sensitivities relating to PRM issues.
The outcome of an investigation may lead to actions for operators, passengers
and their organisations regarding information and awareness. The maximum
sanction that can be imposed according to the legislation (Legislative Decree 24
febbraio 2009 n. 24) for denied boarding is 120,000 EUR. Only one sanction for
10.000 EUR has been applied in 2011 against an airport managing body
The airport managing bodies have mandatory quality standards for PRM
assistance in their annual Service Charters, which are monitored by ENAC. The
cooperation with PRM and user representatives in place at Italian airports is
working well.
Activity levels for claims under 1107/2006
Claims received
2018: 5 complaints received
2017: 10 complaints received
2016: 20 complaints received
2015: 21 complaints received
2014: 29 complaints received
2013: 41 complaints received
2012: 6 complaints received
The total number of PRMs carried by airlines in 2018 was 1,2 million. The
number of complaints received is extremely low in comparison, however the
NEB believes that only a small proportion of PRM passengers who have faced
issues submit a complaint.
January 2020 | 330
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0357.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Nature of claims
received
Overview
Reasons for complaints include a lack of ground assistance, denied boarding,
malfunction of arrival and departure points, and a lack of assistance on board.
RisolviOnline provides online mediation and online evaluation for commercial
disputes.
RisolviOnline is only the ODR. ADR is offered by the Milan Chamber of
Arbitration - the operator of RisolviOnline. The ODR is funded partly by the
Milan Chamber of Commerce (20%). Participation in the procedure is voluntary.
The process is only done remotely in either Italian or English.
Since 2002, there have been 108 complaints related to air passenger rights but
none of the airlines in question entered into the proceedings.
Alternative/Online Dispute Resolution
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://www.risolvionline.com/index.php?lng_id=14
The outcome of the ODR is a new contract between the parties which is
binding. RisolviOnline does not monitor compliance.
The consumer will pay online 30 Euros to cover all expenses up to 60,000 Euros.
If the airline accepts to participate in the procedure, they have to pay a fee
which depends on the economic value of the case.
The Justice of the Peace offers a general small claims court procedure for civil
disputes of up to 5,000 EUR. Passengers need to instruct a lawyer to initiate the
procedure. Costs depend on the value of the claim, for instance for claim up to
1,100 EUR, the legal fee is 43 EUR.
The value of the claim is very significantly lower than the necessary cost for
legal expenses, which can discourage passengers from starting legal
procedures.
National small claims procedure (individual procedure)
Claim agencies (individual procedure)
The NEB has noted an increase in the number of passengers seeking redress
through claim agencies.
January 2020 | 331
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0358.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Cyprus
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Judicial Instrument 287/2008. The Cyprus Law, L. 213(I)/2002 and Decree
283/2005 allow for administrative penalties.
The NEB can handle individual complaints.
Department of Civil Aviation (DCA)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
5 FTEs responsible for Air Passenger Rights, not all working full time
Governmentally-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers must have contacted the airline initially and waited six weeks for a
response for the NEB to handle their complaint.
When a complaint is received it is logged and the NEB starts an investigation
where it contacts the airline. Passengers are provided with a final decision
which is non-binding. If the airline does not pay compensation, the passenger
has the opportunity to go to court.
The NEB can issue a sanction where it finds an airline to be consistently non-
compliant with Regulation 261/2004. For cases against EU-carriers, the NEB can
inform the Ministry of Commerce and the EU country licensing authority.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
No information provided
Communication with passengers is mostly through email and complaints can be
submitted via e-mail.
3
–
6 months
The NEB forwards complaints to other NEB in case it is not competent to
handle a complaint.
An average of 350 complaints are received per year, with the majority of those
in scope of Regulation 261/2004 (98%).
Most complaints relate to delays and cancellations.
No information provided
The NEB requests airlines to provide evidence when claiming extraordinary
circumstances, including METARs, NOTAMs, journey logs, flight logs,
Activity level for claims under 261/2004
January 2020 | 332
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0359.png
Study on the current level of protection of air passenger rights in the EU | Final Report
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
operational logs, station reports, flight activity plans, cabin crew flight reports,
aircraft allocation plans, and airport operator flight data.
No sanctions have been issued.
The airports are required to present PRM statistics. In addition, the NEB
conducts audits at airports to ensure compliance with the regulations.
No information provided
No information provided
The NEB can handle individual complaints.
Role of the 1107/2006 National Enforcement Body
PRM passengers can contact the NEB directly.
The DCA initiates an investigation for all PRM complaints where it contacts all
relevant parties. The NEB can impose an administrative fine and can revoke or
suspend a licence as per Article 245 of 213/2002 Civil Aviation Law. The
Minister of Communications and Works may also impose a fine of around 8,000
Euros or a sum equal to 10% of the company's annual turnover. No sanctions
have been imposed yet.
Two complaints received in 2018.
No information provided
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
Alternative/Online Dispute Resolution
ADR bodies exist in Cyprus, such as the Cyprus Consumer Centre for Alternative
Dispute Resolution. However, there is no specific ADR body for air passenger
rights disputes.
-
https://adrcyprus.com/en/
Decision of ADR body is legally binding
A small filing fee of EUR 20 plus an arbitration fee which depends on the value
of the claim.
No information.
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
There is no specific small claims procedure under the legal system of Cyprus.
Claim agencies (individual procedure)
The proportion of complaints received from claim agencies has been around
25% in recent years, however has now decreased to around 10% due to the
NEB asking for more evidence.
January 2020 | 333
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0360.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Latvia
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Section 88 on the Protection of Passenger Rights in the Aviation Law (1994)
defines the Consumer Rights Protection Centre as the competent authority to
enforce Regulation 261/2004.
174
The enforcement of the regime is defined in
the Latvian Administrations Violations Code, which establishes fines for failure
to provide air passengers with information and failure to respect air
passengers’ rights. The NEB is also granted power to fine for failure to comply
with a request for information made in the course of investigating a complaint.
NEB can handle individual complaints.
Consumer Rights Protection Centre (CRPC) & Latvian Civil Aviation Authority
(CAA)
Consumer Protection Body & Civil Aviation Authority
CRPC: Regulation 261/2004
CAA: Regulation 1107/2006
CRPC: Alternative Dispute Resolution (ADR)/Online Dispute Resolution (ODR);
Consumer Protection Centre (CPC) network; and
European Consumer Centre
5 FTEs responsible for Air Passenger Rights and other consumer complaints
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact airline first and wait for two months before the NEB
can handle their complaint.
When a complaint is received by the NEB, it is logged in the internal database.
Information is requested from the airline alongside evidence to support claims
of extraordinary circumstances. During the investigation, the NEB may request
additional information from the airline and/or the passenger and liaise with the
Latvian Civil Aviation Agency and airports for clarification and interpretation
purposes. The NEB considers only CJEU judgements, not case law from other
Member States. Once all the information is gathered the NEB issues a non-
binding recommendation to the passenger.
If the airline disagrees with the NEB’s decision, the passenger has the
opportunity to start an ADR procedure. However, the ADR can only handle
cases where the ticket is bought through the registered representative of the
airline in Latvia. The ADR body also publishes a blacklist of non-compliant
airlines on its website.
The NEB can start an administrative case against an airline in order to issue
sanctions. Fines can only be imposed to those airlines or their representatives
that are registered in Latvia. Maximum limits differ between up to 3,000 EUR
for a lack of information and up to 7,000 for other breaches of the Regulation.
The fine for unfair commercial practices can be as high as 100,000 EUR. System-
174
https://www.vvc.gov.lv/export/sites/default/docs/LRTA/MK_Noteikumi/On_Aviation.doc
January 2020 | 334
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0361.png
Study on the current level of protection of air passenger rights in the EU | Final Report
level enforcement is also undertaken, however the NEB notes that it generally
operates through warnings to airlines instead of issuing sanctions. Yes, there
are limitations on the imposition of sanctions - the amount depends on the
infringement.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Passengers can submit a complaint via a form available in English on the NEBs
website.
< 3 months
The CRPC forwards complaint to competent NEB when applicable but does not
provide a full translation only a summary in English. The NEB is planning to set
up joint meetings with the CAA and airlines in the future to strengthen
cooperation.
2018: 1,527 complaints received
2017: 1,104 complaints received
2016: 264 complaints received
2015: 193 complaints received
2014: 203 complaints received
2013: 233 complaints received
2012: 133 complaints received
Approximately 60% of claims received are legitimate. The number of claims has
increased significantly since 2011. The NEB notes that passengers are more
aware but that a growing number of complaints are due to the high volume of
connecting flights through Riga airport.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
No information provided
No information provided
Airline are asked to provide evidence to support extraordinary circumstance
claims, including information from METAR, EUROCONTROL, and airports. The
NEB may also request information from the Civil Aviation authority, other NEBs
and publicly available information on strikes. Some of airlines provide
information from aircraft manufacturers and flight logs.
One administrative penalty was issued in 2017 against SIA Smartlynx Airlines
for a total amount of 2,500 EUR. The sanction was issued because of a lack of
explanation in response to passenger complaints. The fine was paid.
The NEB undertakes unannounced inspections.
No information provided
Activity level for claims under 261/2004
Number of
complaints received
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
The NEB notes that passengers are increasingly aware of their rights, but there
are still knowledge gaps. A rise in claims from claim agencies has been
observed over recent years.
Section 88 on the Protection of Passenger Rights in the Aviation Law (1994)
defines the CAA as the competent authority to enforce Regulation 1107/2006.
The enforcement of the regime is defined in the Latvian Administrations
January 2020 | 335
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0362.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Violations Code, which establishes fines for failure to provide air passengers
with information and failure to respect air passengers’ rights. The NEB is also
granted power to fine for failure to comply with a request for information
made in the course of investigating a complaint.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
The NEB can handle individual complaints.
NEB is a second order body only. PRMs that cannot obtain an agreement with
the airport can make a complaint to the CAA by filling in a “Disabled Person and
Person with Reduced Mobility Complaint/Comment Form” available on the
CAA’s website and emailing it.
No information provided.
Enforcement power
of NEB
Claims received
Nature of claims
received
Overview
Details
Activity levels for claims under 1107/2006
No information provided
No information provided
Alternative/Online Dispute Resolution
NEB also acts as ADR body and handles complaints that could not be resolved
through the NEB procedure.
The ADR can only handle cases where the ticket is bought through the
registered representative of the airline in Latvia. The minimum and maximum
claim values are 20 EUR and 14,000 EUR respectively. Participation in the ADR
procedure if mandatory for all Latvian carriers (AirBaltic and Smartlynx Airlines)
or those with a representation in Latvia, including Aeroflot, Finnair, LOT,
Lufthansa, SAS, Turkish Airlines and WizzAir. The ADR body publishes a blacklist
of non-compliant airlines on its website and can impose an administrative
penalty for non-cooperation.
There were 58 ADR cases since 2016, with the process taking on average
between two and three months. In total, 46 decisions were made by the ADR
body, all in favour of the passenger and all were respected by the airlines. The
ADR communicates in Latvian and English.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
http://www.ptac.gov.lv/en/content/air-passenger-rights
Not binding but the decision can be used by the passenger in a court process.
No cost
No cost
National small claims procedure (individual procedure)
A small claims court procedure exists in Latvia. The passenger must complete
and submit a form to court. Small claim procedure can be used only if
passenger is a resident in Latvia, the airline or its representatives are registered
in Latvia, and the claim does not exceed 2,500 EUR.
There are currently two registered claim agencies in Latvia.
Claim agencies (individual procedure)
January 2020 | 336
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0363.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Lithuania
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
No information provided
NEB can handle individual complaints.
Role of the 261/2004 National Enforcement Body/Bodies
Lithuanian Transport Safety Administration (LTSA)
Transport administration
Regulation 261/2004 & Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
3 lawyers and 2 supervisors (80%) work on Air Passenger Rights within LTSA
Government-funded
Passengers have to contact the airline first and wait for two months for a
response before the NEB handles their complaint.
The NEB registers a complete and legitimate complaint on the internal
database an instigates and investigation. An inquiry is sent to the airline as well
as any other relevant entities, including the ANSP and groundhandling if
necessary to cross-check information. The data is investigated which may
require the involvement of other CAA specialists. When the investigation is
finished, the NEB issues a non-binding conclusion. The NEB will inform the
passenger of the option to go to court if they are not content with the decision.
The NEB may consider prosecuting an airline or impose a sanction in a number
of cases. Either upon the passenger request on the basis of a violation of their
rights, or in cases where the airline is found non-compliant with respecting the
air passenger rights of a large group of passengers thus causing wider
repercussions in society, or where the NEB notes non-compliance with the
requirements of the regulation.
According to the Code of Administrative Offenses of The Republic of Lithuania,
sanctions are applied to the head of the company or the individual responsible
for the passenger rights within the company. Sanctions for an infringement of
the Regulation 261/2004 can be as high 850 EUR. For repeated non-compliance
within a year, the NEB can issue a penalty as high as 8,300 EUR. LTSA
furthermore has the authority to restrict or refuse airline’s permits to operate
flights in case of non-compliance with the Regulation 261/2004, according to
Paragraph 36.7 of the Rules of Organization of the Air Space of the Republic of
Lithuania. However, the NEB notes that the sanctioning process is complicated
because according to the Lithuanian administrative procedures only an
individual within the airline, instead of the company itself is fined and required
to travel to Lithuania for the process. Sanctions in Lithuania are therefore not
believed to be effective, proportionate or discouraging.
Annual report or
activity report
No information provided
January 2020 | 337
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0364.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Passengers can send a complaint form, which is available for download in
English and Lithuanian on the LTSA’s website.
< 6 months
For complaints received in English, the NEB forwards the case to the competent
NEB. If the complaint is in Lithuanian, the passenger is advised to complain
directly to the competent NEB and given the correct contact details. Passengers
are informed that the Lithuanian NEB does not provide a translation service.
2018: 421 complaints received, of which 222 were legitimate
2017: 244 complaints received, of which 156 were legitimate
2016: 266 complaints received, of which 157 were legitimate
2015: 115 complaints received, of which 67 were legitimate
2014: 139 complaints received, of which 49 were legitimate
2013: 95 complaints received, of which 32 were legitimate
2012: 88 complaints received, of which 44 were legitimate
2011: 65 complaints received
Most complaints are due to delays or cancelled flights, with very few
complaints for denied boarding.
Out of all conclusions issued in favour of the passenger, the majority (94% in
2018 and 96% in 2017) were accepted by air carriers.
The NEB investigates all extraordinary circumstances with requesting
supporting documents, for instance technical logs, technical reports, orders for
maintenance, flight logs, flight plans, METARs, and/or ANSP statements. For
cases where the airline cannot provide any proof of extraordinary
circumstances, the NEB concludes that these have not been proven.
Only one sanction over 300 EUR was issued in 2017 which was paid in full.
The NEB undertakes audits to ensure compliance with PRM rights which are
announced in advance.
The Lithuanian CAA previously acted as the NEB, but all functions have since
been transferred to the LTSA. The NEB notes that most passengers are still not
familiar with their rights before the travel, even though awareness has
increased since 2011. The NEB has noticed strong compliance of traditional
airlines and some more limited compliance of LCCs.
No information provided
NEB can handle individual complaints.
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Role of the 1107/2006 National Enforcement Body
PRM passengers can contact NEB directly.
The NEB uses an administrative handling of complaints and will contact the
airport and/or airline to receive clarification information on the issue. Following
the investigation, the passenger is informed on the outcome and any measures
that will be taken to improve the situation in the future. Sanctions can be issues
January 2020 | 338
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0365.png
Study on the current level of protection of air passenger rights in the EU | Final Report
following the same process as for Regulation 261/2004. No sanctions have
been issued for Regulation 1107/2006 yet.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
The number of complaints from PRMs is very low, with only one complaint
received annually in 2013, 2017 and 2018.
PRM complaints are due to a lack of assistance provided to the passenger at
the airport. The NEB notes that over the last years the quality of service have
been improved with new equipment and improved PRM infrastructure.
Airports are required to report on the assistance to PRM under the approved
standards every quarter.
The ADR process is applied by the State Consumer Rights Protection Authority
The procedure takes on average 22 days and does not require the presence of
the parties and/or their representatives. Participation in the ADR procedure is
not mandatory for airlines and only one airline which is registered in Lithuania
takes part. The minimum claim value is 10 EUR.
In 2017, 24 complaints related to air passenger rights were received in 2017.
This increased to 32 complaints in 2018. The ADR made decisions for six and
ten disputes during those two years respectively and all passengers were
awarded full compensation in all cases.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
http://www.vvtat.lt
The decision is binding but can be appealed within 30 days to the court of
general competence.
No costs
No costs
Alternative/Online Dispute Resolution
Overview
Details
National small claims procedure (individual procedure)
There is small claims court procedure in Lithuania. The passenger can submit
their claim to the court.
The NEB notes that claim agencies are active in Lithuania, especially in recent
years where they have represented an increasing proportion of all complaints
received by LTSA (13.4% in 2017 and 21.6% in 2018).
Claim agencies (individual procedure)
January 2020 | 339
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0366.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Luxembourg
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The Consumer Code (Code de la Consommation) incorporates the existing legal
provisions in consumer law. The Code, introduced by a law of 8 April 2011, has
been the subject of several reforms. Article L. 311-4 defines the authority
looking after consumer protection as the competent enforcement body for
Regulation 261/2004.
The NEB can handle individual complaints.
Ministry of Economy & Direction de l'Aviation Civile (CAA)
Ministerial body & Civil Aviation Authority
Ministry of Economy: Regulation 261/2004
Civil Aviation Authority: Regulation 1107/2006
Ministry of Economy: Consumer Protection Cooperation (CPC) network &
European Consumer Centre (ECC)
No information provided.
Government-funded.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers must have contacted the airline initially.
The NEB logs the complaint on its internal database and starts an investigation.
Once completed, the NEB will issue its decision to the passenger and informs
him of the possibility to appeal in court.
The NEB has informed us that the existing legislation in Luxembourg does not
define a sanction process for non-compliance with Regulation 261/2004. This
contradicts what is stated in Article L. 311-9 of the Consumption Code. The
article suggests that as the competent authority, the NEB has the power to
order an air carrier to compensate/reimburse the passenger within one months
in accordance with Article 7, Article 8, and Article 9, and to enforce compliance
with Articles 10, 11 and 14 of the Regulation. Non-compliance with the final
decision of the NEB can be punished with a fine ranging from 251 EUR to
50,000 EUR.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
No information provided.
No information provided.
3
–
12 months
Complaints are not transferred, instead the passengers is provided with the
contact details for the competent NEB.
Activity level for claims under 261/2004
January 2020 | 340
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0367.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Number of
complaints received
2018: 543 complaints received
2017: 242 complaints received
2016: 147 complaints received
2015: 128 complaints received
2014: 99 complaints received
2013: 97 complaints received
2012: 58 complaints received
2011: 52 complaints received
Around 25% of complaints are not legitimate.
Most complaints are due to delays and cancellations.
No information provided.
The NEB investigates extraordinary circumstances on the basis of requested
evidence, including flight report, log station, METAR. Depending on the specific
situation, the NEB can also contact the airport or the weather service of the air
navigation administration.
-
No information provided.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
The NEB notes that it believes passengers are more aware and better informed
of their rights. It also describes a difference in the level of compliance, as some
airlines are well organised and quick to respond to passengers whereas others
either do not respond to inquiries or always cite extraordinary circumstances.
No information provided.
According to the list of National Enforcement Bodies under Regulation EC
1007/2006, published by the European Commission, the Civil Aviation Authority
is the responsible enforcement body for the PRM regulation. Despite multiple
contact attempts, we have not had any engagement with the CAA.
No information provided.
No information provided.
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
Overview
Role of the 1107/2006 National Enforcement Body
Activity levels for claims under 1107/2006
No information provided.
No information provided.
Alternative/Online Dispute Resolution
The National Service of the Consumer Ombudsman is a qualified entity
competent to receive out-of-court claims for consumer disputes.
(https://meco.gouvernement.lu/fr/legislation/consommation.html)
January 2020 | 341
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0368.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Details
The Ministry of the Economy additionally publishes a list of qualified entities for
out-of-court settlement on their website
175
. The Ombudsman receives all
applications for ADR of consumer disputes and, if another entity entered on the
list kept by the Ministry of the Economy is competent to deal with the dispute,
forwards the application to that entity without delay. If no other entity is
competent to deal with the dispute, the Ombudsman helps the parties find an
amicable solution to the dispute. Participation is voluntary.
https://www.mediateurconsommation.lu/
Not legally-binding unless both parties agree.
No costs
No costs
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
There is a simplified procedure for the recovery of claims up to a threshold of
10,000 EUR under Luxembourg law, known as the ‘order for payment’
(ordonnance de paiement). An alternative is to apply for a summons (citation)
to appear before a justice of the peace. The differences between the order for
payment procedure before a justice of the peace and the application to the
District Court for a provisional payment order is that the proceedings before
the justice of the peace may culminate in a full judgment, whereas proceedings
before a District Court can lead only to a court order.
There is only one claim agency which is based in Luxembourg, called Trafundo
S.A.
Claim agencies (individual procedure)
175
https://meco.gouvernement.lu/dam-assets/l%C3%A9gislation/legislation/consommation/Liste-des-
entites-qualifiees-au-25062018.pdf
January 2020 | 342
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0369.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Hungary
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Hungarian Aviation Authority (CAA) within the Ministry for Innovation and
Technology (ITM), the Consumer Protection Bodies (CPBs), and The Equal
Treatment Authority
Civil Aviation Authority, Consumer Protection Body and Equal Treatment
authority
ITM & CPBs: Regulation 261/2004
The Equal Treatment Authority: Regulation 1107/2006
CAA: Montreal Convention/Regulation 889/2002
CPB: Consumer Protection Cooperation (CPC) network
The ITM employs 2.5 FTEs handling Air Passenger Rights, between the three
CPBs there are around 40 FTEs who handle Air Passenger Rights as part of their
wider competencies.
Government-funded
Regulation 261/2004
National legal basis
Aviation Act XCVII/1995. On the basis of the 166/2007(VI.28.) Gov. Decree, the
National Transport Authority became the successor of the Military Aviation
Office from July 2007.
The Consumer Protection Bodies are the enforcement body for individual
complaints. Because the ITM is listed as the Hungarian NEB on the list
published by the European Commission it also receives complaints which are
then forwarded to the relevant CPB.
The ITM does not undertake individual enforcement
The Consumer Protection Bodies are the NEB of the first instance. Passengers
are advised to contact the airline first but are not obliged to.
The Ministry does not have enforcement powers for individual complaints and
compensation. The CAA within the Ministry provides oversight and monitors
for any wide-spread, systemic infringements of the regulation. In cases where it
does observe system-level non-compliance, it can ask a Consumer Protection
Body to investigate. The Ministry conducts meetings with the Consumer
Protection Body to discuss the behaviour of airlines. The CAA is also responsible
for approval of the general rules of carriage for the airlines operating in
Hungary, which contain aspects on air passenger rights. Even though the
Ministry does not handle individual enforcement, it is listed as the Hungarian
NEB on the list published by the European Commission. The ILT has informed us
that this is done to avoid confusion about which Consumer Protection Body to
turn to, especially for international passengers.
There are 20 government offices in Hungary, representing the 20 regions in the
country. The local National Enforcement Bodies are embedded within the
Consumer Protection Body of each office. There are three CPBs that are
responsible for Air Passenger Rights, determined by the territory of the
airports. Passengers can contact the relevant CPB directly with their complaint
or alternatively contact the ITM which will forward the complaint to the
competent NEB.
When it receives a complaint, the CPB starts an investigation of the complaint.
The CPB can turn to the CAA within the Ministry for an assessment of a claim of
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
January 2020 | 343
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0370.png
Study on the current level of protection of air passenger rights in the EU | Final Report
extraordinary circumstances. The CPB issues a binding decision upon conclusion
of its investigation. In cases where airlines do not comply with the CPB’s
decision, a sanction can be issued. The maximum limit for a fine is 500 million
Forints (approx. 1.5 million EUR). The administrative procedure is difficult to
enforce with foreign carriers and thus all cases have been against Hungarian
LCCS. Airlines can appeal the decision. The Ministry has also noted that the
administrative procedure is complex, and they use communication with the
airline as an initial step towards compliance.
Annual report or
activity report
Services to passengers
Communication with
passengers
The ITM notes that when it receives individual complaints related to regulation,
it will generally forward them to the Consumer Protection Body or the
competent Member State. However, for simple cases where the airline has
already agreed that a passenger is entitled to compensation but has not paid,
the NEB will mediate the cases directly instead of forwarding the complaint to
the CPB.
3
–
6 months
The CAA and CPB have regular meetings to discuss the compliance and
behaviour of airlines. The CAA forwards around 60% of complaints it receives to
either the CPB or other competent NEBs in different Member States.
CAA: 600 complaints received in 2018, of which 60% are forwarded to the
competent CPB. The NEB notes that complaints are very seasonal and have
gone up by 10% since 2017. Only a few cases are related to air safety and the
majority is driven by compensation requests.
CPBs: 370 complaints received in 2018 of which 70% fall within the scope of the
regulation.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
No information provided.
Role of the 1107/2006 National Enforcement Body
Most complaints that that the CPBs receives are due to delay (65%), followed
by cancellations (25%) and denied boarding (5%).
50% of complaints are decided in favour of the passenger.
The Consumer Protection Bodies contact the Hungarian Aviation Authority for
the evaluation and establishment of extraordinary circumstances.
Documentation to be provided by the airlines includes METAR data and
technical flight logs
150 sanctions have been issued by the Consumer Protection Bodies.
The CPBs undertake inspections for the airports that fall within their territory.
No information provided.
Length of complaint
processing
261/2004 NEB
cooperation
Activity level for claims under 261/2004
Number of
complaints received
Passengers are more aware of their rights, but still some details are still not
known such as exemptions and thresholds.
January 2020 | 344
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0371.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The PRM NEB can handle individual complaints from passengers. If the NEB is
not relevant, it will forward the complaint to the relevant NEB and inform the
passenger of the action in English, as well as German and French, if required.
Passengers do not have to contact the airline first before being able to submit a
complaint with the NEB.
The investigation of complaints which is carried out by the Authority runs in the
course of a public administration procedure under Act CXXV of 2003 on Equal
Treatment and Promotion of Equal Opportunities and Act CL of 2016 on
General Public Administration Procedures. According to the anti-discrimination
law, the Authority has the obligation to investigate a complaint where a
passenger states that they suffered a disadvantage due to one or more of they
protected characteristics (disability or health condition).
The Authority establishes the relevant facts of the case, defines the means and
extent of the evidentiary procedure, and assesses the evidence available at its
own discretion. Evidences may include client statements, relevant documents,
testimonies of witnesses, results of inspections and expert opinions.
If the Authority establishes that the complainant has been discriminated
against, it makes a legally binding decision as a quasi-judicial body and it can
impose sanctions. If it is proved in the course of the procedure that the person
or organization placed under the procedure violated the principle of equal
treatment, the Authority may order that the state of infringement be
terminated, may forbid the continuation of the violation, may order that its
final decision declaring the infringement be made public, may impose fine from
HUF 50 thousand (approx. EUR 160) to HUF 6 million (approx. EUR 20,000), as
well as may decide on the procedural cost in a way that it must be covered by
the offending party.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
The Authority receives approximately ten to fifteen requests concerning air
passenger rights per year.
Even though it is only responsible for Regulation 1107/2006, the Equal
Treatment Authority receives a relatively large number of complaints
concerning flight delays and cancellations, i.e. on issues under Regulation No.
261/2004.
For the majority of requests concerning rights of PRMs apart from some
requests via e-mail the Authority - in the absence of a concrete complaint to
that effect - has not conducted any proceedings in connection with rights of
passengers with reduced mobility so far. The Authority has not had to
investigate a case investigating whether a person with reduced mobility was
discriminated against in the course of his or her stay at the airport or as a
consequence of the action or the omission of the airport or the air carrier.
Alternative/Online Dispute Resolution
Overview
Alternative Dispute Resolution and Online Dispute Resolution is offered by the
twenty ADR bodies, each covering a different region within Hungary. They are
not aviation specific but cover all aspects of consumer protection.
The Conciliatory body of Budapest covers disputes relating to Budapest airport.
The procedure is done in Hungarian only and takes an average length of 45
days.
http://www.bekeltet.hu/
Details
Contact
January 2020 | 345
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0372.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
Not legally binding
No costs
No costs
National small claims procedure (individual procedure)
Hungarian law has not had a special small claims procedure since 1 January
2018. Before, small claims had been governed by Act III of 1952 on the Code of
Civil Procedure which was repealed by Act CXXX of 2016 on the Code of Civil
Procedure, with effect from 1 January 2018.
No information provided
Claim agencies (individual procedure)
January 2020 | 346
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0373.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Malta
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Malta Competition and Consumer Affairs Authority (MCCAA) &
Civil Aviation Authority (CAA)
Competition authority & Civil Aviation Authority
MCCAA: Regulation 261/2004
CAA: Regulation 1107/2006
MCCAA: The Complaints and Conciliation Directorate within the MCCAA acts as
the residual ADR/ODR entity. The MCCAA is also part of the Consumer
Protection Cooperation (CPC) framework and the European Consumer Centre
(ECC).
MCCAA: 1 FTE responsible for complaint handling under Regulation 261/2004
CAA: No information provided
Government-funded
Regulation 261/2004
National legal basis
Civil Aviation Act (Chapter 232) which regulates aviation in Malta, in
combination with the European Union Act (Chapter 460) through which all EC
Regulations relating to air transport become legal in Malta, and any provision
of any other legislation incompatible with such EC Regulations is without effect
and unenforceable.
NEB accepts individual complaints from passengers.
Resources available
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact airline first as NEB is a second order body only.
Complaints are handled through the Authority's Complaint Handling System
(CHS). The NEB will investigate each case and issue a non-binding
recommendation. If the airline does not pay the compensation following the
NEB’s recommendation, passengers will get referred to the ADR body. MCCAA
is in the process of getting the get the ADR
procedure set up within the NEB’s
structure. The NEB is not undertaking enforcement at a system-wide level but
instead deals with individual cases only. Both CJEU judgements and case law
from other Member States is taken into account during the investigation.
MCCAA notes that it has attempted to cooperate with airports through
proactively requesting delay information, however this is not taken up largely.
The NEB can issue a sanction in case of a breach of the Regulation as per
Subsidiary Legislation 378.14. However, to date these were never applied
against airlines. Limitations apply as sanctions can only be issued to airlines
who are registered in Malta (for instance Air Malta, Lufthansa and Turkish
Airlines). For cases where the airline only operates a ticket office, such as
Vueling, the infringement case would have to be referred to the competent
NEB in which the airline is registered. The maximum fine that can be issued
under a civil proceeding is 47,000 EUR.
Annual report or
activity report
No information provided
January 2020 | 347
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0374.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Number of
complaints received
Passengers can submit a complaint on the MCCAA’s website using a complaint
form which is available in English and Maltese.
3
–
6 months
The Maltese NEB cooperates with other NEBs under the NEB-NEB procedure.
Cross-border cases are transferred to the ECC.
2018: 102 complaints received
2017: 93 complaints received
2016: 87 complaints received
2015: 137 complaints received
2014: 174 complaints received
2013: 159 complaints received
2012: 80 complaints received
2011: 132 complaints received
The majority of complaints is due to delays or cancellations (98% in 2018).
There are only a few complaints related to denied boarding.
The NEB noted an increase of claims that are not legitimate where they have
received unclear or inaccurate information related on eligibility of
compensation from advisory websites or claim agencies. Increasingly, airlines
will require passengers to claim their expenses retrospectively following
disruption instead of handing out vouchers.
In 2017, around 5,000 EUR of compensation was paid.
Evidence to support an extraordinary circumstance claim is requested from the
airline. The official technical reported provided by the Civil Aviation
Department is the main source used to justify the legitimacy of extraordinary
circumstances.
No sanctions have been issued yet.
The NEB has tried to work with the national airport and carrier to obtain delay
information directly to allow for a more proactive approach to complaint
handling. Whereas this exchange of information has been successful with the
airline, it has proven more difficult with the airport.
The NEB notes that consumer awareness has led to higher expectations from
passengers, since they are more aware of their rights and how to exercise
them. The number of yearly complaints has remained fairly constant which
shows a commitment on the part of airlines to comply with their obligations.
Civil Aviation Act (Chapter 232) which regulates aviation in Malta, in
combination with the European Union Act (Chapter 460) through which all EC
Regulations relating to air transport become legal in Malta, and any provision
of any other legislation incompatible with such EC Regulations is without effect
and unenforceable.
NEB accepts individual complaints from passengers.
Activity level for claims under 261/2004
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
January 2020 | 348
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0375.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact airline first as NEB is a second order body only.
The NEB will impose sanctions when it has evidence that an airline/operator is
not complying with what is required under the Regulation 1107/2006 after it
has been warned about non-compliance by the NEB.
According to subsidiary legislation 499.50 Civil Aviation (Rights of Disabled
Persons and Persons with Reduced Mobility), sanctions can be issued. The fines
range from 232.94 EUR to a maximum of 2,329.37 EUR. No sanction have been
issued yet.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
Details
None
-
Alternative/Online Dispute Resolution
The Complaints and Conciliation Directorate within the Office for Consumer
Affairs
The Complaints and Conciliation Directorate within the Office for Consumer
Affairs is a public entity designated to perform the function of a residual ADR
body. The procedure has an average length of 30 days and is conducted orally
and in writing and the physical presence of the parties or their representative
may be required.
https://mccaa.org.mt/Section/Content?contentId=3214
It is binding upon agreement by one or both parties
No cost
No cost
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
The Small Claims Tribunal where individuals can submit a claim through an
application at the Registrar of the Civil Courts. The Small Claims Court has
jurisdiction to hear monetary claims of up to 5,000 EUR.
The majority of complaints (70%) that the NEB receives are submitted by claim
agencies.
Claim agencies (individual procedure)
January 2020 | 349
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0376.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Netherlands
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The enforcement in the Netherlands is defined by the following legislation:
•
Instellingsbesluit
Inspectie Verkeer en Waterstaat
(Resolution to set up the
Transport and Water Management Inspectorate), Article 2, paragraph 1,
item d;
•
Wet
luchtvaart (Civil Aviation Act), section 11.2.1 (administrative
enforcement by the Ministry of Transport):
•
Article 11.15(b)(1) defines the right to take action in respect to
reparable breaches;
•
Article 11.16(1)(e)(1) defines the right to impose administrative
fines for irreparable breaches; and
•
Article 11.16(1)(3)(e) defines the maximum level of penalties for
irreparable breaches.
•
Algemene
wet bestuursrecht (General Administrative Law Act), Chapters 4
(process) and 5 (level of fines) in respect to penalties for reparable
breaches.
Beleidsregel passagiersrechten en boetecatalogus (Dutch policy/penalty
procedure): defines approach to sanctions and administrative fines which will
be imposed
176
The Dutch NEB can handle individual complaints but as a result of a procedural
change can no longer enforce individual compensation. The procedure was re-
evaluated following the Ruijssenaars judgement of the CJEU in 2016.
Passengers must have contacted the airline initially and wait six weeks for a
response.
The enforcement powers of the Dutch NEB have changed since 2012, due to
several judgements which differentiate between regular complaints and
enforcement requests. Regular complaints result in a non-binding decision,
whereas enforcement requests result in a binding decision which can be
appealed.
Until 2012, the NEB handled all complaints as “enforcement requests”.
Between 2012 and 2016, complaints could be handled as either a “regular
complaint” or an “enforcement request”, depending on the passenger’s
preference.
Since 2016, all complaints are assessed as “regular complaint”
resulting in a non-binding recommendation. Therefore, the number of
Human Environment and Transport Inspectorate (Inspectie Leefomgeving en
Transport (ILT))
Inspectorate within the Ministry of Infrastructure and Water Management
Regulation 261/2004, Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
7 FTEs who spend around 40% of their time on Air Passenger Rights
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
176
Order issued 7 September 2011
January 2020 | 350
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0377.png
Study on the current level of protection of air passenger rights in the EU | Final Report
complaints has reduced over the years. A reason for the change in procedure is
that for “enforcement requests”, the
NEB was obligated to pay a fine to the
claimant or representative, including claim agencies, if it did not respond within
indicated timeframes.
Once a complaint is received, the NEB assesses it to confirm it falls within the
scope of Regulation 261/2004 and then starts an investigation. The NEB uses
case law from other Member States in addition to judgements from the CJEU
during its investigation.
The ILT has noted a lack of compliance from certain airlines that are aware of
the limited enforcement power of the NEB. In those cases where the airline
does not follow the NEB’s recommendation, the only option for passengers to
obtain compensation is to turn to the civil courts.
There are two types of sanctions, reparatory and punitive sanctions that can be
applied on the basis of non-compensation or on the basis of a lack of care,
information or assistance. Reparatory sanctions are more forward-looking as
they are aimed to improve the wider behaviour and encourage compliance
going forward. A reparatory sanction consists of an order or warning, backed
up by a penalty. Punitive sanctions act like a fine for individual cases and can
therefore be seen as reactive for a specific case of non-compliance. The NEB
notes that sanctioning is difficult as a result of the way the Regulation is written
in the context of the Dutch legal system where the burden of proof lies with the
NEB. Especially for reparatory sanction it is generally difficult to retrospectively
obtain evidence for aspects such as the requirement to ask for volunteers
before denying boarding.
There is no maximum amount for reparatory sanctions, but the value of the
financial penalty is set at a level to discourage continued non-compliance. For
punitive sanctions the maximum amount is between 83,000 EUR.
Annual report or
activity report
Services to passengers
Communication with
passengers
The Dutch NEB operates an information centre, comparable to a hotline that
passengers can call in the first instance to obtain information on necessary
steps, for instance contacting the airline. Passengers can submit their complaint
via an interactive online form. Before March 2019, paper forms had to be
submitted instead.
3
–
6 months
Complaints for which the NEB is not competent are forwarded to the relevant
NEB with a short summary. Passengers are also provided with the contact
information of the national enforcement body of each the Member State.
2018: 1,529 complaints received
2017: 1,194 complaints received
2016: 1,362 complaints received
2015: 1,736 complaints received
2014: 2,038 complaints received
2013: 2,424 complaints received
2012: 2,600 complaints received
2011: 2,923 complaints received
No information provided.
Length of complaint
processing
261/2004 NEB
cooperation
Activity level for claims under 261/2004
Number of
complaints received
January 2020 | 351
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0378.png
Study on the current level of protection of air passenger rights in the EU | Final Report
2010: 5,833 complaints received
The decrease in the complaint numbers is due to a change in the complaint
handling procedures which is explained in further detail in the enforcement
section. The NEB notes that there were some issues with double counting
complaints in earlier years that have now been addressed.
Only around 27% of the complaints received are found to be legitimate.
Nature of complaints
received
Outcome of
complaints
The main reasons for complaints are delays and cancellations. Complaints have
become more complex, especially in relation to connecting flights.
The NEB notes that there is generally good compliance from KLM, TUI and
Corendon Dutch Airlines who respond to the NEB’s recommendations
and pay
compensation. Other airlines do not follow the Dutch NEB’s recommendation
as they know that they have limited enforcement power.
In the case of an airline claiming extraordinary circumstances, the NEB requests
evidence in the form of weather and/or meteorological conditions, en-route
ATC restrictions, deviation delays, IATA delay codes, aircraft registration
number, METAR, NOTAM or ACARS messages, and/or media announcements.
There were two punitive sanctions in 2017, six in 2018, and five in 2019. Not all
sanctions are final yet as some are still open for appeal. Sanctioning on the
basis of systematic non-compliance with the Regulation is possible through
reparatory sanctions and has been enforced once against Vueling in 2016 but
has subsequently been dropped following the judgement of the Council of
State in 2018. All issued sanctions have been paid by airlines.
The NEB undertakes around ten inspections annually, mostly focusing on
Schiphol airport in Amsterdam. However, the NEB is planning to do fewer
inspections going forwards. Inspections at Schiphol are unannounced whereas
audits at smaller airports are usually announced.
The Dutch NEB notes that passengers seem to be more aware of their rights
and most airlines have put good processes in place for passenger complaints
via specifically designed forms on their websites. A change in compliance has
been observed following the TUI/Nelson judgement in 2012 and the van der
Lans judgement in 2015 for airlines that were previously reluctant to pay
compensation in case of a delay or technical problems.
Sanctions can be imposed based on the Act on Aviation (Articles 11.15 and
11.16) and the General Administrative Law Act (Title 5 'Enforcement').
The NEB can handle individual complaints.
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers must have contacted the airline initially.
All PRM complaints are registered on the internal database. The NEB will
respond to each complainant and additionally ask for a statement from the
airline and/or airport. The NEB has instructed a number of airports and airlines
to improve their compliance and issued a fine of 9,000 EUR against one airline
in 2018 for non-compliance with Article 11 of Regulation 1107/2006.
The NEB is also working to develop an administrative fine catalogue for
Regulation 1107/2006.
January 2020 | 352
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0379.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Activity levels for claims under 1107/2006
Claims received
In the period from 2011 to 2018, the Dutch NEB has received 28 complaints
regarding PRM issues. Of those, eight were found to be legitimate, eleven were
found to be outside of the scope of the Regulation and the remaining
complaints were forwarded to other NEBs.
Complaints have related mainly to seating arrangements on the plane and
damage to medical equipment and wheelchairs.
There is no specific ADR body for air passenger complaints in the Netherlands.
Although general consumer ADRs exists, airlines are not obliged to accept
passenger complaints coming via the ADR body.
-
-
-
-
-
Nature of claims
received
Overview
Alternative/Online Dispute Resolution
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
For general claims in civil court there are sub-district courts for claims up to
€25,000 where legal
representation is not obligatory. Passengers have to
subpoena the airline via a County Court bailiff (costs are around 80 EUR) and
pay court fees (between 80 and 230 EUR). 95% of the cases in the sub-district
courts are handled within 1 year.
In the period from 2010 until 2019, around 34% of the complaints that were
filed with the Dutch NEB were submitted by claim agencies. There is a trend of
an increased number of smaller claim agency start-ups since 2015.
Claim agencies (individual procedure)
January 2020 | 353
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0380.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Austria
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Agentur für Passagier- und Fahrgastrechte (APF)
Statutory arbitration and enforcement body
Regulation 261/2004, Regulation 1107/2006
ADR and ODR body, Consumer Protection Cooperation (CPC) network
5 FTEs to cover complaints under Regulation 261/2004 and 1107/2006
Funded pro rata (€78 per claim) by contribution from the companies involved in
the arbitration procedure in addition to the Federation
Regulation 261/2004
National legal basis
Defined in §139a of the Luftfahrtgesetz (LFG). The other relevant legislation is
the Alternative-Streitbeteiligung-Gesetz 2015/105 (AStG).
The NEB can handle individual complaints.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Passengers must have contacted the airline initially and wait six weeks for a
response in order for the NEB to handle their complaint. APF can only handle
complaints concerning airline registered in Austria or flights from/to an
Austrian airport.
Passengers can submit a complaint via the online complaint form on the NEB’s
website. Once received, the NEB will start by liaising with the complainant on
any open questions and collecting missing before starting the arbitration
procedure and contacting the company. When the NEB receives a statement
from the airline, it can either contact the airline again in case of unclarities or
make its decision. The NEB considers both legal texts and rulings from the CJEU
and case law from other member states within the EU, especially Germany. The
outcome of the arbitration solution is communicated to the complainant and
the case is closed. In case of possible infringements concerning both Regulation
261/2004 and 1107/2006, APF will send a formal report to the responsible
authorities and inform the supervisory authorities. In 2018, 14 cases were sent
to the responsible authorities.
According to Austrian law, the complaint is then filed with the local panel
authority against the CEO of the relevant airline. Because most airlines want to
avoid panel proceedings and court procedures the number of sanctions is low.
Additionally, the NEB informed us that according to the Austrian Flight Act,
people lose their pilot’s license through a panel proceeding. As a number of
CEOs do possess a license, they will avoid starting such a proceeding.
The APF can also investigate and file a complaint with the local authority based
on more general system-wide level of non-compliance. However, the NEB has
informed us that in most cases complaints are based on individual cases.
Enforcement power
of NEB
Annual report or
activity report
Services to passengers
Annual report on passenger APF’s activities across all modes is published here:
https://www.apf.gv.at/de/publikationen.html
January 2020 | 354
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0381.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
APF accepts complaints via an online form available on its website. The forms
are designed in German and English and can be completed in either language.
APF communicates with passengers in German or English.
< 3 months
The Austrian NEB will inform passengers of the competent NEB and relevant
contact details or, upon request, forward the complaint directly with a short
summary in English. The NEB notes however that it has become increasingly
difficult for passengers to find the correct entity to handle their complaint
which can cause frustration, especially on ADR.
2018: 5,462 complaints handled, of which 2,770 led to a closed arbitration
procedure*
2017: 2,977 complaints handled, of which 1,719 led to a closed arbitration
procedure
2016: 2,404 complaints handled, of which 1,482 led to a closed arbitration
procedure
*The NEB has informed us that a high number of cases were not closed by the
end of 2018 and will therefore fall into the 2019 figures of closed procedures.
Of all complaints received, 63% could not be handled by the NEB as it was
either non the competent NEB, it was found that the passenger had not yet
contacted the airline or there was missing documentation. The increase in the
number of complaints received in 2018 is due to the high level of disruption
observed across the European airspace in the summer. Another factor for the
increase is a higher level of passenger awareness due to the media.
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
The dominant reasons for complaints in 2018 have been cancellations (49,5 %),
followed by delays (45,6 %), denied boarding (4,5 %) and other reasons such as
PRMs or downgrading (0,4 %).
Only 4% of airlines did not agree with the APF’s decision in 2018. 79% of
handled complaints let to an agreement between passenger and airline. The
remaining 17% of cases were closed without agreement, mainly due to
extraordinary circumstances.
The amount of compensation obtained for passengers by the NEB in 2018
totalled 1,12 Million Euros.
In case of non-agreement,
passengers can use the NEB’s decision in court
proceedings to support a potential court case against the airline.
Investigation of
extraordinary
circumstances by the
NEB
APF has a so-called
“Formblatt” which it asks airlines to complete in addition to
providing supporting document for proving extraordinary circumstances.
The NEB has built up some internal guidelines on what they do and do not
understand to be extraordinary circumstances, for example strikes or debris on
the runway (before the CJEU made a judgement on this).
The NEB cannot impose fines directly as this can be only done through the
responsible authorities. The maximum fine defined for an individual complaint
is 22,000 EUR. For cases with aggravated circumstances, the court can also
sentence a prison sentence of up to six weeks.
The NEB does undertake announced inspections, mostly at Vienna airport.
However, due to the high case load in 2018, no inspection took place, and this
will instead be done in 2019.
Sanctions
Inspections and
other relevant
activities
January 2020 | 355
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0382.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
In 2018, the Supreme Court of Austria issued a decision - OGH 1 Ob 133/18t
–
concerning the re-routing of passengers
177
. The ruling states that airlines are
required to re-route passengers on competing airlines.
The Luftfahrtgesetz (LFG) defines APF as the NEB in charge for non-compliance
with the PRM Regulation 1107/2006.
The NEB can handle individual complaints.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
Overview
Details
Passengers must have contacted the airline initially in order for the NEB to
handle their complaint.
See section on enforcement power for Regulation 261/2004.
Activity levels for claims under 1107/2006
In total the NEB only receives a small number of complaints concerning PRMs.
In the last three years this was around 25 cases.
No information provided.
Alternative/Online Dispute Resolution
The Austrian NEB, the Agentur für Passagier- und Fahrgastrechte, is also the
relevant ADR/ODR body.
There is no minimum claim value for passengers to be able to use ADR,
complaints have to regard flights either to/from an airport in Austria or flights
with an Austrian carrier. Airlines are legally bound to take part in the ADR/ODR
procedures, which causes the relatively low numbers of cases passed on for
sanctioning.
The decision of the ADR body is communicated to both parties involved in the
arbitration
process. If one party does not accept the APF’s proposed solution,
the case will be terminated by a conclusive, non-binding and non-contestable
recommendation. Passengers are then able to use the ADR’s decisions in court
proceedings if they wish to. Typically, German is the main processing language,
but the ADR has also processed complaints in English, French and Spanish in
the past.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
https://www.apf.gv.at/de/kontakt-apf.html
Not legally binding, unless both parties agree to the proposed solution in which
case it is deemed as an effective extrajudicial settlement.
No costs for passengers
Airlines contribute to every formally opened arbitration procedure with a fee of
€78. This accounts for about 40% of the cost of the ADR body, the other 60%
being governmentally-funded.
National small claims procedure (individual procedure)
177
https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20180829_OG
H0002_0010OB00133_18T0000_000
January 2020 | 356
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0383.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Small claims court
procedure
There is no small claims court procedure in Austria; the Austrian Code of Civil
Procedure only provides for a simplified procedure for small claims before
District Courts.
In 2018, just over 5% of the complaints received were submitted by claim
agencies. In 2019 this number has increased to 10.3% so far. The NEB asks
claim agencies to provide a document signed by the passenger which also
specifies that the service is offered by the NEB at no cost.
Claim agencies (individual procedure)
January 2020 | 357
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0384.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Poland
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Commission on Passengers’ Rights, Passengers’ Rights Ombudsman & Civil
Aviation Authority
Consumer Protection Body (sitting within the CAA) & Civil Aviation Authority
Commission on Passengers' Rights & Passengers’ Rights Ombudsman:
Regulation 261/2004
Civil Aviation Office: Regulation 261/2004 & Regulation 1107/2006
Alternative Dispute Resolution, Online Dispute Resolution
No information provided
Government-funded
Regulation 261/2004
National legal basis
The procedure for dealing with complaints is based on the Polish law: the
Aviation Act (Articles 205a, 205b, 205c, 209a, 209b) and the Administrative
Procedure Code. The procedure has changed from 1 April 2019 so that currently
all the complaints received by the CAA are dealt with by the Ombudsman.
According to Article 209b (1) and (2) of the Aviation Law, the President of the
CAA is required to impose fines on airlines for each infringement.
The NEB used to handle individual complaints, now they are proceeded
through the ADR procedure.
Passengers have to complain to the airline first before the NEB can handle their
complaint.
The Commission on Passengers’ Rights (CPR) was designated by the President of
the Civil Aviation Authority as its unit to enforce the Regulation. CPR, acting in
the name of the President of the CAA, undertakes duties specified in Article 16
of the Regulation. In particular it checks air carriers’ compliance with the
principles of the Regulation and handles passengers’ complaints. Alongside the
CPR works the
Passengers’ Rights Ombudsman, who is responsible for
handling
cases of possible infringements in the Alternative Dispute Resolution (mediation)
procedure.
CPR makes an investigation regarding the alleged infringement of the Regulation,
informs the parties about the commencement of the investigation, requests
evidence and explanation from the carrier, and informs the parties about the
opportunity to participate in each stage of proceedings.
Until 1 April 2019, the President of the CAA issued a decision for each case to
state whether there was an infringement of the Regulation or not. In case of an
infringement, the President would request the airline to address it within 14 days
and impose fines on the airlines for each infringement. Airlines could appeal
against the decision within 14 days with the second decision (the first if there is
no appeal) then becoming binding. According to Polish law a fine must be
imposed for every infringement which is recorded, even a minor, technical
infringement. Although the procedure has changed, all complaints sent to the
CAA before 1 April 2019 are still proceeded in this manner.
Other competencies
within remit
Resources available
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
January 2020 | 358
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0385.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Since 1 April 2019 the complaint handling procedure has been transferred to
the Ombudsman, the ADR body appointed by the President of the Civil Aviation
Authority which is based in the Civil Aviation Authority. The procedure of the
Ombudsman is described further in the ADR section below. In contrast to the
CAA’s complaint handling procedure, the Ombudsman does not issue binding
decisions.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Passengers can submit a complaint via an online form available in English and
Polish on the Passengers’ Rights Ombudsman website.
6
–
12 months
The CRP used to forward complaints that were within the jurisdiction of other
NEBs using the rules as prescribed in the Administrative Procedure Code. The
Ombudsman does not have this power.
2018: 10,281 complaints received
2017: 7,124 complaints received
2016: 5,980 complaints received
2015: 5,402 complaints received
2014: 4,640 complaints received
2013: 3,540 complaints received
2012: 4,021 complaints received
In 2018, the majority of complaints (77%) were due to delayed flights, followed
by cancellations (18%). The number of cases relating to denied boarding (1%)
and other reasons (4%) was substantially lower.
In the years 2012-2019, approximately 70% of valid complaints resulted in a
positive outcome for the passenger, including those where agreement was
reached with the airline before CPR issued a decision.
Until 2019 the NEB issued a binding decision which could be appealed by the
airlines. In case of an appeal, a second instance decision was issued by the
President of the CAA.
2018: 618 second instance decisions issued
2017: 861 second instance decisions issued
2016: 418 second instance decisions issued
2015: 438 second instance decisions issued
2014: 589 second instance decisions issued
2013: 813 second instance decisions issued
2012: 416 second instance decisions issued
Investigation of
extraordinary
circumstances by the
NEB
The main types of documentation that airlines are asked to provide are aircraft
technical documentation and METAR documentation. In all cases where the
carrier claims extraordinary circumstances, the claims are investigated by
appropriate departments of the CAA such as the Technical Department
(Airworthiness) or Operational
Department depending on the reason of the
cancellation (technical or meteorological). On the basis of their opinion, a ruling
was made by the President of the CAA as to whether there was an infringement
of the Regulation.
The Ombudsman does not investigate extraordinary circumstances.
Statistic information is gathered for internal use only.
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
January 2020 | 359
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0386.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Sanctions
The President of the CAA imposed sanctions in any case where non-compliance
with passenger rights were noted. Generally, a fine of 1,000 Polish złoty (PLN)
was imposed (approx. 250 EUR) per passenger. Between 2012 and 2019, the
total amount of fines issued were as follows:
2018: 3,066,650 PLN
2017: 2,416,600 PLN
2016: 499,200 PLN
2015: 800,500 PLN
2014: 1,252,150 PLN
For a previous study, the CPR informed us that it undertakes regular
inspections at airports, approximately 10 each year, to verify compliance with
Article 9 and 14.
Since 2011 the complaint volume handled by the NEB has increased
significantly. Complaints submitted before 1 April 2019 which are still handled
under the old Administrative Procedure, take up all the time of the employees
of the CPR. Each employee has approx. 1,300 to 1,500 cases to work on at any
given time.
The procedure for dealing with complaints is based on the Polish law: the
Aviation Act (Articles 205a, 205b, 205c 209a, 209b) and the Administrative
Procedure Code.
According to Article 209b (1) and (2) of the Aviation Law, the President of the
CAA is required to impose fines on the airlines for each infringement.
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The NEB can handle individual complaints.
Passengers have to complain to the airport or the operator first before the NEB
can handle their complaint.
The President of the CAA is a competent authority for the cases related to the
Regulation. The Commission
on Passengers’ Rights (CPR) was designated by the
President of the Civil Aviation Authority as its unit to enforce it, including
carrying out inspections.
The number of complaints received is very small, especially in comparison to
the number of complaints submitted under Reg. 261/2004. In the time period
from 2016 to 2019 the CAA only received two complaints per year.
Since April 2019 there is a special ADR body that handles with passenger
complaints
– the Passengers’ Rights Ombudsman which is appointed by the
President of the Civil Aviation Authority and is based within the Civil Aviation
Authority.
The
Ombudsman aims to amicably resolve consumer disputes in an out-of-court
proceeding. The ADR body will help both parties in reaching an agreement but
does not issue decisions.
As part of the ADR procedure, both parties have the right to participate in the
proceedings, including presenting points of view, documents and evidence, to
Activity levels for claims under 1107/2006
Claims received
Alternative/Online Dispute Resolution
Overview
Details
January 2020 | 360
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0387.png
Study on the current level of protection of air passenger rights in the EU | Final Report
use third
parties’ assistance, and to withdraw from the proceedings at any of its
stages.
Contact
Legally binding
https://pasazerlotniczy.ulc.gov.pl/en/amicable-proceedings-before-the-
ombudsman
The Ombudsman’s decision is not binding even if both parties agreed to the
proposed solution. Passengers can still go to court if they are not content with
the out-of-court resolution reached. The statement of claim which is lodged
with the common court should contain information whether the parties
undertook attempts of mediation or other out-of-court manner of dispute
resolution and if such attempts were not undertaken, an indication of a reason
for not doing so (Article 187 § 1 of the Code of Civil Procedure).
No costs
No costs
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
A simplified procedure exists in the Polish law. It is governed by Articles 505
1
to
505
14
of the Code of Civil Procedure.
No information is provided on the proportion of claims received from claim
agencies.
Claim agencies (individual procedure)
January 2020 | 361
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0388.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Portugal
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Autoridade Nacional da Aviação Civil (ANAC)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Consumer Protection Cooperation (CPC) network
6 FTEs working on Air Passenger Rights issues
Governmentally-funded but independent from the budget as funds received
through security and licensing charges.
Regulation 261/2004
National legal basis
Decree Law No. 209/2005 creates the penalty regime applicable to Regulation
261/2004 and defines ANAC as the responsible body to enforce compliance
with the provisions of the Decree.
NEB can handle individual complaints.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact the airline first before the NEB handles their
complaint.
When ANAC receives a complaint it first confirms that the passenger has
already contacted the airline, all information is provided and that the complaint
falls within the scope of the Regulation. The airline is then notified and asked to
provide and explanation for the occurrence, including evidence for
extraordinary circumstances. The NEB may refer to CJEU judgements and case
law from other Member States during their investigation. Following the
completion of the NEB’s investigation, ANAC informs the passenger
of their
non-binding decision and will close the case.
In cases where ANAC finds that the passenger is due compensation, ANAC asks
the airline to provide a confirmation of the transfer but does not follow up.
ANAC notes that passengers will normally contact the NEB again in case they do
not receive compensation.
In cases where an airline disagrees to pay compensation or the passenger is not
content with the NEB’s recommendation, the NEB will provide the passenger
with information of potential options, such as ADR and the courts. When ANAC
finds an airline to not comply with the regulation, for instance by not agree
with the NEB decision, it cannot directly issue a sanction but is able to refer the
case to the legal department which in turn can issue a sanction or take the
airline to court.
Sanctions can be as high as 150,000 EUR and are issued on a case-by-case basis.
The NEB does not undertake system-level enforcement.
Annual report or
activity report
Services to passengers
ANAC publishes annual reports on their website:
https://www.anac.pt/vPT/Generico/Paginas/Homepage00.aspx
January 2020 | 362
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0389.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Passengers can submit a complaint via an online form on the ANAC website.
The NEB communicates with passengers in Portuguese, Spanish and English.
3
–
6 months
The NEB cooperates with the ADR body to improve passenger rights within
Portugal as it notes a current lack of awareness.
Complaints for which ANAC is not competent will be forwarded to the relevant
NEB.
2018: 13,885
2017: 10,907
2016: 8,032
2015: 7,355
2014: 9,881
2013: 7,264
2012: 6,165
2011: 6,454
Of the complaints received, around 60% are within the scope of Regulation
261/2004. Increased traffic and strike or weather conditions have contributed
to a strong rise in passenger complaints. ANAC assumes that still only 0,2% of
passengers submit complaints.
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Most complaints relate to delays, followed by flight cancellations, issues around
luggage, and denied boarding.
In 2017, the NEB assessed a number of cases related to the fuel disruptions at
Lisbon airport. The NEB found that these cancellations to be not caused by
extraordinary circumstances as airlines were informed about the problem.
Outcome of
complaints
In the NEBs experience, airlines operate at meaningful national level generally
do their best to comply with Regulation 261. In the specific aspects where the
Regulation is not clear enough, or courts have contradictory decisions,
interpretation issues arise.
Airlines are asked to provide evidence, for instance METAR data. For some
cases, ANAC may refer to its internal experts to support interpretation of the
data.
The NEB notes that small airlines operating hopper-services between the
Portuguese islands might often cite extraordinary circumstances due to fast-
changing weather conditions. Technical failures are generally not considered to
be extraordinary circumstances.
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Cases that were sent to the legal department for possible sanctioning have
increased in recent years. In 2016 it was only three cases, increasing to 178 in
2017 as a result of the Ryanair strikes. In 2018 there was 71 cases that were
forwarded to the legal department. One airline was sanctioned in 2017 and
other sanctions have been applied in previous years.
ANAC undertakes two unannounced inspections annually at the main airports
and will communicate any issues to the airport management or groundhandling
companies. In the past, the NEB has also made spontaneous airport visits in
times of disruption, such as a high number of cancellations at Porto airport, to
talk to passengers and airline representatives.
Inspections and
other relevant
activities
January 2020 | 363
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0390.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Changes in activity
levels since 2011
The NEB believes that passengers know that they have rights but still lack
information on the specific circumstances of those rights. Over the last three
years the awareness has improved, indicated by the increase in the number of
complaints received.
Decree Law No. 254/2012 states the conditions for implementing the legal
regime of Regulation 1107/2006 and defines ANAC (previously known as INAC)
as the responsible body for compliance and inspection, as well as the penalties
applicable for non-compliance.
PRM complaints are handled by the ANAC. However, we have not received
relevant inputs from the person responsible for Regulation 1107/2006 despite
several attempts to establish contact.
No information provided.
No information provided.
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
Overview
Details
Activity levels for claims under 1107/2006
No information provided.
No information provided.
Alternative/Online Dispute Resolution
The Direção-Geral Consumidor website provides information on all ADR bodies
in Portugal.
There are 10 centres in Portugal, 7 of regional general competence (Lisbon,
Porto, Coimbra, Guimarães, Braga / Viana do Castelo, Algarve and Madeira), 1
national centre (CNIACC) and 2 specialised for automotive and insurance
disputes. Only a few airlines are enrolled in the ADR bodies and there is a
general lack of awareness of the ADR services. Passengers tend to use the court
system instead.
https://www.consumidor.gov.pt/
No information
Either no or reduced costs.
No information
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
A small claims entity exists for cases with a monetary limit of 15,000 EUR;
however, it is not formally a court. The costs for the procedure are relatively
low, especially if compared to a regular court procedure. The timescale for the
process is less than 6 months.
The NEB estimates that less than 25% of received complaints are submitted by
claim agencies. However, a large proportion (80%) of complaints are found to
be not legitimate.
Claim agencies (individual procedure)
January 2020 | 364
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0391.png
Study on the current level of protection of air passenger rights in the EU | Final Report
January 2020 | 365
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0392.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Romania
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Decision no. 1912/2006 lays down measures to ensure the application of
Regulation 261/2004 and repeals Regulation 295/91.
The NEB can handle individual complaints.
National Authority for Consumer Protection (ANPC) & Ministry of
Labor, Family and Social Protection National Authority for People with
Disabilities (Autoritatea Nationalǎ Pentru Persoanele Cu Handicap (ANPD))
ANPC: Consumer Authority
ANPD: Equality Body
ANPC: Regulation 261/2004 & Montreal Convention/Regulation 889/2002
ANPD: Regulation 1107/2006
ANPC: Alternative Dispute Resolution (ADR) body and Consumer Protection
Cooperation (CPC) network
No information provided
No information provided
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers can contact the NEB as a first order body without having
complained to the airline first.
Once a complaint is received, it is verified by the commissioner to which the
case has been assigned. A response is requested from the airline within 10
days, including supporting documents as evidence in case of extraordinary
circumstances. A non-binding decision is issued to the passenger following the
conclusion
of the investigation. If the passenger is not content with the NEB’s
recommendation, they can turn to the court to solve the dispute with the
airline.
Under Romanian legislation, non-compliance with Regulation 261/2004 is
considered a contravention. The NEB can issue a sanction, with the amount
varying according to the number of affected passengers. ANPC notes
communication problems with airlines that do not have a legal representative
on Romanian territory which is also reflected in the way the regulation is
implemented and the ability to sanction a carrier in the event of non-
compliance.
Annual report or
activity report
Services to passengers
Communication with
passengers
The NEB publishes annual activity reports on its website:
http://www.anpc.gov.ro/categorie/22/rapoarte-de-activitate
The NEB only accepts complaints that are submitted in writing an sent to the
headquarters of the County Commissariats for Consumer Protection or to the
Bucharest Consumer Protection Commissariat. A template complaint form is
available on the website in Romanian and English.
< 3 months
The ANPC forwards complaints for which it is not competent to the relevant
NEB, alongside a brief summary of the case.
Length of complaint
processing
261/2004 NEB
cooperation
January 2020 | 366
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0393.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Activity level for claims under 261/2004
Number of
complaints received
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
Overview
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
No information provided.
No information provided.
Role of the 1107/2006 National Enforcement Body
Between 2011 and 2018, the NEB received 3,141 complaints in total, of which
1,948 were related to non-compliance with Regulation 261/2004.
Approximately 60% of complaints were legitimate.
No information provided.
No information provided.
The airline is requested to provide evidence, including weather reports, aircraft
movement documents to see the exact time of departure, flight reports, and/or
proof of assistance.
In 2017 and 2018, the NEB issued 20 sanctions for non-compliance with
Regulation 261/2004. All fined were paid by the airlines.
No information provided.
The NEB notes that as a result of the information campaigns in the past 3 years,
passengers have become more aware of the rights.
No information provided.
No information provided.
Activity levels for claims under 1107/2006
No information provided.
No information provided.
Alternative/Online Dispute Resolution
The Alternative Dispute Resolution Directorate sits within the ANPC.
-
http://www.anpc.ro/
Not legally binding
No cost
No information provided
National small claims procedure (individual procedure)
Articles 1025-1032 of the new Code of Civil Procedure, which entered into
force in 2013, regulates the small claims procedure. The article states that the
value of the claim must not exceed RON 10,000 (approx. 2,100 EUR).
January 2020 | 367
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0394.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Claim agencies (individual procedure)
The NEB notes an increase in claim agencies over the last years that are
specifically well represented online.
January 2020 | 368
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0395.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Slovenia
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Bylaw 2005-2411-0066 implements Regulation 261/2004, following its
publication in the Official Gazette of the Republic of Slovenia, No. 51/17.
According to Article 179.i of the Aviation Act, the CAA is responsible for
regulatory tasks specified by aviation regulations, applicable for or used in the
Republic of Slovenia.
NEB can handle individual complaints.
Slovenian Civil Aviation Authority
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Consumer Protection Cooperation (CPC) network & European Consumer Centre
(ECC)
1.5 FTEs working on Air Passenger Rights issues but looking to recruit more
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Passengers have to contact the airline first and wait for two months before the
NEB can accept their complaint.
When a complaint is received, the NEB logs it in its internal database (Lotus
Notes program) and assesses if it is the competent authority. If not, the
complaint is forwarded to the correct NEB. For all other cases the NEB starts a
minor offence procedure against the airline. A statement is sent to the airline,
including a request for a response and relevant evidence. The NEB investigates
the information provided to assess whether an infringement with Regulation
261/2004 has taken place.
In cases were no minor offence is found, the procedure is concluded. Where
the NEB finds non-compliance, it will issue a binding decision which includes a
fine or a warning to the airline. Fines can range from 500 to 20,000 EUR. The
NEB does not have the power to enforce compensation for the individual
passenger but undertakes enforcement with the aim to improve wider-level
compliance with the Regulation. Nevertheless, enforcement can only be done
on the basis of an individual complaint, and not for systematic non-compliance
across a
longer timeframe. The airline has the option to appeal the NEB’s
decision in court, but most airlines agree to pay the fine (80%). Once the
decision becomes final and enforceable, the NEB refers the case to the tax
authority for enforcement. When a case is closed in the Lotus Notes program,
the decision is entered in the record of minor offenses, which the NEB is
obliged to keep in accordance with the Minor Offence Act.
The NEB notes that the enforcement of sanctions is problematic for non-EU
carriers and some EU carriers. This is because of difficulties with the delivery of
documentation, making the process long, time-consuming and often
unsuccessful. By law, the fine issued by the NEB goes to the airline’s
government instead of the airline itself. Procedures against EU carriers can also
January 2020 | 369
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0396.png
Study on the current level of protection of air passenger rights in the EU | Final Report
be ineffective where the airline does not respond. The NEB then has the
possibility to enforce the sanction through the competent courts, but the
process presents an administrative burden for the NEB which is seen as
disproportionate to the amount of the fine.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Number of
complaints received
A link to a template complaint form from the European Commission is available
on the NEB’s website.
3
–
6 months
When the NEB receives complaints for which it is not competent, it forwards
the complaint with a summary in English to the relevant NEB.
2018: 337 complaints received
2017: 149 complaints received
2016: 146 complaints received
The NEB estimates that around 70% of eligible passengers claim for
compensation. The proportion of legitimate complaints from those received is
estimated to be around 40%. More than half of the complaints the NEB
receives are in other languages and have to be translated into Slovenian (the
official language for proceedings).
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Most complaints are due to cancelled flights, delays, followed by denied
boarding (4%), a lack of information about passenger rights, and/or a lack of
response from the airline.
No information provided.
For each case, the carrier is given the opportunity to make a statement and
submit evidence to prove extraordinary circumstances. The NEB verifies the
accuracy and credibility of the documents, including NOTAM, ATM SLOT,
METAR, TAF, and technical log books.
Sanctions are issued in the majority of decisions. For a small number of
decisions only had a warning issued to the airline. In 2018, the total amount of
fines issued was 40,081 EUR and all fines were paid.
The NEB undertakes regular audits four to five times a year to check
compliance with Regulation 1107/2006.
According to the NEB, passengers are increasingly educated about their rights
and more demanding for their complaints to be solved quickly. The number of
complaints rises from year to year which is viewed as positive.
Over the past two years, the NEB has however also observed a trend of
increasing non-compliance of airlines with Regulation 261/2004, notably for
compensation payment, passenger care, flight delays and cancellations. The
NEB believes this to be a result of the enormous increase in air traffic volume
and a growing rate of passenger claims to airlines (with an increase of 120% in
the last year).
Regulation 1107/2006
No information provided.
Activity level for claims under 261/2004
Inspections and
other relevant
activities
Changes in activity
levels since 2011
January 2020 | 370
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0397.png
Study on the current level of protection of air passenger rights in the EU | Final Report
National legal basis
Bylaw 2010-2411-0002 implements Regulation 1107/2006, pursuant to the
fourth paragraph of Article 134 of the Aviation Act. The official consolidated
test was published in the Official Gazette of the Republic of Slovenia, No.
81/10.
NEB can handle individual complaints.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
PRMs have to contact the airline first before the NEB can accept their
complaint.
See enforcement for Regulation 261/2004.
According to the Implementing Regulation no. 106/2010, the NEB can issue
sanctions to carriers and airports. The maximum fine is 60,000 EUR. No cases
have been assessed under this regulation yet.
No claims have been received under Regulation 1107/2006 yet.
-
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
Details
Alternative/Online Dispute Resolution
ADR bodies exist, but participation is not mandatory, and the ADR decisions are
not binding.
The complaint can be submitted in Slovenian and English language. As airlines
have to pay a fee for the procedure, they usually do not participate in ADR
processes.
-
Not legally binding
No costs
From 50 EUR per case
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
A small claims court procedure exists in the Slovenian legal system, regulated in
the thirtieth chapter of the Code of Civil Procedure (ZPP). The claim may not
exceed a value of 2,000 EUR and the procedure is conducted before a district
court. Consumers can apply for free legal aid if they fulfil the conditions set out
in the Free Legal Aid Act (ZBPP). The judgment of the small claims procedure is
announced immediately after the end of the main hearing. The judge can make
a written judgment with a long explanation or only a summary explanation. The
cost of the procedure is dependent on the success of the procedure.
Two claim agencies operate in Slovenia which account for around 40% of
complaints received by the NEB.
Claim agencies (individual procedure)
January 2020 | 371
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0398.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Slovakia
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Slovak Trade Inspectorate
Consumer and Competition Authority
Regulation 261/2004, Regulation 1107/2006 & Montreal Convention /
Regulation 889/2002
Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR),
Consumer Protection Cooperation (CPC) network, and national market
surveillance
2 FTEs for the NEB & 2-3 FTEs within the ADR dealing partly with Air Passenger
Rights
Government-funded
Regulation 261/2004
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Amendment to the Civil Aviation Act no. 143/1998
NEB is able to handle individual complaints.
Role of the 261/2004 National Enforcement Body/Bodies
Passengers have to submit a complaint to the airline first before the NEB
accepts their complaint.
Once a complaint is received, it is
registered in the NEB’s database. During the
investigation phase, the airline is contacted as well as the passenger if any
information is missing. Upon concluding the investigation, the NEB will inform
the passenger of its non-binding decision. Compliance
with the NEB’s
recommendation is dependent on the airline. Passengers can take their case to
court if the airline does not comply. The NEB is also the competent ADR body,
but cases can only get transferred if the airline is registered in Slovakia. All
other cases, for instance Wizzair or Ryanair cases, will always only be handled
by the NEB.
If the airline does not provide the NEB with sufficient evidence of extraordinary
circumstances and/or non-compliance with passenger rights is found, the NEB
can impose a sanction. Sanctioning is done on a case-to-case basis. The
maximum value for a fine is 66,000 EUR, increasing to 166,000 for repeated
non-compliance. The NEB can impose the sanctions to all airlines which operate
in the Slovak market, however, as they are non-binding it can be problematic to
enforce them.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
No information provided.
Passengers can submit a complaint via email to the NEB.
< 3 months
Complaints are forwarded if the Slovak Trade Inspectorate is not the
competent NEB. A summary of the case in English is provided. The NEB also
January 2020 | 372
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0399.png
Study on the current level of protection of air passenger rights in the EU | Final Report
cooperates with the Slovakian Civil Aviation Authority through regular
meetings.
Activity level for claims under 261/2004
Number of
complaints received
2018: 260 complaints received
2017: 230 complaints received
2016: 150 complaints received
2015: 130 complaints received
2014: 40 complaints received
2013: 80 complaints received
The majority of complaints received (90%) is legitimate. The NEB estimates that
only around 10% of passengers out of those eligible to claim actually do so.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Claims received
Nature of claims
received
Overview
Details
Amendment to the Civil Aviation Act from no. 143/1998
NEB is able to handle individual complaints.
Role of the 1107/2006 National Enforcement Body
Most complaints relate to long delays.
No information provided.
Extraordinary circumstances are investigated on a case-by-case basis. The NEB
requests evidence from the carrier to support extraordinary circumstances,
including METAR, AIMS reports, irregularity reports, TAF, weather report
SHMU, and consults with experts to analyse the documentation.
One sanction has been issued by the NEB, which was paid by the airline.
The NEB undertakes airport inspections every other year.
The NEB has noted a growing awareness of passenger rights over the last two
years, also as a result of awareness campaign at airports set up by the Slovakian
ECC in the summer periods.
Passengers have to submit a complaint to the airline first before the NEB
accepts their complaint.
See enforcement power under Regulation 261/2004.
Activity levels for claims under 1107/2006
The NEB has not received any complaints relating to Regulation 1107/2006 yet.
Around 2,500 PRMs request assistance at the airports in Slovakia annually.
-
Alternative/Online Dispute Resolution
The NEB also acts as the ADR/ODR body.
The number of ADR cases is low as the ADR’s competence is restricted to
airlines which are based in Slovakia, of which there is only one. The minimum
claim value is 20 EUR and passengers can contact the ADR in English and Slovak.
Although theoretically possible, the ADR has not yet commissioned expert
January 2020 | 373
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0400.png
Study on the current level of protection of air passenger rights in the EU | Final Report
support due to budget issues. The ADR can compel airlines to submit evidence
and, upon non-cooperation, can refer the file to the Inspectorate which can
impose a fine between 500 to 10,000 EUR. Passengers are able to use the ADR
decision in court.
Since 2015, the ADR has handled around 30 cases related to air passenger
rights and has made 28 decisions of which 47.5% were decided in favour of the
passenger. On average, the ADR process takes 60 days and passengers are
awarded 300 EUR.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://www.soi.sk/en/Contact.soi
The decisions of the ADR body are not biding unless both parties agree.
No costs
No costs
National small claims procedure (individual procedure)
No small claims court procedure in Slovakia.
Claim agencies (individual procedure)
The NEB receives a significant proportion of complaints (30%) from claim
agencies.
January 2020 | 374
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0401.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Finland
Description
National
Enforcement
Body/Bodies
Type of organisation
Finnish Competition and Consumer Authority (FCCA)/Ombudsman,
Traficom, and
Consumer Disputes Board (CDB)
FCCA: Consumer Ombudsman
Traficom: Civil Aviation Authority
CDB: ADR body
FCCA: Regulation 261/2004 and Montreal Convention/Regulation 889/2002
Traficom: Regulation 261/2004 (for non-consumer (business) passengers) and
Regulation 1107/2006
CDB: Regulation 261/2004, Regulation 1107/2006, Montreal
Convention/Regulation 889/2002
FCCA: Consumer Protection Cooperation (CPC) network
Traficom: Transport and communications agency
CDB: ADR/ODR body
15 FTEs working across all services at FCCA, 2.5 FTEs at Traficom and 4 FTEs
working at the CDB with passenger rights taking up around 1/6 of their time.
Budget: Government-funded
Regulation 261/2004
National legal basis
The nomination of the Consumer Ombudsman (38/1978, several subsequent
amendments) as one of Finland’s three NEBs did not require any specific legal
provisions. The Consumer Protection Act already defines the Ombudsman’s
role as encompassing contract terms, marketing and general conduct in
consumer relationships; and the wide general competence of the Ombudsman
was already well established, allowing it to address a wide range of issues.
The powers of the Consumer Disputes Board are established by the Act on the
Consumer Disputes Board (8/2007). The members of the Board are nominated
by the Ministry of Justice for a five-year term. The Act states that the Board can
only handle complaints brought by private consumers, and that the Board
cannot handle complaints from business travellers whose employer has paid
for their flights; therefore such cases are transferred to Traficom.
Traficom is responsible for the regulation and supervision of the entire
transport system. Its aviation sector supervises flight safety and administrative
aviation issues. The Finnish Civil Aviation Act (1194/2009) allows Traficom to
impose conditional fines or orders of execution or suspension for actions or
operations which infringe the Regulation. The Finnish Conditional Fine Act
defines the process by which such fines can be applied.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
FCCA is responsible for the supervision of passenger rights under Regulation
261/2004 and the Montreal Convention but does not handle individual
complaints.
CDB is responsible for individual complaints from private consumer passengers
under Regulation 261/2004. The complainant must also have a clearly defined
compensation claim - for example complaints of poor customer service will not
be accepted. The Board cannot impose sanctions.
Remit of NEB
Other competencies
within remit
Resources available
January 2020 | 375
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0402.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Traficom is responsible for handing individual complaints under Regulation
261/2004 from non-consumer (business) passengers only.
Is NEB a first or
second order body?
Both Traficom and the CDB are second order bodies, meaning that passengers
must have contacted the airline in question first.
The FCCA can be contacted directly by passengers to report non-compliance
but does not deal with individual complaints.
Enforcement power
of NEB
Traficom can issue non-binding recommendations. In most cases it states
whether the passenger has a right to standard compensation or not. For some
cases, a recommendation on the reimbursement of ticket costs is also stated,
however the NEB is not clear on the extent to which its competence extends to
issuing such recommendations on reimbursement. Reasons for the issued
recommendation are given to passengers and are not subject to appeal.
Traficom focuses on case-by-case enforcement and has no standard policy for
issuing sanctions. Occasionally Traficom may contact Finnish carriers if there
are clear issues of non-compliance, for example wrong information on the
website.
For cases handled by the Consumer Disputes Board, the secretariat of the
Board, called Consumer Advice which sits within the FCCA, can provide advice
and try to reach an amicable settlement, where possible. If a settlement cannot
be reached, the case will be taken to a meeting of the Consumer Dispute Board
which will then issue a decision. Decisions issued by the Consumer Disputes
Board are non-binding but are often considered binding de facto. The CDB does
not issue sanctions.
FCCA does not handle individual complaints but looks at system-level
enforcement for clear, repeated, systematic or grave breaches. Where FCCA
observes systemic non-compliance with decisions of the ADR, they will consider
imposing sanctions to uphold the credibility of the ADR-body and compliance
with its decisions. However, the NEB has a statutory duty to negotiate with the
carrier first before going to general court or the CDB for a group complaint. The
principles that apply are the general prioritisation principles of the Consumer
Ombudsman of the FCCA.
There are no limits in place for sanctions. However, the process for imposing
fines means taking the carrier to court which is time and resource consuming
and thus may be prohibiting.
Annual report or
activity report
Services to passengers
Communication with
passengers
The complaint procedure is free of charge for passengers.
Non-consumer (business) passengers can use the Traficom website to launch a
complaint (https://www.traficom.fi/en/services/business-traveller-make-
complaint-about-delayed-or-cancelled-flight)
where the complaint is logged on
the registration system and given an individual case number. The maximum
time for the complaint handling process is 12 to 18 months.
The Consumer Disputes Board, which handles private consumer passenger
complaints can be registered by filling an online form, by e-mail or by mail.
Both parties may introduce written evidence and pictures during the
correspondence phase. After this phase is concluded, a decision is given. The
No information provided.
January 2020 | 376
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0403.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Board cannot accept oral testimony. If a case cannot be resolved without
hearing witnesses, the Board may decide to refrain from issuing a
recommendation. On average, the complaint handling process takes between 6
to 12 months.
Length of complaint
processing
261/2004 NEB
cooperation
6
–
12 months for CDB, 12
–
18 months for Traficom
The three Finnish NEBs exist as three distinct, independent bodies with a clear
division of (inter-locking) tasks. Although the NEBs are in close cooperation
with each other (and the ECC), information has to be requested individually by
each NEB body. For example, the Consumer Disputes Board does not have
access to information that Traficom might have requested for the same flight.
Generally, the NEBs will forward complaints to the competent NEB where
relevant. The FCCA and CBD note that although complaints are forwarded, a
translation is not provided. Traficom further noted that sometimes the
passenger or claim agency will be asked to contact the competent NEB directly.
Traficom will provide an unofficial translation summarising the main points of
the case.
The Finnish ECC sits within the FCCA and thus good cooperation exists between
both. Traficom highlighted that it is difficult for them to use the ECC network as
it does not handle business passenger complaints which are defined as non-
consumers under Finish legislation. The ECC does however handle lost luggage
complaints of non-consumers/business passengers and a good an open
communication exists between the two bodies. CDB noted that complaints are
occasionally transferred to it by the ECC Network.
Activity level for claims under 261/2004
Number of
complaints received
FCCA: not applicable
Traficom:
2018: 285 complaints received of which 140 were legitimate
2017: 228 complaints received of which 105 were legitimate
2016: 203 complaints received
2015: 126 complaints received
2014: 124 complaints received
2013: 115 complaints received
2012: 79 complaints received
2011: 62 complaints received
Consumer Disputes Board:
2018: 1,481 complaints received
2017: 1,312 complaints received
2016: 1,354 complaints received
2015: 857 complaints received
2014: 731 complaints received
2013: 718 complaints received
2012: 314 complaints received
2011: 298 complaints received
These figures include some overlap where a given claim may have been
referred to another body and thus might be double counted. A single complaint
may also relate to more than one passenger at a time.
January 2020 | 377
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0404.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Nature of complaints
received
Outcome of
complaints
FCCA: Mostly delays and non-compliance with paying standard compensation.
Technical faults were a prominent cause of complaints in 2016 and 2017.
FCCA: not applicable
Traficom: No statistics but roughly half reach a decision.
Consumer Disputes Board concluded cases (i.e. board decisions, settlement
between carrier and passenger or passengers waiving their rights):
2018: 1,213 concluded, including 365 decisions
2017: 1,507 concluded, including 242 decisions
2016: 1,152 concluded, including 289 decisions
2015: 796 concluded, including 210 decisions
2014: 638 concluded
2013: 546 concluded
2012: 329 concluded
2011: 260 concluded
Concluded cases and complaints registered in a given year may not correspond
due to the time elapsed for the cases to be conluced.
Investigation of
extraordinary
circumstances by the
NEB
In case extraordinary circumstances are claimed, Traficom sends an inquiry to
the carrier asking for clarification. Carriers will provide delay and weather
reports, as well as technical reports about the specific case. For some cases,
internal experts and publicly available decisions of the Consumer Disputes
Board are used for guidance.
The Consumer Disputes Board investigates every claim of extraordinary
circumstances individually on a case-by-case basis but if there is another ruling
by the Board concerning the same flight which was ruled as extraordinary
circumstances, the Board may refer to the said decision instead.
The NEBs noted that they do not understand technical defects to classify as
extraordinary circumstances, unless, for example EASA EADA issues a notice, as
in the case of the Boeing 737 Max. In such a case, technical issues would be
understood to count as extraordinary circumstances.
The FCCA currently has a case in front of the Supreme Court relating to
compliance with respect to technical issues due to fleet introductions. The
FCCA is also providing legal assistance to individual consumers in their own
cases before the courts, where decisions of the CDB have not been followed.
Sanctions
Inspections and
other relevant
activities
The FCCA is currently engaged in a court procedure towards obtaining
sanctions.
Traficom concentrates on case-by-case complaint handling and does undertake
proactive inspections to assess compliance with the Regulation. This is due to
limited resources.
The FCCA monitors complaints data from the Consumer Advice service, the CDB
and from other NEBs.
Changes in activity
levels since 2011
The NEBs observed that passengers have become more aware of their rights,
with compensation-related issues making headlines regularly in Finland. The
CDB noted that the number of complaints remains marginal in relation to the
total number of passengers.
January 2020 | 378
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0405.png
Study on the current level of protection of air passenger rights in the EU | Final Report
On average, the number of complaints between 2011 and 2018 at Traficom has
grown by 24% each year while the average rate of growth of complaints during
the same time period was slightly higher at CDB, with 26%.
Regulation 1107/2006
National legal basis
The Finnish Civil Aviation Act (1194/2009) allows Traficom to impose
conditional fines or orders of execution or suspension for actions or operations
which infringe the Regulation. The Finnish Conditional Fine Act defines the
process by which such fines can be applied.
Traficom can handle complaints from individual passengers on PRM-related
issues under Regulation 1107/2006.
Passengers must have contacted the airline/airport initially. Passengers can
make a complaint by email or by mail. An electronic form is not used. Further
information is provided (in Finnish only) on the Traficom website
(https://www.traficom.fi/fi/asioi-kanssamme/tee-valitus-liikuntarajoitteisen-
ja-vammaisen-henkilon-oikeudet-lentomatkalla).
After receiving the complaint, Traficom sends an enquiry to the airline/airport
and allows eight weeks for an answer. Upon receipt of the answer, the case is
assessed, and a recommendation is given. A decision is also made on whether
there is need for any further enforcement actions.
The recommendations Traficom makes are non-binding and cannot be
appealed (Act on Transport Services (320/2017) Part IV Chapter 1 Section 9).
Sanctions can be imposed in accordance with the Act on Transport Services
(320/2017) Part VI Chapter 1 Section 4
Notice of a conditional fine, notice of
enforced compliance and notice of enforced suspension.
No sanctions have
been imposed.
Activity levels for claims under 1107/2006
Claims received
2011: 0 / 2012: 1 / 2013: 2 / 2014: 5 / 2015: 3 / 2016: 3 / 2017: 5 / 2018: 6
The proportion of PRM passengers in Finland is very low. At Helsinki airport
they only represent 0.2% of passengers. The NEB notes that in general,
passengers are not fully aware of their rights.
Nature of claims
received
Overview
Details
Usually the reasons for complaints are connected to seating in the aircraft,
transportation of wheelchairs and assistance at the airport.
The Consumer Disputes Board acts as the ADR body responsible for air
passenger rights.
Participation in the ADR process is mandatory, however the Board may give a
ruling even if an airline chooses not to participate or respond. The ADR refers
to both CJEU judgements and case law for their ADR rulings. The Board may
acquire expert statements, but does so rarely. On average, the decisions are
issued after 10 months on cases concerning air travel. Passengers are able to
use ADR decisions in court.
In general, the Board only accepts complaints and other documentation in
Finnish or Swedish. However, passenger rights complaints based on EU
Regulation 261/2004 can also be handled in English.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Alternative/Online Dispute Resolution
January 2020 | 379
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0406.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Contact
Legally binding
https://www.kuluttajariita.fi/en/index/valituksenteko.html
Decisions issued by the Consumer Disputes Board are non-binding but are often
considered binding de facto. The compliance with decisions is monitored by the
Board (current rate is 72%).
No costs.
No costs.
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
There is no small claims procedure in Finland. Passengers can use the European
small claims procedure for cross-border cases.
The NEBs note that there has been increased activity from claim agencies and
that the quality of those complaints is sometimes not high.
Claim agencies (individual procedure)
January 2020 | 380
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0407.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Sweden
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Swedish Consumer Agency/Konsumentverket (SCA); and
Allmänna reklamationsnämnden (ARN)
SCA: Consumer Authority
ARN: National Board for Consumer Disputes
SCA: Regulation 261/2004 and Regulation 1107/2006. The Consumer
Ombudsman sits within SCA but only has limited involvement with the
enforcement of the Regulation.
ARN: Regulation 261/2004 and Montreal Convention/Regulation 889/2002
SCA: The SCA is represented on the arbitration board of the Swedish ADR and is
part of the Consumer Protection Cooperation (CPC) network. SCA also offers an
information service for consumers in the form of an advice hotline for
passengers.
ARN: ADR/ODR body
SCA has 4 (FTE) legal advisors working on Regulation 261/2004 who also work
on other Consumer Protection Regulation and employees providing support on
the advice hotline.
ARN has 13 members of staff covering air passenger rights.
Both NEBs are government-funded
Regulation 261/2004
National legal basis
Chapter 9, Section 11 of the Swedish Aviation Act designates the SCA as the
NEB competent to enforce Article 14 of the Regulation. The Aviation Act refers
to the Marketing Practices Act, which sets out the fines and the process to be
followed to impose them. The Consumer Contract Act (1994:1512) provides the
SCA with a right (in simple cases when there is a relevant precedent set by the
Market Court) to prohibit traders from using unfair contract terms when
entering into a contract with a consumer. The SCA may also, in complex
situations, have the terms prohibited through the Market Court. If the trader
uses misleading information when advertising his products or services, the SCA
can prohibit such advertising through the use of the Marketing Act (2008:486).
SCA is responsible for protecting the collective interest of Swedish consumers,
and for the enforcement of the Marketing Practices Act.
ARN can handle complaints from individual passengers. However, it will only
accept and respond to claims which have a minimum value of 500kr (50 EUR)
per passenger and which are submitted within 1 year of an airline’s first
rejection of a claim.
Is NEB a first or
second order body?
Passengers can contact SCA but will get referred to the ADR body for
compensation requests.
ARN is a second order body. Passengers have to contact the airline first with a
timely notice when claiming compensation according to article 7 in EC
Regulation 261/2004. According to the Swedish Supreme Court, contact with
the airline within 2 months from the delay, cancellation or the denied boarding
accounts for a timely notice.
Enforcement power
of NEB
The work of the SCA includes monitoring for unreasonable contract terms,
undertaking research into consumer issues and providing information to
Other competencies
within remit
Resources available
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
January 2020 | 381
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0408.png
Study on the current level of protection of air passenger rights in the EU | Final Report
consumers. Its role is therefore to undertake system-level enforcement to
improve the situation for air passengers within Sweden. The SCA is part of the
arbitration board of the ADR and therefore is part of the decision-making
process on issuing non-binding recommendations for individual cases. It uses
the ADR decisions as well as results from independent audits to monitor the
compliance with the Regulation.
The SCA can impose fines on carriers where it observes repeated non-
compliance. The NEB stated that it will generally issue a warning to the airline
first with a conditional financial penalty. If the airline does not amend its
behaviour to comply, it will then be asked to pay the issued fine.
ARN handles individual complaints and is the ADR body. ARN accepts only
written evidence and conducts its procedures without the presence of the
parties. ARN issues non-binding recommendations to passengers. Decisions are
made internally either after a report or in a session. Cases which are assessed
to be sufficiently simple or where precedent exists are decided after a report.
The remaining complex cases require a session where a chairperson (a
professional judge with experience of court proceedings), two representatives
of consumer organisations (including SCA) and two (independent)
representatives from trade organisations are present. There is no possibility of
appeal, although a ‘retrial’ may be requested on procedural grounds, within 2
months of the decision; although such ‘retrials’ are rare. Passengers are able to
use the NEB-findings as evidence should they decide to take the airline to
court. Both judgements from CJEU, as well as case law from other Member
States can be used to reach a decision.
ARN cannot impose sanctions, but if one of its decisions is not complied with,
the name of the offending airline is published in a blacklist in a magazine, Råd &
Rön, and other media outlets. ARN observed that that this approach works
better for Swedish and Scandinavian airlines, compared with airlines in other
parts of Europe
Annual report or
activity report
Services to passengers
Communication with
passengers
SCA offers an information service for consumers in the form of an advice
hotline for passengers. Passengers can either call or chat online to discuss
issues or questions. Beyond offering clarification on the relevant body to
contact, passengers can also use the service to submit a complaint.
Passengers can submit a complaint to ARN via the online form or via email. ARN
accepts complaints in English and other Scandinavian languages.
Length of complaint
processing
261/2004 NEB
cooperation
< 3 months for SCA, 3
–
6 months for ARN
The ECC is funded by SCA and sits in the same building. Both bodies are
cooperating closely as the ECC will mediate with EU-carriers on behalf of SCA.
SCA is also part of the CPC network which it uses regularly.
ARN follows the NEB-NEB agreement but can also try cases concerning
damaged baggage under the Montreal Convention, even if the damage
occurred on a flight outside of Sweden.
ARN publishes an annual report.
January 2020 | 382
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0409.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Good communication exists between the two NEBs. Both NEBs will forward
complaints to another competent NEB if needed, as well as provide a
translation into English.
The Swedish NEBs have a close relationship with the Finnish NEBs, whose
organisation is similar.
Activity level for claims under 261/2004
Number of
complaints received
Although SCA does not handle complaints, it is, together with ARN, listed as the
NEB in the list of contact details published by the Commission, and hence
receives complaints. SCA received the following number of complaints in recent
years which it either refers to ARN if the incident occurred in Sweden or to the
responsible NEB if the incident took place in another Member State.
2018: 442 complaints of which 295 were transferred to ARN
2017: 271 complaints of which 184 were transferred to ARN
2016: 344 complaints of which 118 were transferred to ARN
2015: 300 complaints of which 110 were transferred to ARN
2014: 176 complaints of which 135 were transferred to ARN
2013: 130 complaints of which 111 were transferred to ARN
2012: 116 complaints of which 96 were transferred to ARN
In 2018, ARN received 3,212 complaints in total, some of which are the
complaints transferred from SCA.
Nature of complaints
received
Outcome of
complaints
No information provided
In 2018, 31% of cases were dismissed because they could not be tried by the
ARN, 24% were dismissed because the parties reached a settlement, or the
consumer withdrew the complaint. 34% of cases were decided after a session
and the remaining 11% of cases were decided after a report as they were
sufficiently simple. Of the closed cases, 53% of ARN recommendations were
found to be in favour of the passenger (either partial or full compensation). All
of ARN’s decisions are made publicly accessible upon request, including the
recommendation and supporting documentation.
Even though the recommendation issued by ARN is non-binding, airlines
comply in 80% of cases. ARN notes that most (and particularly Swedish)
companies regard it as good business practice to adhere to ARN’s decisions.
Investigation of
extraordinary
circumstances by the
NEB
ARN bases its decision on the evidence provided by the parties. The NEB’s role
is to assess the airline’s evidence instead of conducting its own investigation.
Evidence provided by carriers includes METAR data and technical reports. The
NEB notes that the burden of proof falls onto the parties and cases have been
decided in favour of the passenger because airlines have not been able to
sufficiently prove extraordinary circumstances.
SCA stated that there has been one case against an airline where an order was
issued on the treatment of extraordinary circumstances. The airline amended
its treatment of extraordinary circumstances and hence no fine was issued.
No information provided
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
SCA has observed an increased number of complaints regarding delayed or
cancelled flights. The NEB stated that compliance with the regulation tends to
depend on the financial performance of an airline.
January 2020 | 383
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0410.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Regulation 1107/2006
National legal basis
Sanctions can be imposed on airports or airlines according to the Swedish
Aviation Act (2010:510).
SCA is able to use individual complaints for wider system-level enforcement of
the Regulation.
Passengers can contact SCA directly.
According to the NEB, the Swedish Transport Agency is responsible for training
and inspections at airports.
SCA can handle PRM complaints s. The NEB can open a case and also fine an
airport/airline when it fails to comply with an enforcement action. Similarly, to
Regulation 261/2004, the role of the NEB is to ensure system-level
enforcement with the Regulation. For instance, SCA may issue a warning to a
carrier who has denied boarding to a PRM to ensure transportation in the
future.
CJEU decisions as well as case law from other Member States are taken into
account.
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
Details
In total the NEB has only received 12 complaints since 2011.
No information provided.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Alternative/Online Dispute Resolution
ARN acts as the ADR body responsible for air passenger rights.
ARN can handle complaints relating to Regulation 261/2004, the Montreal
Convention and Regulation 889/2002, cases under the unfair terms in
consumer contracts Directive or Directive 2005/29/EC on unfair business-to-
consumer commercial practices, flight-only travel and package travel and any
other specific cases. Claims have to be received within one year of initial
contact with the business itself.
The ADR is government-funded. Both CJEU and case law are considered for the
ADR rulings. Participation is voluntary for airlines. Cases are handled in
Swedish, Norwegian, Danish and English.
In 2018, the ADR handled 3,212 cases (including 873 on PRM issues).
Complaints are handled within 90 to 180 days on average. 5% of cases were
rewarded full or partial compensation.
Contact
Legally binding
https://www.arn.se/om-arn/Languages/english-what-is-arn/
Decisions issued by ARN are final but non-binding. ARN monitors compliance
with its decisions. Passengers can use the ADR’s recommendation as evidence
in court.
No costs
No costs
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
January 2020 | 384
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0411.png
Study on the current level of protection of air passenger rights in the EU | Final Report
National small claims procedure (individual procedure)
Small claims court
procedure
There is small claims court procedure available for claims under 23,250kr (2,470
EUR) at the municipal courts. There is a fee of 900kr (90 EUR) and the claimant
has to pay for their own legal representation.
Around 25% of complaints received by ARN are submitted via claim agencies.
The NEB has noted issues where contract terms of claim agencies are not in
compliance with the law and has successfully taken several of cases to court.
Claim agencies (individual procedure)
January 2020 | 385
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0412.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United Kingdom
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The CAA is the designated enforcer of Consumer Protection under Part 8 of the
Enterprise Act 2002 and the European legislation providing rights to air
passengers.
NEB can handle individual complaints from passengers. The CAA only accepts
complaints about airlines who are not signed up with an ADR entity in the UK.
The CAA is a second order body. Passengers must have contacted the airline
initially and wait for a response for eight weeks.
If the CAA receives a complaint about an airline which is signed up to a UK ADR
body, it will direct the passenger to the ADR-body instead. When the NEB is
competent to handle a complaint, it contacts the airline and allows 28 days for
a response. Following the investigation of a case, the CAA issues an opinion,
which is not legally binding on either party.
The NEB makes use of a balance of formal and informal approaches, depending
on what is appropriate in the circumstances. The range of enforcement tools is
as follows: advice and guidance; self- and co-regulation; inspections and
information requests; warning letters; legal undertakings; enforcement orders;
and criminal sanctions. The choice of approach is guided by the seriousness of
the issue, the type of action the business might respond best to and general
knowledge of past behaviour. The NEB does not have the power to fine airlines
directly. The CAA has civil powers to take enforcement action in relation to a
range of passenger rights legislation and general consumer law. According to
Part 8 of the Enterprise Act 2002, the CAA can seek undertakings from
businesses that require them to comply with the law. If undertakings are not
provided, or are breached, the CAA can seek an Enforcement Order from the
Court which can then issue a fine. Whilst enforcement through the Courts may
be the appropriate response to the most serious breaches of consumer
protection legislation, it is considered the exception rather than the rule.
Enforcement can be done on a system level relating to policy issues and does
not have to be based on a specific individual case. The NEB publishes a list of
businesses it has taken enforcement action against, which includes UK, EU and
non-EU carriers.
Civil Aviation Authority (CAA)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Montreal Convention / Regulation 889/2002; and
Consumer Protection Cooperation (CPC) network
3 FTEs with 3 further FTEs currently being trained to cover complaint handling
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
January 2020 | 386
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0413.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The CAA has no statutory power to enforce complaints related to luggage,
however the government has asked the NEB to take on cases for UK citizens.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Passengers can submit complaints on the CAA website. The system uses a
database called Icasework. The CAA also maintains an advice phone-line three
days a week.
< 3 months
The NEB forwards complaints to the relevant NEBs. The CAA does not work
with the ECC Network on complaint handling or enforcement. Requests are
referred and accepted over the CPC network, however the NEB noted this to be
a slow process with no response in some cases.
The CAA has a close ongoing relationship with the UK ADR bodies and
participates in quarterly meetings.
Activity level for claims under 261/2004
Number of
complaints received
2018: 4,929 complaints
2017: 5,067 complaints
2016: 13,548 complaints
2015: 16,538 complaints
2014: 13,717 complaints
2013: 4,247 complaints
86% of cases received were for claims which fall under EC Regulation 261/2004.
The significant increase in complaint numbers between 2014 and 2016 follows
the Sturgeon ruling. The ADR started operation in June 2016, which explains
the decrease in numbers from 2017.
Nature of complaints
received
The majority of complaints relate to flight delays (55%), followed by
cancellations (15%). Other reasons include missed connections (6%), baggage
claims (6%), refunds (4%), and denied boarding (3%).
The NEB noted that the nature of complaints has changed from assistance
towards compensation.
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
No statistics available.
In its initial communication, the CAA asks the airline to provide evidence if it
considers the disruption to have been due to extraordinary circumstances.
Evidence includes general information on the flight, as well as METAR data,
technical logs, evidence for strikes, and crew schedule.
The NEB notes that carriers often do not provide sufficient information in their
communication with passengers, for instance only quoting “extraordinary
circumstances” instead of “ATC strike”. This may be related to the available
resources and organisation of the customer management of some carriers.
Data on agreed cancellations between airlines and airports in bad weather
events get forwarded to the CAA which will issue statements to say that
extraordinary circumstances apply.
The NEB issues a number of reports, including an annual Accessibility Report.
January 2020 | 387
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0414.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Sanctions
The CAA has civil powers to take enforcement action in relation to a range of
passenger rights legislation and general consumer law and can seek an
Enforcement Order from the Court which can then issue a fine.
The NEB publishes a list of businesses it has taken enforcement action against,
which includes UK, EU and non-EU carriers.
The CAA undertakes audits and inspections, including accessibility inspections
of airports.
The NEB has reviewed the compensation policies of the top 15 airlines
operating in the UK that cover around 80% of the UK market. The vast majority
of these airlines are respecting the court’s decision in regard to
technical
problems and are paying compensation.
With regards to the provision of information, the NEB has found examples of
very good practice as well as airlines it is concerned about. Some airlines, for
example easyJet, Ryanair and Wizz Air, have very clear processes in place to
provide passengers with proactive and accurate information about their rights.
The NEB has used its powers under Part 8 of the Enterprise Act against airlines
not complying with the regulation.
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
The CAA is the designated enforcer of Consumer Protection under Part 8 of the
Enterprise Act 2002.
NEB can handle individual complaints from passengers.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The CAA is a first order body for Regulation 1107/2006. Passengers can contact
the NEB directly.
Passengers are able to submit complaints online on the CAA website where
they get logged on a database tool called Icasework. Complaints additionally
receives e-mail queries from businesses and consumers.
All passenger complaints are handled by airlines and airports themselves in the
first instance. If no solution is found, the responsibility lies with the ADR bodies
appointed to resolve the dispute. The CAA does handle PRM complaints which
involve special cases, for example damaged wheelchairs. Furthermore, the
CAA's complaints service handles complaints for all customers flying with
airlines that have not agreed to participate in an approved ADR scheme.
For complaints that the CAA is competent for, the airline/airport will either
confirm or deny the allegations and issue a statement. The NEB either accepts
their response and informs the passenger of the outcome or will ask the
airport/airline to change their procedure.
The NEB has powers to take enforcement actions in relation to European
legislation under UK Access to Air Travel Regulation 2014. Actions may be
advice to business, guidance, schemes, inspections, warning letters, formal
information requests, legal undertakings, Enforcement Orders, or criminal
prosecution.
In the past the CAA has asked Heathrow and Manchester airports to sign 'legal
undertakings' under the PRM Regulation but has not imposed sanctions.
January 2020 | 388
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0415.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Instead, the annual Airport Accessibility report is used as an alternative way to
influence airports and ensure compliance and performance improvements.
Activity levels for claims under 1107/2006
Claims received
No statistics available but the numbers that are reported by the ADR are low
(around 5 complaints in 5 months). According to data the NEB collects from
airports, assistance was provided for 3.7 million PRMs at UK airports in 2018.
The number of PRMs using air travel has increased over the years. The NEB
notes that, perhaps due to cultural reasons, the provisions and services
provided for PRMs in the UK is of a high standard and the increase is a result of
this quality.
Nature of claims
received
Overview
Details
Complaints usually relate to broken equipment for which compensation is
available.
There are two ADR bodies responsible for ADR on Air Passenger Rights issues
–
the Centre for Effective Dispute Resolution (CEDR) and the Aviation ADR.
The ADR issues binding decision. It is independent of the CAA and as such can
take alternative decisions. However, the NEB notes that due to ongoing
dialogue between both bodies, the ADR is aware of guidance issued by the CAA
and takes similar approaches to complaint handling.
CEDR: [email protected]
Aviation ADR: [email protected]
CEDR & Aviation ADR: Legally binding on the airport or airline if the passenger
chooses to accept the ADR’s decision.
CEDR: If the ADR finds that the passenger is entitled to compensation, the
process is free. Only if the claim is unsuccessful, the passenger is charged a
nominal fee of £25.
Aviation ADR: No costs for passengers.
CEDR & Aviation ADR: No information provided
Alternative/Online Dispute Resolution
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
National small claims procedure (individual procedure)
Small claims court procedure exists in the UK but differs between for Scotland
and Northern Ireland. In England & Wales, a claim can be made online and sent
to the Country Court Money Claims Centre. In Scotland, a process called simple
procedure where a claim is made in the sheriff court replaced the small claims
procedure in 2016. For cases where the claim is higher than £5,000, the
Ordinary cause procedure can be used instead. In Northern Ireland, claims
where the value does not exceed £3,000 can be made online at the Courts and
Tribunal Service website.
In England and Wales, a court fee of has to be paid, which is based on the
amount of the claim and ranges between £35 to £10,000. In Scotland, the fees
are specified in the Sheriff Court Fee Order (accessible online). The fees for the
small claims court procedure in Ireland are published on the Courts and
Tribunal Service website.
https://www.gov.uk/make-court-claim-for-money
https://www.mygov.scot/court-claim-money/
https://www.justice-ni.gov.uk/articles/online-services
January 2020 | 389
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0416.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Claim agencies (individual procedure)
The NEB receives complaints that are submitted by claim agencies. Issues with
the quality of those claims have been noted, especially with regards to the
legitimacy of passengers’ signatures and incorrect data, for example noting a
cancellation if the flight was not actually cancelled.
January 2020 | 390
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0417.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Iceland
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
Article 106 of the Aviation Act No. 60/1998sets out the responsibilities of
carriers to compensate passengers for damages resulting from delays and
cancellations and states the regulatory powers of ICETRA in case of non-
compliance.
NEB can handle individual complaints from passengers.
Icelandic Transport Authority (ICETRA) - Samgöngustofa
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
Montreal Convention / Regulation 889/2002
2 FTEs
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
NEB is a second order body, as passengers must have contacted the airline
initially. The NEB accept complaints where the airline has not responded within
8 weeks or rejected the claim.
Administrative law defines the enforcement process. After accepting a
complaint, the NEB sends a request for a statement to the airline. The airline
has two to three weeks to respond. The
airline’s response is sent to the
complainant for comment.
The NEB evaluates the information received and issues a binding decision. The
decision can be appealed at the Ministry of Transport within 3 months of its
publication. Decisions from CJEU can
be used to inform the NEB’s judgement
Enforcement is done on a case-by-case basis. According to the Aviation Act, the
NEB can impose sanctions if a carrier does not comply with an issued decision.
These fines can be as high as ISK 10,000 (approx. 73 EUR) per day. The current
policy of the NEB is to not issue sanctions.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
No information provided
All complaints and communication are registered in the NEB’s records
system.
The NEB sends the air carrier’s response to the complaint to the passenger for
comments before issuing its decision.
6
–
12 months
The NEB forwards complaints for which it is not the competent body and will
provide a summary translation if necessary.
Activity level for claims under 261/2004
January 2020 | 391
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0418.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Number of
complaints received
2018: 1,180 complaints received
2017: 1,121 complaints received
2016: 424 complaints received
2015: 213 complaints received
2014: 174 complaints received
2013: 81 complaints received
2012: 129 complaints received
2011: 250 complaints received
2010: 129 complaints received
Almost all complaints are legitimate. The NEB notes that the increase of
complaints in 2017 and 2018 was primarily related to two carrier, both of which
have since declared insolvency. The NEB expects the number of complaints in
2019 to decrease.
Nature of complaints
received
Complaints relate to delays, cancellations, denied boarding, luggage,
downgrading, refund of costs and services bought that were not rendered.
Due to the high number of connecting flights offered by Icelandic carriers, a
number of complaints also relate to missed connections.
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
The NEB estimates 60-70 complaints were settled in 2018 after they were
received. A decision was issued for the remaining complaints.
The NEB investigates extraordinary circumstances on a case-by-case basis. It
requests evidence from the carrier, including METAR/TAFOR data and details
from handbooks on crew and aircraft. Additionally, information from airport
authorities, flightstats and experts from the NEB’s
operation department is
considered.
No sanctions have been imposed.
The NEB undertakes announced inspections to monitor compliance with PRM
rights at airports.
The NEB notes that while passengers are increasingly aware of their right to
compensation, there is less awareness of the right to care and information. The
NEB also notes a correlation between the performance of an airline and its
complaint numbers. Some airlines lack infrastructure to handle passenger
complaints, which is reflected in the number of complaints the NEB receives for
these.
Article 126b of the Aviation Act No. 60/1998 sets out the rights of PRM
passengers for travel and Article 126c nominates ICETRA as the relevant body
to enforce these rights.
NEB can handle individual complaints from passengers.
Regulation 1107/2006
National legal basis
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
NEB is a first order body. Passengers can contact the NEB directly.
The enforcement system is the same as for Regulation 261/2004. All complaints
and communications are registered in the NEB’s record system. The NEB
communicates with the airline or airport and the decision is communicated to
the passenger for comment.
January 2020 | 392
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0419.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Unlike with Regulation 261/2004, the NEB does not issue binding decisions but
instead provides advise on how to improve performance when applicable. The
NEB notes that it might consider issuing a binding decision instead of a
recommendation for cases where damage was incurred. However, the NEB has
not yet encountered a relevant case.
Sanctions could in theory be imposed, however the policy of the NEB is not to
issue any fines.
Activity levels for claims under 1107/2006
Claims received
Nine complaints received since 2011.
Issues relate mostly to lack of communication between airlines and airports
and training for handling mobility equipment. The NEB notes a high number of
PRMs that arrive at the airport without pre-notification.
Nature of claims
received
Overview
The complaints that the NEB has received relate mostly to service provisions
and damage to mobility equipment such as wheelchairs.
The Ruling Committee in Travel Industry matters is the Icelandic ADR
responsible for air passenger rights and is housed by the Consumers’
Association of Iceland.
The ADR has not yet received cases regarding 261/2004 that we know about.
Most air travel related cases are regarding package travel. Cases are handled in
Icelandic and English. The ADR is funded by the Ministry and small
administrative fees from the consumer. The ADR board consists of three
members, one designated from The Consumers´ Association, one from the
travel industry association and one from the Ministry. The member from the
Ministry is the chairman. Participation in the ADR procedure is voluntary.
Decisions are published online (without the name of the consumer or trader).
In 2016, the ADR handled one case regarding Regulation 261/2004 where the
passenger received partial compensation. On average, the ADR procedure takes
136 days.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://ns.is/
Decisions are not legally binding, but traders that are members of SAF have
committed themselves to obey the rulings.
The consumer pays a small fee of 3,500 ISK (approx. 26 EUR) which will get
refunded if the ruling is decided in his favour.
Traders must be a member of The Travel Industry Association (SAF) for which
an annual fee applies.
No small claims court procedure in Iceland.
Alternative/Online Dispute Resolution
Details
National small claims procedure (individual procedure)
Claim agencies (individual procedure)
No information provided.
January 2020 | 393
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0420.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Norway
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Regulation 261/2004
National legal basis
The regulation of rights of air passengers was established in BSL A 5-2 by the
Ministry of Transport and Communications in 2005 pursuant to the Aviation Act
from 1993. It defines the Civil Aviation Authority as the relevant body to
supervise compliance with and enforcement of the Regulation through possible
sanctioning. The BSL refers to infringement fees mentioned in section 13a-5
first paragraph no. 6 of the Aviation Act.
The Norwegian CAA does not handle individual complaints for compensation
under Regulation 261/2004. Passengers are directed to the ADR body (Norsk
reiselivsforum) for individual claims.
Not applicable since the NEB does not handle individual complaints.
The NEB is primarily responsible for system level monitoring and enforcement
of Regulation 261/2004. As such it monitors the compliance of airlines and
airports.
Fines can be issued by the NEB if it observes systematic non-compliance of
either an airline or an airport, however the NEB noted that it has not used the
sanctioning process.
Decisions on compensation for individual cases are made by the ADR body
responsible for Air Passenger Rights - Norsk reiselivsforum. Details on the
process are provided in the section on Alternative Dispute Resolution below.
The CAA is not involved in this process but does maintain good communication
with the ADR body to collect information on compliance by airlines.
Annual report or
activity report
Services to passengers
Communication with
passengers
Length of complaint
processing
261/2004 NEB
cooperation
Passengers can contact the CAA either via email or phone.
6
–
12 months
The CAA does forward complaints to relevant NEBs in other Member States if
necessary.
No information provided.
Norwegian Civil Aviation Authority (CAA)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
-
Two employees looking after Air Passenger Rights (not full-time)
Government-funded
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Activity level for claims under 261/2004
January 2020 | 394
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0421.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Number of
complaints received
2018: 4,141*
2017: 2,714
2016: 2,111
2015: 1,704
2014: 1,285
2013: 1,016
2012: 727
2011: 646
*Note that all statistics are from the ADR body
In 2018, 41% of complaints were related to delays and 32% to cancellations.
Other issues included luggage (6%), refunds (5%), denied boarding (4%),
changes in schedule (3%)*.
*Note that all statistics are from the ADR body
In 2018, 30% of cases were decided in favour of the passenger (either partly or
fully), 67% were decided in favour of the airline, and 3% were rejected*.
*Note that all statistics are from the ADR body
The NEB specified that it does not issue public statements on whether
particular incidents, such as strikes or fleet groundings count as extraordinary
circumstances.
No sanctions have been issued.
The NEB undertakes inspections at airports to check compliance with the PRM
regulation.
The NEB noted that compliance with Regulation 261/2004 is believed to work
well in general. Issues may arise in relation to ATC control problems or strikes.
The increasing number of complaints may present a problem in the future.
No information provided
Passengers can contact the CAA with questions or issues. However, the NEB
does not handle individual claims. Passengers will be directed to the ADR body
–
Norsk reiselivsforum.
Not applicable since the NEB does not handle individual complaints.
The NEB is primarily responsible for system level monitoring and enforcement
of Regulation 1107/2006. As such it monitors the compliance of airports and
airlines.
Fines can be issued by the NEB if it observes systematic non-compliance of
either an airport or an airline, however the NEB has noted that it has not used
the sanctioning process.
The CAA keeps good dialogue with PRM organisations to ensure pro-active
enforcement of Regulation 1107/2006. A meeting with airports, airlines and
representatives from PRM organisations is held four times a year. During those
meetings, past cases and lessons learnt are discussed.
The NEB noted that most airports are still in the process of building the
necessary and required PRM-infrastructure.
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
Sanctions
Inspections and
other relevant
activities
Changes in activity
levels since 2011
Regulation 1107/2006
National legal basis
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
Role of the 1107/2006 National Enforcement Body
January 2020 | 395
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0422.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Activity levels for claims under 1107/2006
Claims received
Nature of claims
received
Overview
2 PRM cases were handled in 2018*.
*Note that all statistics are from the ADR body
No information provided
Alternative/Online Dispute Resolution
Norsk reiselivsforum is the secretariat for the Passenger Complaint Handling
Body, which oversees air, bus, tram, subway, train and boat transport, and the
Package Travel Complaint Handling Body in Norway. Norsk reiselivsforum does
not offer ODR.
The ADR can only handle complaints, where the passenger has submitted a
formal complaint to the airline and the airline has declined the compensation
request or not responded within four weeks or has given a temporary response
to the passenger but has then not responded within eight weeks. Complaints
must be registered by filling out a complaint form on the ADR’s website and
attaching the necessary case documents. Passengers can track their complaint
status by logging onto the website with their case number. When it receives a
complaint, the Secretariat will contact the airline and request relevant
information. If the airline contends that the case was caused by extraordinary
circumstances, it is required to submit relevant evidence, including METAR
data, and traffic and operational logs. In addition, the airline is requested to
document what actions it took to avoid or reduce the consequences which
arose from the extraordinary circumstances.
The Air Passenger Complaint Handling Body consists of one neutral judge, two
representatives from the Consumer Council of Norway and two representatives
from the aviation/travel industry. For cases with precedent, the Secretariat may
be able to issue a decision. For all other cases, the complaints are considered in
a closed-door meeting. The parties do not have the right to appear in the
meetings, and the handling body will only consider written documentation and
photographic evidence. The decision of the handling body will be presented to
both parties within a reasonable time. The average case handling time is
around five to six months. Decisions are available online in Norwegian. If a
complaint is submitted by a passenger who does not speak Norwegian, Danish
or Swedish, the ADR will translate the decision into English. Participation in ADR
is voluntary for airlines and air transport industry companies. Airlines that are
signed up are SAS, Norwegian, and Widerøe.
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
https://reiselivsforum.no/web/klageinformasjon/fly/
Both the complainant and the airline receive a written decision. The decision is
not legally binding, but advisory. It is very rare that decisions are not followed.
The ADR service is free to passengers.
The business is financed through the aviation fees system.
Details
National small claims procedure (individual procedure)
Small claims procedure exists in Norway. Small claims are defined as those
where the value of the claim does not exceed NOK 125,000 (approx. 12,900
EUR). Cases where the amount disputed is higher than NOK 125,000 can also be
heard as small claims if both parties agree and the case is deemed reasonable
by the court. Another possible exception are cases that do not concern money
or financial assets, dependent on the agreement of both parties and the court.
January 2020 | 396
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0423.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The case is first heard by the Conciliation Board of which there is one in every
local authority. To limit the size of case costs, each party can only claim 20% of
the disputed amount in case costs (minimum NOK 2,500 and maximum NOK
25,000).
Claim agencies (individual procedure)
A proportion of claims that is received is submitted by claim agencies. The CAA
noted that it has found the quality of documentation for those claims to be
low.
January 2020 | 397
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0424.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Switzerland
Description
National
Enforcement
Body/Bodies
Type of organisation
Remit of NEB
Other competencies
within remit
Resources available
Federal Office of Civil Aviation (FOCA)
Civil Aviation Authority
Regulation 261/2004 & Regulation 1107/2006
-
3.6 FTEs covering the complaint handing process
2.3 FTEs covering legal issues on enforcement
Government-funded
Regulation 261/2004
National legal basis
The 1999 bilateral air transport agreement between Switzerland and the
European Community established the general principles of cooperation
between the two entities in the field of air transport.
The 2011 annex to the agreement sets out the specific items of European
legislation which apply to Switzerland and includes Regulation 261/2004 within
section 7 on passenger rights. The maximum sanction for infringements of the
Regulation is established by Article 91(4) of the Swiss Air Law.
The NEB can handle individual complaints from passengers.
Role of the 261/2004 National Enforcement Body/Bodies
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The NEB is a second order body as passengers must have contacted the airline
initially.
After receiving a passenger complaint form with the relevant evidence,
including the initial correspondence with the airline, the booking confirmation
and a copy of an ID or passport, the complaint is entered into the passenger
management system (IT-tool). The NEB checks the completeness of the report
and its competence to handle the case before requesting a statement from the
airline to be provided within 6 weeks. FOCA additionally has the possibility to
access internal data for a specific flight, for example delay out of or into ZHR,
GVA or BSL airports. The NEB further uses flightstats and great circle mapper.
When the evaluation of the case is complete, it can either be closed where the
airline pays compensation or further processed and handed over to the
enforcement team. The latter happens for cases where the NEB notes an
infringement of the Regulation, including non-payment, late payment or
reimbursement of ticket cost, no/insufficient care to passengers, or
no/insufficient information.
The complaint handling process is the first part of wider enforcement process.
90% of the cases can be closed after this sequence.
In Switzerland, enforcement is based on penal law, as the Swiss NEB
enforcement powers stem the Administrative Penal Law Act. As such,
sanctioning of an airline is only possible based on a clear legal text, since the
system does not allow for adjustments to interpretation due to lack of clarity.
The NEB noted that it has strong enforcement for aspects of the Regulation
where the wording is clear. However, for aspects which are not covered by the
January 2020 | 398
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0425.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Regulation but have been developed by CJEU rulings, enforcement is difficult,
for instance the (missing) link between Article 6 on delay and Article 7 on
compensation.
In order to enforce sanctions, the NEB needs to prove that an airline infringed
the Regulation. Article 91.4 of the Swiss Air Aviation Act furthermore specifies
that only in case of repeated or severe violation sanctions could be imposed.
FOCA imposes sanctions in individual cases reported by a passenger and keeps
an internal list of the number of fines for violation of each Article of the
Regulation to guarantee equal treatment. The number of sanctions under the
scheme is around 180 cases to date, of which all have been paid. The maximum
fine is CHF 20,000 (approx. EUR 17,500).
The incident leading to a sanction has to be related to the territory of
Switzerland. Therefore, all airlines departing from an airport of Switzerland can
be sanctioned, irrespective of whether they are registered CH/EU/third
countries.
Annual report or
activity report
Services to passengers
Communication with
passengers
Passengers can submit a complaint to the NEB via an online form found on
FOCA’s website. The passenger has to print the form, sign it and send a signed
copy to FOCA via e-mail or mail. The NEB notes that this is due to data
protection reasons. Passengers will receive an e-mail when a case is closed.
6
–
12 months
The NEB transfers complaints for which it is not competent to other NEBs and
provides a passenger report form in English as well as a short summary of the
case in either English or French.
FOCA has not used the CPC or ECC networks.
Activity level for claims under 261/2004
Number of
complaints received
2018: 7,167 complaints
2017: 4,218 complaints
2016: 3,656 complaints
2015: 3,953 complaints
2014: 3,532 complaints
2013: 3,527 complaints
2012: 2,263 complaints
2011: 2,393 complaints
The reason for complaints has been relatively constant over the years: 50%
cancelled flights, 40% delays, 6% denied boarding, 4% miscellaneous.
The NEB does not have specific data concerning legitimate compensation
payments as FOCA does not further evaluate cases where airlines make
payments.
FOCA requests evidence from airlines on a case-by-case basis, including general
information on the flight and specific documents on reason of incident, such as
METAR, ATC restriction statements, NOTAM, IATA delay codes, media
publications, cabin crew reports, declaration of captain, airport or authorities
reports, aircraft flight log, technical log, MEL-list, manufacturing report,
maintenance statement or history, PNR, Passenger Care Reports from handling
No information provided.
Length of complaint
processing
261/2004 NEB
cooperation
Nature of complaints
received
Outcome of
complaints
Investigation of
extraordinary
circumstances by the
NEB
January 2020 | 399
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0426.png
Study on the current level of protection of air passenger rights in the EU | Final Report
agents, documentation on strikes and strike actions, flight planning documents,
spare aircrafts and any documentation which gives information relevant for the
case. The NEB then evaluates the evidence received from the airline.
Sanctions
Sanctions entering into force in:
2018: 99 sanctions
2017: 11 sanctions
2016: 15 sanctions
2015: 13 sanctions
2014: 24 sanctions
2013: 14 sanctions
Sanctions range between CHF 100 and CHF 5,000 (approx. 88 to 4,400 EUR).
Inspections and
other relevant
activities
Changes in activity
levels since 2011
FOCA does spot-checks on airports with regard to compliance of Article 14
relating to the provision of information. The NEB noted that there is high
compliance.
The NEB has found that passengers are more aware of their rights than in the
past. Especially during the peak travel seasons, air passenger rights are
discussed in the media. Airlines are also handing out leaflets with air passenger
rights information in case of an incident.
The NEB noted that the growth in the number of complaints received is
proportional to the growth in total number of flights of airlines from and to
Switzerland.
Regulation 1107/2006
National legal basis
The 1999 bilateral air transport agreement between Switzerland and the
European Community established the general principles of cooperation
between the two entities in the field of air transport.
The 2011 annex to the agreement sets out the specific items of European
legislation which apply to Switzerland. The maximum sanction for
infringements of the Regulation is established by Article 91(4) of the Swiss Air
Law.
The NEB can handle individual complaints from passengers.
Role of the 1107/2006 National Enforcement Body
Able to handle
individual
complaints?
Is NEB a first or
second order body?
Enforcement power
of NEB
The NEB is a second order body as passengers must have contacted the
airport/airline initially.
Due to the low number of total cases relating to Regulation 1107/2006, most
cases are handled on the basis of a passenger’s e-mail
or phone request during
the booking process, before the flight instead of a specific completed report
form. The NEB also handles requests from disability organisations.
Based on the evaluation of the case, FOCA could issue sanctions or close the
case without sanctioning. Most requests are usually handled successfully by the
NEB without a formal proceeding. As with Regulation 261/2004, enforcement is
based on the Administrative Penal Law Act which states that the NEB needs to
prove that an airline/airport infringed the Regulation. Art. 91.4 of the Air
Aviation Act furthermore specifies that only in case of repeated or severe
violation sanctions could be imposed. The maximum amount of fine is CHF
20,000 per individual case (EUR 17,500). FOCA could also start proceedings
under the Swiss Equal Treatment of Disabled Persons Act, which it has done for
two cases of the total 27 assessed so far. In 2009, the NEB asked one airline to
January 2020 | 400
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0427.png
Study on the current level of protection of air passenger rights in the EU | Final Report
change its procedure based on the Swiss Equal Treatment of Disabled Persons
Act.
FOCA checks the procedures of airlines and airports in periodical audits and, if
necessary, will request changes based on the outcome of these audits.
No sanctions have been issued for Regulation 1107/2006.
Activity levels for claims under 1107/2006
Claims received
Fewer than five complaints are received annually of which 70% relate to
legitimate issues. In most cases, the NEB receives a request before a flight,
which makes it possible to find a solution and thus avoid a formal complaint.
The NEB notes a high level of quality of service for PRMs despite the growing
number of PRM passengers. At Geneva and Zurich airports, the total number of
PRM assistance requests in 2018 was 366,788, representing a 10% increase
from the previous year. PRM requests at EuroAirport Basel Mulhouse Freiburg
are not included in those figures as the airport is overseen by the French NEB
for Regulation 1107/2006.
Nature of claims
received
The nature of the complaints relates to transportation of mobility aids and
wheelchairs, transportation of assistance dogs, wrong/incorrect coding and
missing/incorrect notifications, assistance on airports, and quality of assistance.
Usually problems such as non-transportation of wheelchairs are already
addressed during booking process before the flight. Dangerous goods issues are
usually the reason for denied transportation of wheelchairs.
There is no specific ADR in place for air passenger rights. However, there is a
general conciliation process applied in case the passenger addresses a civil
court. In such a case, it is mandatory to have this conciliation process first,
before the claim will be judged by the civil court. Addressing a civil court is not
free of charge.
Swiss International Air Lines is signed up to the German ADR body (söp), for
flights departing from Germany only.
Details
Contact
Legally binding
Costs incurred in
ADR by passengers
Costs incurred in
ADR by airlines
Small claims court
procedure
-
-
-
-
-
Alternative/Online Dispute Resolution
Overview
National small claims procedure (individual procedure)
A small claims court procedure does not exist in Switzerland.
Claim agencies (individual procedure)
No statistics are available in relation to complaints submitted by claim agencies
although an increase has been noted, specifically from non-Swiss agencies. The
NEB noted that in the last year three claim agencies have started to operate in
Switzerland. Issues relating to the quality of the complaints have been noted
and as a result, the NEB has set out requirements for claim agencies which has
reduced the number of complaints received. A number of claim agencies send
January 2020 | 401
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0428.png
Study on the current level of protection of air passenger rights in the EU | Final Report
complaints directly to the Swiss courts. The NEB also noted that claim agency
activity in Switzerland may be limited by the fact that CJEU rulings do not apply.
January 2020 | 402
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0429.png
Study on the current level of protection of air passenger rights in the EU | Final Report
F
Non-EU air passenger rights
country fiches
The fiches are presented in alphabetical order.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Australia
Brazil
Canada
China
India
Indonesia
Israel
Japan
Malaysia
Mexico
Morocco
New Zealand
Nigeria
Qatar
Singapore
South Africa
Turkey
United Arab Emirates
United States
January 2020 | 403
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0430.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Australia
Australia
General description
The total number of passengers carried on Australian domestic routes
(including charter) was 63.6 million in 2018, an 1.8% increase from the
previous year. International passenger traffic was 40.6 million in 2017-18 (an
increase of 5.1%).
Australia’s busiest airports in 2018 were the following:
•
Sydney, which recorded 44.4 million passengers;
•
Melbourne, which recorded 36.7 million passengers; and
•
Brisbane, which recorded 23.4 million passengers.
Qantas is the largest carrier in Australia. In 2018, Qantas carried 52.3 million
passengers. In 2017-18, Low Cost Carriers AirAsia X, Cebu Pacific Air, Indonesia
AirAsia, Jetstar, Jetstar Asia and Scoot/Scoot Tigerair together accounted for
15.9% of total international passenger traffic (1.8% decrease from previous
year).
Air passenger rights
data
CHOICE is an Australian consumer advocacy group. Research from CHOICE
found that 22.6% of Australian travellers experienced flight delays or
cancellations on international or domestic flights in 2015-16, with more than
half of those being longer than two hours.
Data published by the Bureau of Infrastructure, Transport, and Regional
Economics shows that in 2018:
•
105,630 flights were delayed, representing 19.2% of flights; and
•
10,319 flights were cancelled, representing 1.9% of flights.
According to the Airline Customer Advocate (ACA), 1,253 eligible complaints
were received in 2017, representing a 17.15% increase from the previous
years.
For a complaint to be eligible to the ACA, it must fulfil two conditions:
•
The customer has already tried to resolve the complaint through the
airline’s procedures; and
•
The event occurred less than 12 months previously.
Flight delays and cancellations, refund requests and fees and charges
represent the biggest areas for customer dissatisfaction. Resolution rates for
these claims increased to just over half (52%).
Air passenger rights
framework
The Australian aviation sector is overseen through a combination of industry
and regulatory bodies. The laws surrounding liability of carriers in Australia are
administered under both international conventions and domestic legislation.
The Department of Infrastructure and Regional Development is the responsible
governmental body for aviation. The Department advises the Government on
the policy and regulatory framework applicable to the wider aviation industry,
including issues relating to consumer protection.
Through the Civil Aviation (Carriers’ Liability) Act 1959, Australia has
implemented and given force to a number of international conventions,
including the 1999 Montreal Convention and the Montreal No. 4 Convention.
Part IV imposes liability on a carrier, with certain exceptions, for injury or death
caused to a passenger, or for the loss or damage to a passenger’s baggage.
January 2020 | 404
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0431.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Australia
Australia does not have any consumer legislation specific to aviation. Air
passengers are protected by the Australian Consumer Law (ACL), in schedule 2
of the Competition and Consumer Act 2010 which came into force in 2011. The
Australian Consumer Law provides more generalised consumer protection and
guarantees, applying across many industries instead. The Law applies to
domestic and international flights departing Australia, as well as international
flights to Australia where they are booked through the Australian website of an
airline. The Australian Competition and Consumer Commission (ACCC) was
created in 1995 to enforce relevant legislation ensuring and maintaining
competition while protecting the interests and safety of consumers.
Timetables are not guaranteed by airlines, with the contract between
passenger and airline only covering the transportation from one place to
another. As such, airlines may not necessarily take responsibility if passengers
are delayed and/or fail to reach a connecting flight.
Right to mobility
Under the Disability Discrimination Act 1992 (DDA) and the Disability Standards
for Accessible Public Transport 2002 (DSAPT), service providers are obligated
to not unlawfully discriminate passengers with disability in providing public
transport services. The DDA applies to both domestic and foreign airlines, as
well as Australian Airports.
No direct provision for the rights of disabled or handicapped air passengers
exists. However, the Civil Aviation Safety Authority (CASA) has made a number
of Civil Aviation Orders (CAO) for processes and procedures around PRM
mobility.
CAO 20.16.3 specifies that the carriage of handicapped passengers must satisfy
three requirements:
•
the operator shall establish procedures that identify as far as possible
people who are handicapped;
•
the operator shall ensure that handicapped persons are not seated in an
aircraft where they could in any way obstruct or hinder access to any
emergency exit by other persons on the aircraft; and
•
the operator shall ensure that there are procedures in place to enable
particular attention to be given to any disabled passenger in an
emergency, as well as ensure that individual briefings on emergency
procedures are given.
The penalty for non-compliance with the Regulation is defined at 50 penalty
units (currently listed as 210 AUD (132 EUR).
Right to information
before purchase and
at the various stages
of travel, notably in
case of disruption
Information provided depends on the different airlines’ conditions of carriage,
as outlined below.
Virgin Australia, Qantas, Jetstar and Tiger will make reasonable efforts to
inform the passenger of any changes to the scheduled flight time using the
contact details provided by the passenger. Additionally, Jetstar will inform a
passenger with a least one month’s notice of any changes to the
fees or
charges applied to a passenger’s ticket.
Passenger rights to renounce travelling depends on the individual airline’s
Conditions of Carriage. As outlined below, in cases where the disruption is
within airlines’ control, an option for a refund or credit note/voucher is offered
by all four carriers. In cases where disruption is outside of airlines’ control,
Virgin Australia and Qantas will offer the passenger a credit note/voucher or
Right to renounce
travelling when trip
not carried out as
planned
January 2020 | 405
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0432.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Australia
refund, respectively. Jetstar and Tiger do not provide refunds if the disruption
is outside their control
Right to fulfilment of
the transport
contract in case of
disruption
Under the ACL, all services must be supplied within a reasonable time. Both
domestic and international flights leaving Australia come under the ACL.
Specific passenger rights with regards to fulfilment of the transport contract
depends on the individual airline’s Conditions of Carriage, outlined below.
Note that none of these four airlines guarantees its flight times.
If delay/cancellation is within the airlines control:
Virgin Australia:
passenger put on next available flight if delay >2hrs; no option
for refund but credit notes valid for 12 months given; refreshment vouchers
will be given at two-hour intervals and, depending on the length of the delay,
hotel accommodation and transport to/from the hotel with up to 50 AUD (31
EUR) per person per night for meals.
Qantas:
passenger put on next available flight if Qantas makes significant
change to original flight time; option for a refund is given; meal/refreshment
vouchers will be given, or the reasonable cost reimbursed and, depending on
the length of the delay, assistance will be provided to find overnight
accommodation, or the reasonable cost reimbursed.
Jetstar:
passenger put on next available flight if Jetstar makes significant
change to original flight time; option for a refund is given; meal vouchers will
be given for delays >3hrs or the reasonable costs reimbursed if the delay is
overnight; Jetstar offers up to 150 AUD (94 EUR) accommodation
reimbursement per room.
Tiger:
passenger put on next available flight; option for a refund is given;
passengers are offered up to 120 AUD (75 EUR) per person per night for
accommodation if delay is overnight.
If delay/cancellation is outside the airlines control:
Virgin Australia:
passenger put on next available flight if delay >2hrs; no option
for refund but credit notes valid for 12 months given; the airline does not cover
meal/refreshments or accommodation but will attempt to assist passengers in
finding a hotel and transport.
Qantas:
airline will use “reasonable endeavours” to rebook passengers on next
available flight; option for a refund exists if Qantas cannot rebook the
passenger; no provision for meals/refreshments or accommodation.
Jetstar:
airline will “try to assist” passenger but option for a refund is not
covered by the conditions of carriage; no provision for meals/refreshments or
accommodation.
Tiger:
passenger put on next available flight; option for a refund is not given
but instead passengers can get a credit note valid for booking for six months;
no provision for meals/refreshments or accommodation.
In the event that a flight is overbooked, and the airline has to deny you
boarding, all 4 airlines will provide the passenger a seat on the next available
January 2020 | 406
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0433.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Australia
flight. If this is not satisfactory to the passenger, they may be entitled to
compensation under the airline’s denied boarding compensation policy or the
ACL. Specific details on the terms of these policies with regards to
compensation cannot be found.
Right to get
assistance in case of
long delays at
departure or
connecting points
Right to
compensation under
certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
No rights to assistance are stated in the ACL. Air passenger rights to assistance
depends on the individual airline’s Conditions of Carriage, as outlined above.
Standard compensation is not available under
the airlines’ conditions of
carriage.
For domestic flights, passenger rights to carrier liability are governed by the
Civil Aviation Act 1959. The limit for bodily injury or death is 725,000 AUD
(455,975 EUR). The limit for lost or damaged checked baggage is 1,600 AUD
(1,006 EUR) and for carry-on baggage is 160 AUD (106 EUR).
For international flights, passenger rights to carrier liability are governed by
the Montreal Convention.
Right to a quick and
accessible system of
complaint handling
Passengers can contact the airline directly to make a compensation claim
following delays or cancellations. If this proves unsuccessful, passengers can
then take their complaint to the Airline Customer Advocate (ACA) after waiting
a required number of days. ACA was set up in 2012 is funded by participating
airlines in Australia (Qantas, Virgin Australia, Jetstar, Tiger and REX airlines all
take part in the scheme) and provides a free and independent complaint
resolution process. ACA will respond to passenger complaints within 20
business days, provided they have already launched a complaint with the
airline directly and received either an unsatisfactory or no response.
In 2017, 48% of received claims were not resolved. The report period for
average complaint finalisation timeframes also increased from 14 to 16
calendar days.
Right to full
application and
enforcement of law
Air travellers can pursue their complaint with the Airline Customer Advocate,
the Australian Competition and Consumer Commission, state/territory fair
trading authorities or seek redress under the Australian Consumer Law
through the legal system. Alternative dispute resolution systems also exist as
the following three types: facilitative, advisory and determinative. CHOICE has
previously raised various systemic concerns with the legal protections available
to Australian air travellers.
The enforcement of the Australian Consumer Law is the responsibility of the
ACCC and state or territory fair trading authorities. The Australian Human
Rights Commission is responsible for the enforcement of anti- discrimination
legislation regarding access to air travel.
January 2020 | 407
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0434.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Brazil
Brazil
General description
Air passenger traffic in Brazil reached over 103 million passengers carried in
2018. Brazil is the third largest domestic aviation market in the world and has
six of the 10 busiest airports in Latin America.
The largest airlines are LATAM Airlines, Gol Airlines, Avianca Airlines and Azul
Linhas Aereas. The domestic market share split of the 4 major airlines are 25%,
29%, 11% and 31% respectively.
The busiest airports in Brazil by annual passenger traffic in 2017 are listed
below.
•
Guarulhos International Airport - São Paulo, 37.8 million
•
Congonhas Airport - São Paulo, 21.9 million
•
Brasilia International Airport, 16.9 million
•
Galeao International Airport - Rio de Janiero, 16.2 million
Air passenger rights
data
The following statistics have been provided by the National Civil Aviation of
Brazil (ANAC).
Cancelled flights: 2011 8.7%; 2012 7.0%; 2013 7.8%; 2014 10.3%; 2015 10.5%;
2016 7.4%; 2017 2.6%
Consumidor.gov.br was developed by the National Consumer Bureau
(Senacon) and is monitored in conjunction with consumer protection agency,
regulatory agencies and other public agencies. Complaints registered with
Consumidor.gov.br are used to improve consumer protection policies.
In 2018, over 27,000 claims were registered on consumidor.gov.br. From 2019,
all airlines operating in Brazil will be registered with consumidor.gov.br. Since
the launch of the Consumidor.gov.br platform, the number of consumers filing
complaints has significantly increased. As a result, ANAC has made it
mandatory for airlines to engage in this platform.
2013: 12,555 complaints registered in ANAC.
2014: 16,730 complaints registered in ANAC.
2015: 18,850 complaints registered in ANAC.
2016: 17,613 complaints registered in ANAC.
2017: 16,923 complaints registered in ANAC.
2017: 11,249 complaints registered in Consumidor.gov.br.
2018: 27,119 complaints registered in Consumidor.gov.br.
(In 2018, 1.2% of these complaints concerned PRM issues)
In 2018, approximately 72% of complaints registered in Consumidor.gov.br
were resolved.
The most common complaints in 2018 were about; flight execution, values and
contract rules, offer and buying process, contract changes by the airline,
baggage, contract changes by passenger, reimbursement, check-in, and PRM.
Air passenger rights
framework
Air passenger rights in Brazil are governed by Resolution No. 400 of 2016
established by the National Civil Aviation Agency of Brazil (ANAC). The
Resolution is applicable to both domestic and international flights on all
commercial airlines operating in Brazil.
January 2020 | 408
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0435.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Brazil
Right to mobility
ANAC established Resolution No. 270 of 2013 to provide procedures
concerning the accessibility of passengers requiring special assistance on air
transport.
Passengers in need of special assistance should notify the airline at least 48
hours before, and in cases when a travel companion is needed, an airline
should be notified at least 72 hours before.
The airline is responsible for assisting passengers who require special
assistance from check-in until access to the public area after disembarkation.
With regards to assistance provided in case of delayed flights, passengers
needing special assistance and their companions will always be entitled to
hotel accommodation, regardless of the requirement of an overnight stay at
the airport. Technical aids used by passengers for mobility purposes must be
carried by airlines free of charge. Any mobility equipment transported of
behalf of the passenger must be made available immediately upon arrival. If
any equipment is lost or damaged, the airline must provide an equivalent
replacement immediately upon arrival. At all points of travel, passengers with
reduced mobility must be given priority.
Resolution No. 280 states that passengers requiring a travel companion will be
provided one by the airline at no extra charge. Alternatively, the passenger will
be able to bring their own travel companion, who will be able to sit next to
them and pay a maximum of 20% of the fare paid by the passenger.
Right to information
before purchase and
at the various stages
of travel, notably in
case of disruption
Article 4 of Resolution No. 400 states that the carrier must provide the
following information to the user:
•
Total price of the airline ticket to be paid in local currency, broken down
by value of air transport services, airport charges and government taxes.
•
The rules in the case of no-show, rebooking and refunds.
•
Relevant connection times and possible interchanges within the airport.
•
Baggage rules.
Resolution No. 400 specifies right to information during disruption to a flight.
In the case of disruption, the airline must immediately inform the passenger
that the flight will be delayed and must inform the passenger at least every 30
minutes on the new forecasted departure time. In the event of delay,
cancellation or interruption of service, information about the reasons behind
the disruption must be provided in writing by the carrier, whenever requested
by the passenger.
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport
contract in case of
disruption
The airline may change the time of the flight within 30 minutes for domestic
flights and 1 hour for international flights, as long as the change is notified at
least 72 hours before the original flight date. If these requirements are not
met, the airline must offer a new flight option or full reimbursement.
In the case of cancellation or delay of more than 4 hours, Resolution No. 400
states that a passenger is entitled to re-booking or refund options. A passenger
is eligible to receive a full ticket refund or be provided with alternate means of
transport chosen by them.
In cases of denied boarding, the airline should look for volunteers who agree to
board another flight by receiving benefits (money, extra tickets, miles, hotel
accommodation, etc.) to be freely negotiated with the passengers. If a
passenger accepts benefits, the airline is allowed to request the passenger to
January 2020 | 409
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0436.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Brazil
sign a receipt as a proof the proposal was accepted. As well as material
assistance, compensation will be provided to all passengers denied boarding.
Right to get
assistance in case of
long delays at
departure or
connecting points
The airline must offer material assistance (means of communication, food and
accommodation) in cases of delay, cancellation, interruption of flight and
denied boarding, when the passenger is at the airport.
The passenger will be eligible for the following assistance, starting from the
time of the original time of departure.
•
1 hour of delay: assistance for communication (internet, phone calls, etc.)
•
2 hours of delay: assistance for food (voucher, snack, drinks, etc.);
•
4 hours of delay or more: hotel booking (only in case of overnight stay at
the airport) and transportation to and from the hotel.
In the cases of denied boarding, the airline must pay financial compensation to
the passenger. For domestic flights, 250 SDR (310 EUR) must be paid and 500
SDR (620 EUR) must be paid for international flights.
Compensation for cancellations or long-delays is not applicable.
Rights to carrier
liability towards
passengers and
baggage
ANAC adopts the rules of the Montreal Convention with regards to lost,
damaged or delayed baggage for both international and domestic flights
ANAC states that in the case of baggage loss, the passenger shall receive a
refund to cover expenses while away from their residence. The airline has up
to 7 days to pay for refunds after the passenger presents the receipt. In the
case of baggage damage, the passenger should register a formal claim with the
airline, which must be registered within 7 days. The airline must repair the
damage or replace the baggage. In the case of baggage violation, once the loss
is proven, the airline must indemnify the passenger.
ANAC is the organization responsible for air passenger rights. ANAC does not
handle passenger complaints on an individual basis but gathers information to
identify reoccurring issues. If appropriate, ANAC will apply sanctions to the air
carrier.
Recently, the agency has adopted an official government channel for online
dispute resolution (consumidor.gov.br). The consumer can register a
complaint, and the airline has up to 10 days to directly respond to it. After the
air carrier’s response, the consumer can evaluate it and this response will then
become public. If a passenger is not satisfied with the response, they can take
this to a special civil court, where the process can take between 3 and 24
months.
ANAC monitors and evaluates these complaints, and publishes public bulletins
pointing out the performance of each airline, this information is made publicly
available on the ANAC website.
Right to full
application and
enforcement of law
The National Civil Aviation Agency of Brazil (ANAC) is a regulatory agency
which was established to regulate and inspect civil aviation activities as well as
aeronautical and airport infrastructure in Brazil. The Agency is responsible for
the regulation, inspection and certification of aircraft, companies,
manufacturers, aircraft maintenance organizations, aerodromes, schools and
civil aviation professionals. ANAC works to ensure civil aviation safety and
security. ANAC also aims to ensure that good-quality air transportation
services are provided. This includes regulating air passenger rights and
monitors and inspects commercial companies that are not complying with the
agency’s regulations.
Right to
compensation under
certain
circumstances
Right to a quick and
accessible system of
complaint handling
January 2020 | 410
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0437.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Brazil
Resolution No. 400 of 2016 governed by ANAC, establishes general conditions
on air transport and focusses on air passenger rights. Failure to comply with
this resolution can lead to sanctions of up to 50,000 BRL (11,260 EUR).
Resolution No. 280 of 2013 governed by ANAC, aims to provide passengers
with special assistance needs access to air transportation. Failure to comply
with this resolution can lead to fines of up to 25,000 BRL (5,675 EUR) for either
the airline or airport.
The National Consumer Bureau (Senacon) is the coordinator of the National
System of Consumer Protection and is responsible for formulating, promoting,
supervising and coordinating the National Consumer Protection and Defense
Policy. Senacon participates in public hearings at the National Congress,
debates and meetings about the regulations made by ANAC.
January 2020 | 411
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0438.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Canada
Canada
General description
In 2018, Canada’s airports handled approximately 150 million passengers.
The main Airports in Canada, and their annual passengers handled in 2018 are:
•
Toronto Pearson International Airport, 49.5 million
•
Vancouver International Airport, 25.9 million
•
Montreal
–
Pierre Elliott Trudeau International Airport, 19.4 million
•
Calgary International Airport, 17.3 million
The main airlines are Air Canada and West Jet, with the domestic market share
in 2018 being 46% and 34% respectively.
Air passenger rights
data
Air passenger rights
framework
Relevant data has not been found.
Air passenger rights in Canada are set out in the airline’s “tariff.” A tariff is an
airline’s contract with passengers and is equivalent to its Conditions of
Carriage. It contains terms and conditions about how the airline will deal with
issues like denied boarding, delays, cancellations, passenger re-routing, and
lost or damaged baggage. Whilst these tariffs are established under the terms
and conditions set out by the Air Transportation Regulations (ATR), the air
carriers are permitted to set out their own policies in these areas.
Air carriers must:
•
Set tariff terms and conditions that respect certain legal requirements, are
reasonable and fair, and applied the same way for everyone, as much as
possible;
•
Clearly display the tariff at their offices and on their websites; and
•
Apply the terms and conditions of carriage as stated in their tariff.
By law, all carriers operating publicly-available air services to, from or within
Canada are required to have tariffs for those services and make them available
to the public at their business offices in Canada and on their websites when
used for selling air transportation. Carriers must respect their tariffs at all
times.
In 2008, the Government of Canada introduced Flight Rights Canada (FRC), an
air passenger rights initiative that included a voluntary code of conduct for
airlines.
In 2009, Canada’s largest carriers –
Air Canada, WestJet and Air Transat
–
agreed to the code and adjusted their tariffs to address flight and tarmac
delays, cancellations, overbooking, and lost or damaged baggage.
The Canadian Transport Act, which was amended in May 2018, requires the
Canadian Transportation Agency (CTA) to create new air passenger protection
regulations and set a framework for these regulations. This framework is in the
process of being formally agreed and will be phased in over the second half of
2019. The proposed regulations were published in the Canada Gazette for a
public consultation period in early 2019. These regulations would ensure
clearer, more consistent passenger rights by establishing minimum
requirements, standards of treatment, and in some situations minimum levels
of compensation that all air carriers must provide to passengers. The
regulations would also address other consumer-related issues such as the
transportation of minors and a housekeeping change related to air services
January 2020 | 412
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0439.png
Study on the current level of protection of air passenger rights in the EU | Final Report
price advertising. The proposed regulations would apply to all flights to, from
and within Canada, including connecting flights.
Right to mobility
For flights between Canada and the U.S, all carriers are subject to the U.S
Department of Transportation’s rule on ‘Non-Discrimination
on the Basis of
Disability in Air Travel’ (14 CFR Part 382).
The terms of the tariff require the airline to not be unjust, unreasonable,
unduly discriminatory or create undue obstacles to the mobility of persons
with disabilities.
Air Canada Tariff Rule 40:
For certain medical conditions, for example severe allergies and epilepsy, the
passenger must provide at least 48 hour’s advance notice and obtain medical
approval before travel. Passengers who cannot care for themselves without
assistance must be accompanied at all times and must provide a medical
certificate to fly with Air Canada. Passengers requiring a specific seating
requirement must request this at least 24 hours prior to departure. Air Canada
will carry necessary mobility requirement on behalf of the passenger and
requires 48 hours’ notice for this. Any passengers requiring wheelchair
assistance at the airport, will upon request, be provided with wheelchair
assistance to and from the door of the aircraft throughout the journey. West
Jet’s tariff provides
the passenger with the same rights, and similarly requires
the passenger to give at least 48 hours’ notice to access assistance services.
All Canadian carriers are required to provide, at no extra cost, any additional
seating or floorspace necessary for service animals, support persons or
disability accommodation on any domestic flights. This is currently not a
requirement for international flights. For any flights between Canada and the
U.S, air carriers are required to offer PRM passengers with accessible seating
based on 14 CFR Part 382. Cases where the passengers requires 2 seats for
example, can still be subject to additional costs.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
In cases of flight disruption, both Air Canada and WestJet aim to notify the
passenger as soon as possible. Passengers will be contacted either via text
message or email. WestJet will update its passengers every 10 minutes on the
aircraft during flight disruption.
The proposed regulation requires airlines to notify passengers as soon as
possible and provide regular status updates. In addition, airlines would have to
provide passengers with simple and clear information on their terms and
conditions for flight delay or cancellation, denied boarding, lost or damaged
baggage and the seating of children under 14 years of age. Airlines will also be
required to ensure that official ticket resellers provide this information to
customers.
Have not found information on rules of displaying fare information.
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
Air Canada and WestJet state that if after the passenger has been denied
boarding or their flight has been delayed/cancelled and they are not satisfied
with the options provided, the passenger will be entitled to a full refund of the
price of the ticket.
All air carriers set out the rights to fulfilment of the transport contract in their
tariff, these vary slightly between them. In the case of overbooked flights, both
Air Canada and WestJet’s tariffs state that they will make a public request for
January 2020 | 413
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0440.png
Study on the current level of protection of air passenger rights in the EU | Final Report
any volunteers willing to take a later flight. If not enough volunteers have
come forward, the airline will have to involuntarily deny passengers boarding.
Both voluntary and involuntary passengers denied boarding will be offered re-
routing and refund options as stated in the air carriers’ tariffs. In addition to
communication, food and accommodation assistance provided, both air
carriers will provide monetary compensation.
In the case when the air carrier has suspended, delayed or cancelled the flight,
the passenger will be given either the option for a complete refund or re-
routing. Air Canada will offer the passenger the next available flight on its own
services. West Jet will attempt to do the same, and if this is not possible will
then rebook the passenger on the next available flight operated by another
airline’s services.
The proposed regulation splits the obligations of air carriers in the case of a
flight delay or cancellation into 3 categories:
•
Situation within the airline’s control;
•
Situation within the airline’s control but required for safety purposes; and
•
Situation outside airline control.
The airlines will have to follow different rights depending on which definition
the scenario fits into.
In the case when airlines are in control and it is not a matter of safety,
minimum levels of compensation have been set out based on the size of the
airline. This differentiation is intended to support new entrants and small
community carriers operating in remote regions.
For all types of flight delays or cancellations, airlines would have to ensure that
the passenger is able to get to their final destination.
In cases when the delay or cancellation is within their control, airlines would
have the following requirements: to:
•
Once the delay has exceeded 3 hours, an airline would need to rebook the
passenger on its next available flight or on that of partner airline.
•
Airlines would need to rebook on the next available flight on a competing
airline if their own next available flight exceeds 9 hours after original
departure time.
•
Airlines would have to offer their passenger a refund, as well as
compensation if travel is no longer needed or the rebooking does not
meet the
passenger’s travel needs.
All passengers should be rebooked in the same class of service.
In the event of a flight disruption outside the airline’s control, a large airline
would be required to rebook using the services of a competing airline, if their
own next available flights would not depart within 48 hours.
Right to get assistance
in case of long delays
at departure or
connecting points
All air carriers set out the rights to assistance in their tariff, these vary slightly
between them:
•
Air Canada: In the case of a delay within its control, the passenger will be
offered a meal voucher after 4 hours, and after 8 hours the passenger may
be entitled to hotel accommodation subject to availability. In the case of a
major disruption, the passenger will be offered the option to travel via rail
if available.
January 2020 | 414
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0441.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
WestJet: The airline will provide a meal voucher after 3 hours of delay, and
a hotel voucher after 8 hours of delay. In the case of a tarmac delay,
WestJet will provide drinks and snacks, and after 90 minutes will return
the aircraft to the gate.
The proposed regulation states that any delayed flight within the air carrier’s
control, regardless of if it is a tarmac delay or a delay at the airport must
provide means of communication and refreshments after 2 hours. Once a
delay extends overnight, airlines would have to additionally offer
accommodation, as well as free transportation to the accommodation.
Right to compensation
under certain
circumstances
In the case of a flight delay, each airline has different amounts of
compensation set out in its tariff. For a flight delay in WestJet’s control, it will
provide compensation in the form of travel credit using WestJet dollars (1
WestJet dollar = 1 CAD) for any delay longer than 3 hours. No details of
compensation were found in Air Canada’s tariff.
The proposed regulation sets out minimum levels of compensation for delayed
or cancelled flights
within the air carrier’s control. For delays on large airlines
of 3-6 hours, 6-9 hours, and more than 9 hours, the passenger is entitled to
400 CAD (265 EUR), 700 CAD (465 EUR) and 1,000 CAD (665 EUR) respectively.
Slightly lower levels of compensation are set for small airlines.
In the case of involuntary denied boarding, each airline has different amounts
of compensation set out in its tariff:
•
WestJet: The airline will provide a passenger 200% of the total price paid
for the original flight, to a maximum of 675 CAD (450 EUR), for cases
where the passenger will arrive between 1 to 2 hours after the original
arrival time. For cases over 2 hours, the passenger will be paid 400% of the
original air fare, to a maximum of 1,350 CAD (900 EUR).
•
Air Canada: The airline will offer 200 CAD (133 EUR), 400 CAD (266 EUR)
and 800 CAD (533 EUR) in the event a passenger arrives 0 to 2 hours, 2 to
6 hours and over 6 hours after their original arrival time respectively.
The proposed regulation states minimum levels of compensation for any
passenger who is denied boarding. For passengers delayed 0-6 hours, 6-9
hours and more than 9 hours, the compensation is 900 CAD (600 EUR), 1,800
CAD (1,200 EUR) and 2,400 CAD (1,600 EUR) respectively. The compensation
will have to be issued at the time the passenger is notified of the denied
boarding.
Rights to carrier
liability towards
passengers and
baggage
Every air carrier has limits on its liability outlined in their tariffs. The liability of
the carrier with respect of the death or injury of a passenger is governed by
the Carriage by Air Act and the Montreal Convention.
Under the Montreal Convention, airlines can be held liable for baggage that is
damaged or lost during international travel, up to 1,131 SDR (1,404 EUR). The
proposed regulation would require airlines to follow this scheme for domestic
travel in addition to international travel. Currently the liability of a carrier with
respect to lost baggage for domestic travel varies between air carriers.
Passengers on WestJet are entitled for the value of the delayed baggage, to
the maximum of 1,131 SDR (1,400 EUR) of more than 21 days. Passengers on
Air Canada are entitled to up to a maximum of 1,500 CAD (990 EUR) in the case
of lost, damaged or delayed baggage.
January 2020 | 415
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0442.png
Study on the current level of protection of air passenger rights in the EU | Final Report
The proposed regulation states that passengers will have the right to transport
their mobility aid used for travel as priority baggage free of charge in the cargo
hold. Passengers have the right to replacement of their mobility aid after a
delay of 96 hours. In the meantime, passengers have the right to a temporary
replacement mobility aid.
Right to a quick and
accessible system of
complaint handling
The Canadian Transport Agency provides two methods of handling a
passenger’s complaints. Firstly, it offers an informal dispute resolution process.
Passengers who are not satisfied with how the air carrier has dealt with their
issue, can after 30 days file a complaint through the Agency via an online
complaints form. Secondly, a court-like complaints process for cases when the
passenger feels like the airline’s tariff is unclear, unjust, unreasonable or
discriminatory. In addition, travellers with a complaint related to a disability or
health issue can submit an accessibility complaint. No change to this complaint
process is mentioned in the proposed regulation by CTA.
Additionally, passengers can make complaints via the Canadian Human Rights
Commission (CHRC), provincial human rights bodies or with small claims
courts.
Right to full application
and enforcement of
law
The Canadian Transportation Agency is the responsible body for air passenger
rights. Under the current system, passengers can complain to the CTA via
either the online complaints form or through the court-like complaint
processes explained above.
The proposed regulation would require airlines to follow the regulations set
out in the Act, an airline would be subject to a penalty of 25,000 CAD (16,580
EUR) per incident for non-compliance.
January 2020 | 416
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0443.png
Study on the current level of protection of air passenger rights in the EU | Final Report
China
China
General description
The number of passengers handled at Chinese airports has increased by over
200% from 406 million in 2008 to 1.26 billion in 2018. The number of available
seats was recorded as 624 million in 2017, with domestic seats still dominating
the traffic capacity.
The 4 largest Chinese airports and their passengers in 2018 are;
•
Beijing Capital International Airport, 100.9 million
•
Shangai Pudong International Airport, 74.0 million
•
Guangzhou Baiyun International Airport, 69,7 million and
•
Chengdu Shuangliu International Airport, 53.0 million.
The nation’s three largest airlines are:
•
Air China
•
China Southern Airlines
•
China Eastern Airlines
Air passenger rights
data
Delay is a key problem for Chinese airports, with punctuality statistics showing
an average flight delay of 24 minutes in 2017 for all Chinese airports. At the 13
Chinese airports that rank among the world’s top 100, the situation is even
worse with flights being delayed 43 minutes on average. Weather is one of the
top causes of delay, causing more than 50% of all delays in 2017. Furthermore,
air pollution plays an important role restricting visibility and leading to
cancellations in extreme cases.
In 2017, the highest percentage of complaints for domestic airlines was due to
flight problems (52%), followed by issues with reservations/ticketing/boarding
(17%) and refunds (11%). For foreign airlines the reasons for claims were
similar, with 33% of claims relating to flight problems, followed by
reservations/ticketing/boarding (25%) and baggage (18%).
Air passenger rights
framework
Air Passenger rights in China are governed by the Regulations on the
Management of Flight Regularity, issued by the Chinese Ministry of Transport
in 2016 and came into effect on 1
st
January 2017. The regulation applies to
activities of domestic carriers as well as carriers from Hong Kong SAR and
Taiwan, airports, and other air service providers. The regulation also applies to
foreign carriers that depart or stop over within Chinese territories (excl. Hong
Kong, Macao and Taiwan) in relation to the management of flight regularity,
delays and passenger complaints. It sets out airlines obligations on maintaining
flight regularity and providing services in case of delay and cancellation. The
Regulation does not include information on denied boarding. Consumers are
encouraged to take out their own insurance to compensate against delays and
cancellations. For passenger rights which are not stated in the Regulation,
passengers can rely on the individual airline’s conditions of carriage.
Persons with reduced mobility, and unaccompanied minors should be given
priority in receiving the required care as soon as possible in the case of
disruption. Carriers, airports and groundhandling service agents should provide
mobile assistance services free of charge to PRMs.
Carriers should guarantee the right of PRM to travel and, as such, should not
deny boarding unless there is a clear legal or safety basis. The carrier can
decide on a maximum number for transporting PRMs who are not
accompanied but need assistance when evacuated. Service dogs are allowed to
accompany disabled passengers during the flight.
Right to mobility
January 2020 | 417
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0444.png
Study on the current level of protection of air passenger rights in the EU | Final Report
China
PRMs are expected to submit information on specific requirements, for
instance the need for medical oxygen on board or service dogs, to the carrier
at the time of booking or no later than 48 hours before departure time.
Airports are expected to have a comprehensive service counter at the main
entrance of the terminal to provide flight information for PRMs and assist with
communication with the carrier. PRMs should receive priority boarding and
unaccompanied PRMs will be seated at the front of the plane.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
The Regulation requires carriers to disclose their General Conditions of
Carriage during the ticket booking process. These should specify the relevant
service levels/assistance in the event of cancellation or delay. For local carriers
the General Conditions of Carriage additionally have to specify whether
compensation will be payable in the event of delay, as well as outline the
conditions, standards, and method of compensation.
Passengers have the right to be informed about the reasons for cancellations
within 30 minutes after the airline received information about the flight
disruption.
In the case of tarmac delay, where passengers wait on-board for longer than
aircraft taxiing time limits as regulated by the airport after closing/before
opening the cabin door, passengers have a right to get information about
reason(s), estimated delay period, and other flight information from the airline
every 30 minutes.
For “large area flight delays”, where a large number of passengers have to be
detained in an airport, the airport and all operation units need to establish a
coordinating mechanism for sharing flight information, coordinating flight
release and passenger services.
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
(1)
As stated below, for cancellations and delays (whether within or beyond the
airline’s control) the passenger will be given the option to be reimbursed.
For cancellations and delays (whether within or beyond
the airline’s control),
the airline has to either endorse the service or reimburse the passenger.
The Regulation does not contain information on passenger rights in the event
of denied boarding. For denied boarding passenger rights are governed by the
airline’s
Conditions of Carriage.
In the event that that a passenger has been involuntarily denied boarding due
to an overbooked flight, Air China will:
•
Try to arrange the passenger a seat on the next available flight;
•
Refund the passenger the cost of the ticket;
•
Re-route the passenger; and
•
Provide free accommodation for passengers who have an overnight stay.
Under the regulation, carriers are required to provide passengers depending
on the circumstances:
•
If the delay is caused by the carrier itself, for example due to aircraft
maintenance, flight deployment, crew or similar reasons, carriers are
required to provide passengers with a meal and accommodation.
(2)
(3)
Right to get assistance
in case of long delays
at departure or
connecting points
January 2020 | 418
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0445.png
Study on the current level of protection of air passenger rights in the EU | Final Report
China
•
In the case of extraordinary circumstances such as weather, air traffic
control, security issues or passengers, the carriers are obliged to assist the
affected passengers in making arrangements but do not have to
compensate (i.e. refund) passengers for those costs.
Under
Air China’s policy, for delays less than two hours, passengers will be
offered at least one beverage. For delays of two hours and above, passengers
will be entitled to a meal.
For domestic carriers on a stop-over or on a diverted flight operated by a
domestic carrier the airline needs to prove services for the passenger
irrespective of the cause of delay or cancellation. This also applies in the event
of emergency landing, irrespective of the cause of the emergency situation.
In case of tarmac delay, where passengers wait on-board for longer than
aircraft taxiing time limits as regulated by the airport after closing/before
opening the cabin door, passengers must have access to lavatory facilities. If
tarmac delay exceeds two hours, food and water needs to be provided. In the
case of a tarmac delay exceeding three hours and no definite take-off time, the
airline needs to arrange for disembarkation. The obligations relating to tarmac
delay are the same irrespective of whether the delay is within the airlines
control or not.
Under Air China’s policy, in the case a flight is delayed for more than 3 hours,
the aircraft will be brought back to the gate.
Right to compensation
under certain
circumstances
Obligations to provide compensation (i.e. reimbursement) for services such as
meals and/or accommodation in case of delay or cancellation apply for all
carriers if it is within the control of the airline and additionally to all domestic
carriers at a stopover, or if passengers are on a diverted flight operated by a
domestic carrier. Compensation includes an endorsement of the service or a
reimbursement. In all other cases, the passenger has to bear the costs of
services such as food and/or accommodation.
In accordance with Article 126 of the CAL (the Civil Aviation Law of China), the
carrier assumes liability for the losses to passengers, baggage or cargo caused
by delays. Where it is evident that necessary measures were taken by the
carrier or its agents to avoid losses or such measures were impossible
(including bad weather or air traffic control), the carrier will not be liable.
Additionally, China has signed the Warsaw and Montreal Convention.
The Regulation states that airlines need to make their contact information
within China available to passengers, including an email address with which
passengers can lodge a complaint. Foreign airlines should have capabilities to
handle complaints in Mandarin.
Passengers can submit a complaint with airport groundhandling agents, sales
agents or CAAC. Alternatively, they can choose to file for arbitration or civil
lawsuit.
Passengers should receive an update on the status of their complaint within
seven days and carriers are required to send a response within either 10 days
(for local carriers) or 20 days (for foreign carriers) from date of receipt.
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
January 2020 | 419
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0446.png
Study on the current level of protection of air passenger rights in the EU | Final Report
China
Right to full application
and enforcement of
law
The National Enforcement body in China is the Civil Aviation Administration of
China (CAAC). It is the aviation authority under the Ministry of Transport.
Other protection agencies in place are; regional administrations, the Customer
Affairs Centre and the Chinese Air Transport Association (CATA).
Airlines that violate the Regulation are either given a warning and/or face a
fine of up to ¥100,000 (12,950 EUR).
January 2020 | 420
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0447.png
Study on the current level of protection of air passenger rights in the EU | Final Report
India
India
General description
Airports Authority of India (AAI) operates 126 airports in India. The busiest
airports in India in 2018 were:
•
Indira Gandhi International Airport, Delhi
–
69 million passengers
•
Chhatrapati Shivaji Maharaj International Airport, Mumbai
–
49 million
passengers
•
Kempegowda International Airport, Bangaluru
–
33 million passengers
•
Chennai International Airport, Chennai
–
23 million passengers
•
Netaji Subhas Chandra Bose International Airport, Kolkata
–
22 million
passengers
IndiGo is the largest airline in India and carried 52.1 million passengers in
2018. Other major airlines in India are; SpiceJet, Air India and Jet Airways. Jet
Airways ceased operations in May 2019. The market share as of 2018 for
domestic flights in India was:
•
IndiGo - 41.5%
•
Jet Airways - 13.8%
•
SpiceJet -12.3%
•
Go Air - 9.0%
Air passenger rights
data
According to analysis undertaken by the Directorate General of Civil Aviation
(DGCA), on-time performance based on 4 airports (Bangalore, Delhi,
Hyderabad and Mumbai) for the month of December 2018 was reported as
follows:
•
IndiGo - 72.3%
•
Jet Airways - 69.7%
•
SpiceJet - 77.9%
•
Go Air
–
83.0%.
During December 2018, the cancellation rate for domestic airlines was as
follows:
•
IndiGo
–
0.45%
•
Jet Airways
–
0.26%
•
SpiceJet
–
0.72%
•
Go Air - 0.04%.
The main reasons for cancellation were for; weather, technical or operational
related issues.
Air passenger rights
framework
Passenger rights in India are governed by Civil Aviation Rules (CAR), Section
3-Series M Part IV. These regulations were issued in 2010. The DGCA released
a revised version of these rules in early 2019.
This regulation applies to both domestic and foreign airlines, and to both
scheduled and non-scheduled operators. In the case of foreign airlines, the
amount of compensation to be paid to passengers shall be decided by
whichever is higher, either the regulation of the origin country or in the CAR.
Right to mobility
Rights to mobility are stated in CAR, Section 3
–
Series M Part I. These rights
are applicable to all Indian airlines, and all foreign airlines operating services
to and from Indian territory.
Passengers are required to give at least 48 hours of notice before the
scheduled time of departure of any special assistance requirements.
January 2020 | 421
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0448.png
Study on the current level of protection of air passenger rights in the EU | Final Report
All airlines are required to have a detailed procedure on the carriage of
passengers with reduced mobility published on their website. Airlines shall
make arrangements for quick clearance and baggage delivery for passengers
with reduced mobility. Checked-in
baggage should be given ‘Assistance
Device’ Tags to ensure easy identification.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
During the booking process, the airline/agent is required to provide neutral
information on the different options available for a journey. Additionally, in
the form of a computer print-out they must provide; the identity of the
airline which will provide the service, changes to the aircraft during the
journey, any stops en-route during the journey and any transfers between
airports.
Airlines are required to inform the passenger of any cancellation at least two
weeks before the scheduled time of departure.
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
In the case of denied boarding due to overbooking, and the passenger
chooses not to take the alternate flight, the passenger is entitled to the full
value of the ticket and compensation equal to 400% of the original fare, up to
a maximum of INR 20,000 (255 EUR).
In the case of denied boarding due to overbooking, airlines are required to
ask for volunteers to give up their seats, at their own discretion airlines may
wish to offer the passenger with benefits/facilities. If airlines provide an
alternate flight within one hour of the original departure time, they are not
required to compensate. If they do not offer this, or the passenger is denied
boarding involuntarily, airlines are required to provide compensation.
In the case of flight cancellation, passengers informed 2 weeks prior to the
scheduled departure time will be entitled to an alternate flight or a full
refund. Passengers informed less than 2 weeks and up to 24 hours prior to
the scheduled departure time will be given the option to either an alternate
flight or a full refund (the requirement is the same as for informing
passengers at least 2 weeks in advance). Passengers not informed in the time
requirements stated above will be entitled to either an alternate flight as
acceptable to the passenger or a full refund in addition to compensation.
When a domestic flight is expected to be delayed for more than 6 hours after
the original departure time, airlines are required to offer either an alternate
flight within a period of 6 hours or a full refund of the ticket to the passenger.
Due to the refund of tickets by airlines becoming a major issue for
passengers, the DGCA has issued requirements of how refunds shall be
made, these are stated in CAR Section 3-Series M Part II.
Right to get assistance
in case of long delays
at departure or
connecting points
For the event of a cancelled flight, and the passenger has already reported
for their original flight. Passengers are entitled to meals and refreshments in
relation to waiting time, whilst they are waiting for the alternate flight.
Similarly, for delayed flights, passengers are entitled to meals and
refreshments once the revised departure time is:
•
2 hours or more, in cases of flights having a block time of up to 2.5
hours;
•
3 hours or more, in cases of flights having a block time of more than 2.5
hours and less than 5 hours; or
•
4 hours or more in cases of flights having a block time of more than 5
hours.
January 2020 | 422
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0449.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Additionally, when the total delay of a flight is expected to exceed 24 hours
or more than 6 hours for flights scheduled to depart between 20:00 and
03:00 hours, passengers will be offered hotel accommodation when
necessary, including any transfers.
Airlines are not required to provide assistance in cases where the
cancellations and delays have been caused by extraordinary circumstances
and any other causes that are beyond the control of the airline.
Right to compensation
under certain
circumstances
For cases when a flight has been cancelled, passengers who were not notified
within the specified time requirements, will be entitled to the following
compensation as well as the refunded fare. For flights with a block time of
less than 1 hour, the passenger is entitled to INR 5,000 (65 EUR) or the
original fare, whichever is less. Similarly, for flights with a block time between
1 and 2 hours, the passenger is entitled to INR 7,500 (100 EUR) and with a
block time of more than 2 hours are entitled to INR 10,000 (130 EUR). In
cases where the passenger has not provided adequate contact information,
no financial compensation shall be payable to the passenger
Airlines are not required to compensate in cases where the cancellation is
beyond the control of the airlines.
In the case of denied boarding due to overbooking, if the alternate flight is
scheduled to depart within one hour of the original departure time no
compensation shall be paid. In the case when the alternate flight is scheduled
to depart from 1 to 24 hours after the original departure time, the
compensation amount to be paid is equal to 200% of the one-way basic fair,
up to a maximum of INR 10,000 (127 EUR). For alternate flights more than 24
hours after the original departure time, the compensation amount to be paid
is equal to 400% up to a maximum of INR 20,000 (255 EUR).
Rights to carrier
liability towards
passengers and
baggage
In the event of death or any other bodily injury suffered by a passenger, the
airline’s liability will be governed by the relevant provisions of the Indian
Carriage by Air Act, 1972. The liability amount under this scenario shall not
exceed INR 2,000,000 (EUR 25,430).
Similarly, the airline’s liability toward damaged or
lost baggage is governed
by the Indian Carriage by Air Act.
Right to a quick and
accessible system of
complaint handling
Right to full application
and enforcement of
law
Passengers are able to complain to the individual airlines via an online
feedback form. In 2014, DGCA set up a complaints portal where passengers
could email in. If after 15 days no action has been taken by the relevant
authority, DGCA will take action. No updated information on this was found.
The National Enforcement Body in India is the DGCA. Its role is to promote
safe and efficient air transportation through regulation.
January 2020 | 423
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0450.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Indonesia
Indonesia
General description
According to the Indonesia Bureau of Statistics (BPS), The total number of
passengers travelling through Indonesian airports in 2017 reached 219m
passengers, up 9.6% from 199.8m passengers in 2016. This included:
•
Domestic passengers: 186.1m in 2017, up 9.1% from 170.5m in 2016;
and
•
International passengers 32.9m in 2017, up 12.5% from 29.2m in 2016.
As of 2017,
Indonesia’s largest airports were the following:
•
Jakarta
–
Soekarno Hatta Airport: 29.3m departing passengers;
•
Denpasar
–
Ngurah Rai Airport: 10.6m departing passengers;
•
Surabaya
–
Juanda Airport: 8.9m departing passengers;
•
Medan
–
Kualanamui Airport: 4.6m departing passengers; and
•
Makassar
–
Sultan Hasanuddin Airport: 4.2m departing passengers.
After several rounds of consolidation over the past decade, Indonesia’s
domestic market was dominated by three groups in 2017:
•
Lion Group: Made up of low-cost carries Lion Air, Wings Air, and Batik
Air, the Group accounted for 51% of the domestic market;
•
Garuda Group: Made up of legacy carrier Garuda Indonesia, and low-cost
carrier Citilink, the Garuda Group accounted for 33% of domestic
passengers carried;
•
Sriwijaya Group: Consisting of Sriwijaya Air, and Nam Air, the group
accounted for 13% of Indonesia domestic aviation; and
•
The remaining 4% was held by Indonesia AirAsia and other carriers
Note that in 2018, Garuda Group took over Sriwijaya Group airlines, further
consolidating market shares around 2 dominant players.
Air passenger rights
data
According to OAG, over the 12 months up to May 2018, on-time
performance in Indonesia was poor:
•
Garuda Indonesia: From June 2017 to May 2018, 29.6% of the airlines’
flights were delayed; and
•
Jakarta
–
Soekarno Hatta Airport: Over the same period, 41.5% of all
flights were delated.
Air passenger rights in Indonesia are specified by the Minister of
Transportation Regulation regarding Delay Management on Scheduled
Commercial Airline in Indonesia (Minister Regulation No. 89 Year 2015, SG
No. 716 Year 2015) and the Ministerial Decree No. 77 of 2012 on Air Carrier
Liability.
The rules stipulated in the regulation only apply to domestic flights.
Right to mobility
Indonesia’s Law No.8 of 1999 on Consumer Protection is applicable to all
sectors in general, including the air transport sector.
Pursuant this Law, consumers have the right to receive proper, honest, and
non-discriminatory treatment or services.
Lion Air and Garuda Indonesia lay out their rules with respect to
transportation of a passengers with a disability in their respective conditions
of carriage:
Air passenger rights
framework
January 2020 | 424
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0451.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Indonesia
•
Both carriers require the passengers to inform them about the special
needs at the time of booking. After acceptance by the carriers, the
passenger shall not subsequently be refused carriage based on its
disability of special needs alone;
Garuda will only carry unaccompanied children or disabled people to the
extent that they don’t make up more than 10% of aircraft capacity, while
Lion air will refuse transport to passengers who they deem unfit to care
for themselves, and travel without their assistant.
•
Note that in 2011, a Central Jakarta Court ruled against low cost airline Lion
Air for discriminating against a disabled passenger, forcing him into signing a
release before being allowed to fly, absolving the airline of any responsibility
in connection with his flight and rendering the passenger liable to other
passengers should his condition pose a threat to other passengers.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
As per Law No.8 of 1999 on Consumer Protection, passengers have right to
obtain correct, clear, and honest information regarding the condition and
warranty of the goods or services.
Additionally, the law prohibits airlines from offering, promoting, advertising
or providing incorrect or misleading statements regarding the price,
conditions, rights, warranty, and compensation of certain goods or services.
The Ministerial Decree No.77 of 2012 on Air Carrier Liability dictates certain
rules with regards to information during disruption, that will determine the
extent to which the airline must assist the passenger in such cases.
Right to renounce
travelling when trip
not carried out as
planned
Under Regulation No. 89, passengers may renounce their trip if not carried as
planned, under specific circumstances:
•
Cancellation: The passenger will be given the option to be reimbursed
(and renounce the trip) or re-routed should the airline fail to inform
about the cancellation at least 7 days before departure.
•
Delay of more than 1 hour: the passenger will only be given the option
to be reimbursed (and renounce the trip) or re-routed on the next flight.
•
Denied boarding due to overbooking: equivalent to a delay, the
passenger will only be given the option to be reimbursed (and renounce
the trip) or re-routed on the next flight.
As above Under Regulation No. 89, passengers will be offered the option to
be rerouted for cancellations, delays of more than 1 hour or denied boarding.
Airlines have to refund any difference in fare in the event of a passenger
being downgraded.
Right to get assistance
in case of long delays
at departure or
connecting points
Under Regulation No. 89, flight delay is classified into six categories.
•
30 to 60 minutes: passengers will be provided with refreshments
•
61 to 120 minutes: passengers will be provided with a snack box
•
121 to 180 minutes: passengers will be provided with a meal
•
181 to 240 minutes: passengers will be provided with a snack box and a
meal
•
More than 240 minutes: passengers will be provided with
accommodation (if necessary)
Under Regulation No. 89, passengers are entitled to compensation in case of
delay within the control of airlines:
Right to fulfilment of
the transport contract
in case of disruption
Right to compensation
under certain
circumstances
January 2020 | 425
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0452.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Indonesia
•
•
For a delay of more than four hours, the airline shall pay the passenger
Rp. 300,000 (€19)
Should there be no flight to the passenger’s final destination, the airline
will pay Rp 150,000 (€9.5) in addition to offering a flight to the closest
airport
next to the passenger’s final destination.
Rights to carrier
liability towards
passengers and
baggage
The Convention for the Unification of Certain Rules for International Carriage
by Air, Montreal 1999, was ratified in Indonesia by Presidential Decree No. 95
of 2016.
However, if international carriage is performed by a domestic carrier, the law
that applies is the Indonesian Aviation Law, which is further regulated under
the Ministry of Transportation No.77 of 2011 (MoTR No.77/2011) on the
Liability of Air Carried, and states that an air carrier will be liable for damages
for, among other things, death, permanent disabilities or injuries.
The amounts to be paid under MoTR No.77/2011 are the following:
•
Passengers:
-
Death of passenger on air transportation: Rp 1.25 billion (€ 78,000)
per passenger;
-
Death of passenger boarding or disembarking an aircraft at an
airport: Rp 500 million (€32,000) per passenger;
-
Permanent injury: Rp 1.25 billion (€ 78,000) per passenger;
-
Injuries and hospitalisation: Rp 200 million (€ 12,500) per passenger
•
Cargo:
-
Missing, destroyed or damage luggage: From Rp 200,000 (€ 12.5)
per kilogram per passenger, up to Rp 4 million (€ 250)
-
Missing or destroyed cargo: Rp 100,000 (€ 6.25) per kilogram
-
Partly destroyed cargo or cargo contents: Rp 50,000 (€ 3.125) per
kilogram
Right to a quick and
accessible system of
complaint handling
The national consumer protection agency in Indonesia, established in
accordance with Law No.8 of 1999 on Consumer Protection, is the
Directorate of Consumer Empowerment under the Directorate General of
Consumer Protection & Trade Compliance at the Ministry of Trade of
Indonesia.
The Directorate is responsible for receiving consumer complaints.
Right to full application
and enforcement of
law
As stated above, the national consumer protection agency in Indonesia,
established in accordance with Law No.8 of 1999 on Consumer Protection, is
the Directorate of Consumer Empowerment under the Directorate General
of Consumer Protection & Trade Compliance at the Ministry of Trade of
Indonesia.
In addition to being responsible for receiving and processing consumer
complaints, the Directorate is also responsible for the enforcement of Law
No.8.
January 2020 | 426
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0453.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Israel
Israel
General description
According to the Central Bureau of Statistics (CBS), international air
transportation traffic in Israel reached 20.6m passengers in 2017, up 17.2%
from 17.4m in 2018.
In 2018, Israel Airports Authority (IIA) reported that 22.4m international
passengers and 0.6 million domestic passengers travelled through Tel Aviv
Ben Gurion Airport, the country’s main airport.
El Al Israel Airlines, is the country’s largest and main airline, and handled
25% of traffic at Ben Gurion Airport in 2018.
Air passenger rights
data
According to FlightStats, which tracked 66% of flights at Ben Gurion Airport
in the 12 months up to May 2019, only 0.44% of flights were cancelled over
that period, which equates to 303 flights. However, 29.5% of flights were
delayed, which equates to 20,087 flights, while averaging 44.47 minutes of
delay.
The Consumer Protection and Fair Trade Authority, which handles
consumer complaints related to a wide variety of industries, recorded 255
tourism-related complaints in 2017, of which 56 related to airlines. The
Authority recorded a further 437 transport-related complaints, but it is not
clear how many of these related to airlines.
Air passenger rights
framework
Air Passenger rights in Israel are governed by the Aviation Services Law
(Compensation and Assistance for Flight Cancellation of change conditions),
5772-2012.
The Law applies to flights taking off from Israel or flying to Israel, including
a flight with a stopover.
Right to mobility
The Third Chapter of the Equal Rights for People with Disabilities
Regulations (Access to Public Transportation Services), 5763-2003, sets
forth provisions in connection with the obligation to arrange equipment for
the handicapped in air transportation, which impose various obligations on
airport operators.
Under this law, a person who is responsible for providing public service
shall implement the accessibility accommodations for persons with
disabilities. Airport operators fall under this description.
Airlines are not mentioned specifically in the Law, and it is not clear the
extent of their obligation with regards to disabled passengers.
However, El Al Israel Airlines’ conditions of carriage state the following:
•
Carriage of unaccompanied children, incapacitated persons, persons
with limited mobility, pregnant women, persons with illness or other
people requiring special assistance is subject to prior agreement with
El Al;
•
If arrangements have not been made at least 48 hours before check-in,
El Al may decide not to carry such persons requiring special assistance;
•
Passengers with disabilities or passengers requiring special assistance
as aforesaid who have fully advised El Al or one of its authorized agents
of any special requirements they may have at the time of ticketing, and
January 2020 | 427
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0454.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Israel
been accepted by El Al, shall not subsequently be refused carriage on
the basis of such disability or special requirements.
Passengers with disabilities flying with a wheelchair, will not be
charged should the wheelchair need to be carried in the aircraft
baggage hold.
•
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
As per the Consumer Protection Law, all prices (including airfares) in Israel
should be published as the total price (including charges, taxes, and levies)
In case of flight disruption, the Aviation Services Law dictates that:
•
The flight operator or organiser will present, at the place at which it
receives the public, a notice detailing the passenger’s right in case of
disruption
–
in a visible place and in clear legible script;
•
The Flight Operator, organiser and travel agency service provider
offering flight tickets for sale will prominently publish passenger
information on their website, if any; and
•
A license holder for the operating of an airport, will place at every
airport operated by it, a sign presenting the Passenger Information in a
visible location in clear and legible script.
Furthermore, the Aviation Services Law prescribes direct interaction
between the airlines and the individual passengers, dictating that:
•
A passenger who has been issued a flight ticket for a disrupted flight, is
entitled to receive, from the flight operator or organiser, a document
detailing his rights; and
•
A flight operator or organiser who has issued a passenger with a flight
ticket, will provide the passenger with details regarding the location in
the airport of someone who has been appointed to assist passengers in
realising their rights in accordance with the provisions of the Law, and
regarding ways of contacting him.
Right to renounce
travelling when trip
not carried out as
planned
Under the Aviation Services Law, whether the passenger has the option to
be re-routed or reimbursed depends on the type of flight disruption:
•
Under both cases of cancellation within
and beyond the airline’s
control, the passenger will have the option to either be re-routed or
reimbursed.
•
In case of delay within the airline’s control, that lasts between five and
eight hours, the passenger will have the option to be reimbursed or re-
routed. That will not be the case if the delay is beyond the airline’s
control.
•
In case of denied boarding (excluding instances of denied boarding due
to breach of conditions of carriage, and other special circumstances),
the passenger will be given the option of being reimbursed or re-
routed.
As stated above, in most cases of disruption, the passenger will be given
the option to be re-routed and reach their original destination
Under the Aviation Services Law, the level of assistance to be received will
vary depending on the type of disruption, but will not change according the
option chosen by the passenger:
•
In cases of cancellation both within and beyond the control of the
airline, or denied boarding (excluding special circumstances referred
above), the passenger will be entitled to receive assistance services,
Right to fulfilment of
the transport contract
in case of disruption
Right to get assistance
in case of long delays
at departure or
connecting points
January 2020 | 428
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0455.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Israel
which shall include, food and drinks, accommodation if an overnight
stay is required, and two telephone calls and fax/e-mails;
The same suite of services will be provided to the passengers in case of
delay (both within and beyond airline’s control) after at least two
hours from the flight time stipulated by the ticket.
•
Right to compensation
under certain
circumstances
Under the Aviation Service Law, Compensation will only be provided in case
of:
•
Cancellation that is within the control of airlines, and the airline has
informed the passenger less than 2 weeks before departure date; and
•
Denied boarding due to overbooking.
The amount of compensation the passenger is entitled to will vary
according to the trip’s length as follows:
•
Up to 2,000 kms: 1,250 NIS (€310)
•
Between 2,001 and
4,500 kms: 2,000 NIS (€500)
•
Above 4,500 kms: 3,000 NIS (€ 750)
In the case of a compensation-eligible cancellation (or denied boarding due
to overbooking), and if the passenger has accepted to be re-routed, the
compensation may be reduced by half, when the delay in the landing time
at the final destination of the passenger, compared with the original
landing time at that destination, is as detailed below:
•
Up to two (four for denied boarding) hours
–
if the flight is at a
distance which is no longer than 2,000 kms;
•
Up to three (five for denied boarding) hours
–
if the flight is at a
distance which is longer than 2,000 km but no longer than 4,500 kms;
•
Up to four (six for denied boarding) hours
–
if the flight is at a distance
which is longer than 4,500 kms;
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
The Air Transport Law, 1980, adopts the Montreal Convention into Israeli
Law.
As stated above, the Aviation Services Law states the rules and remedies
for consumer complains regarding delay, flight cancellations and denied
boarding. The punitive damages for non-compliance with the law are
however, regulated by the Consumer Protection Law.
Should an airline fail to comply with the Aviation Services Law, consumers
may complain to the Consumer Protection and Fair Trade Authority.
Right to full application
and enforcement of
law
Following an amendment of the Consumer Protection Law in effect since
January 2015, the Consumer Protection and Fair Trade Authority has seen
its enforcement powers expanded:
•
The Authority can now enforce the law by invoking administrative
procedures that enable straightforward and easily provable
enforcement, while reducing the time that elapses between the
violation and penalty;
•
The Authority can now enforce violations that were previously
considered outside of its jurisdiction, in addition to those violations
that were previously under its authority. These namely, include:
-
Transaction cancellations and refunds;
-
Requiring businesses to display prices per unit on various
products;
-
Merchandise return policies;
January 2020 | 429
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0456.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Israel
Notifying customers at the end of limited transaction periods; and
Waiting time limitations when requesting customer service from a
representative.
Some of which are very relevant to the air transportation sector.
In addition, the authority has also been extended the right the impose
direct monetary sanctions for every violation of the law within its
jurisdiction.
-
-
•
January 2020 | 430
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0457.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Japan
Japan
General description
Air passenger traffic in Japan reached over 123 million passengers carried in
2017.
The busiest Japanese airports and their annual passenger traffic in 2017 were:
•
Haneda Airport, 85.3 million
•
Narita International Airport, 38.6 million
•
Kansai International Airport, 27.9 million
•
Fukoka Airport 23.8 million
•
New Chitose Airport, 22.7 million
The market is dominated by All Nippon Airways (ANA) and Japan Airlines (JAL),
in 2016 they had a 48% and 30% market share respectively. There has been a
notable decrease in market share of both these airlines driven by the
emergence of low-cost carriers
–
in 2006, ANA and JAL had a combined market
share of 94%.
Air passenger rights
data
Long delays and cancellations have each remained below 1% in 2018 according
to stakeholder responses.
The Civil Aviation Bureau of Japan has reported it receives approximately 600
complaints a year in relation to air passenger rights.
Air passenger rights
framework
Japan has ratified the Montreal Convention. There is no specific legislation in
Japan governing air passenger rights. Article 106 of the Civil Aeronautics Act
(Act No. 231 of 1952) states that any domestic airline shall establish conditions
of carriage and obtain approval of these from the Minister of Land,
Infrastructure, Transport and Tourism. The conditions of carriage must have no
possibility of adversely affecting the legitimate public interest and shall at least
define the carrier’s liability relating to fare and charge collection as well as
transportation.
In 2006 Japan passed the Barrier-Free Act (Act No. 91 of 2006), a law
promoting easier movement for the elderly and disabled. The act standardized
measures for developing barrier-free environments at public transportation
hubs including train stations, airports, and passenger ship terminals, shopping
centres, public buildings, and public spaces including roads, parks, and outdoor
parking facilities. In addition to the development of physical infrastructure, the
bill also promotes greater awareness and understanding of the needs of
elderly and disabled people and encourages broader interaction and support
from others in society.
No specific mention identified from review of airlines’ conditions of carriage.
Right to mobility
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
No specific mention identified from review of airlines’ conditions of carriage.
JAL and ANA’s Conditions of Carriage state that:
If a passenger is prevented from travelling on the flight they have booked
because of a cancelled flight, failure to operate according to schedule, denied
boarding, a missed connection due to the fault of the airline or being
January 2020 | 431
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0458.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Japan
substituted for a lower class of service than booked, the passenger may choose
to either receive a refund equivalent to the unused portion of the ticket (or the
difference in fare between travel classes) or the airline will:
•
Provide the passenger with a seat on the next available service on its own
services; or
•
Endorse to any other carrier the unused portion of the ticket and request
that such carrier transport the passenger; or
•
Reroute the passenger on its own or another carrier’s services.
Right to get assistance
in case of long delays
at departure or
connecting points
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
No specific mention identified from review of airlines’ conditions of carriage.
No specific mention identified from review of airlines’ conditions of carriage.
Carriage performed by JAL and ANA shall be subject to the rules and limitations
relating to liability established by the Montreal Convention (including for
domestic services)
Air passengers are able to complain through the Civil Aviation Bureau of Japan.
There are two bodies in Japan that handle general consumer complaints.
Firstly, the Consumer Affairs Agency in Japan (CAA) is a central administrative
organization headed by Minister of State for Consumer Affairs and Food Safety
under the authority of Prime Minister. The mission of the CAA is protecting and
promoting consumer rights and interests by shaping consumer policy,
requesting other government members to take appropriate actions, and
preventing deceptive and unfair business practices through law enforcement.
Secondly, the National Consumer Affairs Center of Japan (NCAC) established as
an incorporated administrative agency, works as a core consumer advocate
organization in accordance with the Basic Consumer Act. The NCAC provides
information and conducts research and studies concerning consumer affairs
from a comprehensive perspective to create stable and improved people's
lives. NCAC also undertakes Alternative Dispute Resolution (ADR) procedures
for important consumer conflict cases. NCAC handles consumer issues in
collaboration with the government and local consumer centres located
throughout Japan.
The Japan Civil Aviation Bureau (JCAB) is the civil aviation authority of Japan
and a division of the Ministry of Land, Infrastructure, Transport and Tourism.
The Civil Aviation Bureau of Japan is responsible for each individual air carrier’s
conditions of carriage.
Right to full application
and enforcement of
law
January 2020 | 432
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0459.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Malaysia
Malaysia
General description
Malaysia’s total air passenger traffic reached 102.4 million
in 2018.
Malaysia’s continual economic growth has led to the establishment of
several large international airports in the country. The busiest airport in
Malaysia is Kuala Lumpur International Airport (KLIA). KLIA Airport had 59.9
million passengers pass through in 2018. The two other large airports in
Malaysia are Kota Kinabalu International Airport and Penang International
Airport, with 8.6 and 7.8 million passengers respectively in 2018.
The three largest air carriers are
•
Malaysia Airlines
•
AirAsia
•
Malindo Air
Air passenger rights
data
There appears to be a good awareness of air passenger rights. According to
an air passenger rights survey conducted by the Malaysian Aviation
Commission (MAVCOM), 55% of passengers are aware of their travel rights,
with an increase to 66% in 2018. MAVCOM states that there has been a
continual effort to increase awareness of air passenger rights. Since 2016,
MAVCOM has received 4,506 complaints, of which 1,547 (34%) have been
legitimate or justified complaints.
Statistics (March 2016 to 2018)
Complaints related to:
Delayed flights - 576
Cancelled flights - 385
Passengers denied boarding - 54
Passengers offloaded - 241
Lost, damaged, delayed baggage
–
821
MAVCOM has penalised two airlines for not complying with full disclosure of
air fares, each airline being fined 160,000 MYR (34,610 EUR).
Air passenger rights
framework
All carriers operating in Malaysia are required by law to comply with the
Malaysian Aviation Consumer Protection Code (MACPC) 2016. The code
applies to domestic and foreign airlines operating in and out of Malaysia,
including connecting flights. The code includes minimum service levels and
standards for meeting consumer requirements, handling complaints and
providing compensation. Under the act, it is mandatory for disputing parties
to resolve the dispute through mediation within a period of 3 months, failing
which MAVCOM shall commence its involvement in the dispute.
MAVCOM will impose penalties to airlines and airports if they do not comply
with the Malaysian Aviation Commission Act 2015 and MACPC 2016. These
penalties can be challenged in the High Courts of Malaysia by airlines or
airports within 3 months of the decision.
Right to mobility
Under the code, airlines must provide assistance for passengers with
disability from arrival at the airport until departure. Airports, on their part,
must include accessible signage and points where any person with disability
can request assistance. Passengers are expected to give at least 48 hours
notice to the operating airline. Airlines are not allowed to deny boarding
January 2020 | 433
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0460.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Malaysia
based on PRM issues, unless they do not meet the safety requirements
established by the Malaysian Director General of the Department of Civil
Aviation. Airlines may request the passenger is accompanied in order to meet
the applicable safety requirements.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Under the code, passengers must be notified at the point of purchasing a
ticket where the flight will be under a code-sharing agreement.
The final air fare shown must include taxes and fees imposed by the
government, fees and charges imposed by the Commission, passenger
service charge, security charges, baggage fees, and fuel charges. In the case
of additional services, the airlines must clearly state what these add-ons are
and how much they cost at the start of the booking process. Airlines cannot
increase the price of a ticket after passengers have paid for it, the only
exception is when there has been an increase in Government imposed taxes,
or fees imposed by the Commission.
When there is a change in flight status, airlines must give information to
passengers about the change as soon as practicable after the airline became
aware of it.
Right to renounce
travelling when trip
not carried out as
planned
Under the code, if passengers are denied boarding or their flight is cancelled,
they are entitled to full reimbursement for the part or parts of the journey
not completed, and the parts already made if the flight no longer serves any
purpose
in relation to the passenger’s original travel plan.
To confirm with MAVCOM whether passengers are entitled to a return flight
to their point of departure if they choose to renounce their travel.
The airline can only deny boarding if either a passenger volunteers (as
defined in MACPC 2016) to give up their ticket or if there are not enough
volunteers to meet the airline’s circumstances.
In line with the code, regardless of voluntary or involuntary denied boarding,
the passenger shall be offered:
•
Free of charge meals;
•
Limited telephone calls and internet access;
•
Hotel accommodation where a stay of one or more nights becomes
necessary;
•
Transport between the airport and place of accommodation (hotel or
other); and
•
The choice between full reimbursement within thirty days, of the full
cost of the ticket or re-routing, under comparable transport conditions,
to their final destination at the earliest opportunity or at a later date at
the passenger's convenience, subject to availability of seats, at no extra
charge.
For flight cancellations, passengers shall be offered the choice between full
reimbursement within thirty days or re-routing, under comparable transport
conditions, to their final destination at the earliest opportunity or at a later
date at the passenger's convenience, subject to availability of seats, at no
extra charge.
Right to get assistance
in case of long delays
at departure or
connecting points
For flights delayed two hours or more, passengers shall be offered:
•
Free of charge meals;
•
Refreshments;
•
Limited telephone calls; and
Right to fulfilment of
the transport contract
in case of disruption
January 2020 | 434
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0461.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Malaysia
•
Internet access.
For flights delayed five hours or more, passengers in addition of the above
requirements shall be offered free of charge hotel accommodation in cases
where a stay of one or more nights becomes necessary or where the stay of
additional to that intended by the passenger becomes necessary and
transport between airport and place of accommodation.
Right to compensation
under certain
circumstances
The MACPC defines a right to reimbursement, but there is no right to
standard (punitive) compensation in relation to flight disruptions.
Airlines may not provide reimbursement to passengers when airlines can
prove that that the delay or cancellation has been caused by extraordinary
circumstances which could not have been avoided even if all reasonable
measures had been taken.
Airlines may not provide assistance or reimbursement to passengers when
the passengers are in clear breach of the terms and conditions of the airlines
such as lack of travel documents, carrying valuables that are restricted etc.
Rights to carrier
liability towards
passengers and
baggage
The MACPC states that if a passenger’s baggage does not arrive on the same
flight as the passenger, they are entitled to compensation for any losses
caused by the delay. Similarly, if the passenger’s baggage is lost whilst in
custody of the operating airline, the passenger will be entitled to
compensation. The maximum liability for baggage damaged, lost or delayed
on a flight is limited to 1,131 Special Drawing Rights (SDR) (1,404 EUR) for
each passenger. A passenger may benefit from a higher liability limit by
making a special declaration at the latest at check-in and by paying a
supplementary fee. Airlines are not liable to compensate for general wear
and tear of the baggage, such as minor cuts and scratches.
To claim compensation, the passenger must file a written complaint with the
airline:
•
on arrival or within 7 days of arrival if the baggage is damaged; or
•
on arrival or within 21 days of arrival if the baggage is delayed.
MACPC states that in cases of damaged mobility equipment, the passenger
shall be compensated based on the prevailing market price.
Right to a quick and
accessible system of
complaint handling
The Malaysian Aviation Commission Act makes it mandatory for disputing
parties to resolve the dispute through mediation within a period of 3 months,
failing which the Commission shall commence to examine and rule on the
dispute. The Commission plays a quasi-judiciary role in resolving disputes
between the aviation industry players including airport operators.
Currently, MAVCOM is in charge of handling the complaints. Passengers that
are not satisfied with airlines’ responses
are able to register their complaints
via a website, telephone call, walk-in to MAVCOM office and via the
MAVCOM FlySmart mobile application. FlySmart is a consumer awareness
platform, set up to educate people on their rights as air passengers.
Right to full application
and enforcement of
law
MAVCOM was formally established on 1 March 2016 under the Malaysian
Aviation Commission Act 2015 as an independent entity to regulate
economic and commercial matters related to civil aviation in Malaysia.
MAVCOM is responsible for the enforcement and implementation of air
passenger protection. The functions of MAVCOM are to:
January 2020 | 435
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0462.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Malaysia
•
•
•
•
•
regulate economic matters relating to the civil aviation industry,
provide a mechanism for protection of consumers,
provide a mechanism for dispute resolution between aviation industry
players,
administer and manage air traffic rights and advise the Government,
and to
administer and manage routes under public service obligations.
While the Commission is entrusted with the duties to oversee the economic
and commercial aspects of the aviation industry, the technical, safety and
security aspects of the industry remain under the scope of the Department of
Civil Aviation ("DCA"). In this regard, the Act provides that the Commission
shall consult the Director General of DCA on any technical, safety and
security issue in the performance of its functions.
The Act does not provide the avenue for appeal by any relevant body
aggrieved by the Commission's decision in relation to the dispute resolution.
Thus, the usual judicial review process should be applicable. There have been
cases where a passenger is not satisfied with the intervention by MAVCOM
and have contacted ADRs. In Malaysia, there is a small claims court for cases
not exceeding 5,000 MYR (1,082 EUR).
The Commission also has powers to inspect and investigate matters within its
jurisdiction besides carrying out audits on any aspect of the aviation industry.
January 2020 | 436
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0463.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Mexico
Mexico
General description
In 2017, the total number of air passenger in Mexico was 58.5 million, a 9.7%
increase from the previous year.
The largest airport in Mexico is Mexico City International Airport, which served
41.7 million passengers in 2016. Other major airports in Mexico and their
annual passengers in 2016 were:
•
Cancun International Airport - 21.4 million passengers
•
Guadalajara International Airport - 11.4 million passengers
•
Monterrey International Airport - 9.2 million passengers
Aeroméxico is Mexico’s national airline,
which transported 21.9 million
passengers in 2018. Other major airlines are Volaris, Interjet and VivaAerobús.
In 2018, airlines’ market share of domestic air traffic in Mexico was:
•
Aeroméxico - 27.8%
•
Volaris - 28.4%
•
Interjet - 20.5%
•
VivaAerobús - 18.4%
Air passenger rights
data
Air passenger rights
framework
No data found on air passenger rights in Mexico.
Passenger rights in Mexico are governed by certain provisions of the Civil
Aviation Law, the Regulations of the Civil Aviation Law and the Consumer
Protection Law. Many of the rights are stated in the Civil Aviation Law, which
was first published in 1995. The latest amendment was in April 2017.
Article 3 of the Civil Aviation Law states that the events and acts carried out on
board an aircraft with Mexican registration are subject to Mexican laws and
authorities. Any events occurring on board a foreign airline are governed by
the laws and authorities of the state where the aircraft is registered. This
article does not specifically state the scope with regards to air passenger rights,
therefore this article is not definite.
Article 15 of the Civil Aviation Law states that airlines may have their permits
revoked if they fail to comply with the payment of obligations of compensation
for damages in the delivery of services.
Right to mobility
Article 42 of the Regulations of the Civil Aviation Law states that every airline
must provide disabled passengers with facilities for mobilization and take the
necessary steps for the care of pregnant passengers, as well as elderly
passengers.
The Civil Aviation Law states that all airlines are required to inform passengers
of changes to a scheduled flight time at least 24 hours before the scheduled
departure time.
The Consumer Protection Law states that all airlines shall inform passengers of
the causes or reasons for flight delays by electronic or physical means, at
boarding areas or any information screen.
Article 52 of the Civil Aviation Law states that in cases of denied boarding due
to overbooking or cancellation, the passenger has the option to a full refund
and compensation.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Right to renounce
travelling when trip
January 2020 | 437
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0464.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Mexico
not carried out as
planned
In the case of a delay more than four hours, the airline has the same
obligations that it has in the case of cancellation. There is no provision for
rights to renounce travelling in case of delayed flights less than four hours.
Article 38 of the Regulations of Civil Aviation Law state that for the case when
the aircraft is forced to land in a place not on the itinerary. All airlines have the
obligation to re-route a passenger in the fastest way possible to their final
destination, regardless of whether this has occurred by accident or force
majeure.
Article 52 of the Civil Aviation Law states that for cases of denied boarding due
to overbooking or cancellation; the airline must either refund the passenger
the price of the ticket, offer the service on a later date suitable to the
passenger, or offer the passenger the first available flight with the assistance
requirements stated below. In the case of a delay more than four hours, the
airline has the same obligations that it has in the case of cancellation.
Right to get assistance
in case of long delays
at departure or
connecting points
Article 52 of the Civil Aviation Law states assistance must be provided in cases
of denied boarding due to overbooking and cancellation. Communication
services (access to telephone calls and emails) and food will be provided in
relation to length of delay. When the passenger is required to wait overnight,
accommodation and any necessary transfers will also be provided.
For flights delayed within the control of the airline, the passenger will be
provided with access to communication services as above. In addition, for
delay between one and four hours, the passenger will be entitled to discounts
for subsequent flights to the contracted destination and foods/beverages as a
minimum requirement. For delays over 4 hours, the assistance provided will be
equal to the cancellation entitlements stated above.
Right to compensation
under certain
circumstances
Article 52 of the Civil Aviation Law states that in cases of denied boarding due
to overbooking or cancellation and the passenger chooses either the refund or
to fly on a later date option, they will be entitled to compensation in addition.
The amount of compensation will be at least 20% of the original ticket price.
For flights delayed within the control of the airline for more than two hours
and less than four hours, passengers are entitled to a compensation amount of
at least 7.5% of the ticket value. For flights delayed over 4 hours, the
compensation provided will be equal to the cancellation entitlements stated
above.
Rights to carrier
liability towards
passengers and
baggage
Carrier liability towards baggage is stated in Article 62 of the Civil Aviation Law.
If baggage is lost, damaged or destroyed the carrier must provide
compensation of up to 40 ‘minimum wages’ for hand baggage and up to 75 for
checked in baggage. ‘Minimum wage’ is a unit of account by the Mexican
government, based on the minimum daily wage on the date when the damage
occurs.
Mexico is a signatory to the Montreal and Warsaw Conventions.
Right to a quick and
accessible system of
complaint handling
Right to full application
and enforcement of
law
Airlines offer customer service contact details for passengers to submit
complaints or compensation requests. No information found on complaint
handling via the National Enforcement Body.
The National Enforcement Body in Mexico is Procuraduría Federal del
Consumidor (PROFECO). PROFECO is an of organisation of the Mexican
Right to fulfilment of
the transport contract
in case of disruption
January 2020 | 438
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0465.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Mexico
government. It is a consumer protection agency set up to defend consumer
rights.
January 2020 | 439
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0466.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Morocco
Morocco
General description
Morocco’s airports served 22.53 million passengers
in 2018, a 10.4% increase
from the previous year.
The majority of this traffic (66.6%) comes from Casablanca Airport and
Marrakesh Airport. This is followed by Agadir, Fes
–
Sais and Tangier lbn
Battouta Airports. In 2018, the total passengers passing through were:
•
Casablanca Airport
–
9.7 million
•
Marrakesh Airport
–
5.3 million
•
Agadir Airport
–
1.9 million
•
Fes-Sais Airport
–
1.3 million
•
Tangier lbn Battouta Airport
–
1.1 million
Royal Air Maroc is Morocco’s national airline and carried 6.7 million
passengers
in 2016. Air Arabia Maroc is a Moroccan low-cost carrier, which as a group
carried 11 million passengers in 2018. In 2008, low-cost carriers had a 20%
market share of all seat-capacity in the Moroccan market, this has increased to
38% as of 2018.
Since the Euro-Mediterranean Air Services Agreement in 2006, air traffic
between Morocco and the EU has grown by 80%.
Air passenger rights
data
Air passenger rights
framework
No data found on air passenger rights in Morocco.
Morocco was the first non-European country to sign the Euro-Mediterranean
Air Services Agreement, this has been effective from 12 December 2006. The
Agreement stipulates that in Article 18 Morocco shall act in accordance with
EU Regulation 261/2004.
Right to mobility
There is no specific legislation for passengers with reduced mobility in
Morocco. Passengers rights will be governed by the individual airline’s
Conditions of Carriage.
Royal Air Maroc requires passengers to inform them of any special assistance
needs 48 hours prior to departure. They are able to provide wheelchairs, seats
with removable armrests and priority check in for passengers with special
assistance needs.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
As per EU Regulation 261/2004.
As per EU Regulation 261/2004.
As per EU Regulation 261/2004.
January 2020 | 440
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0467.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Morocco
Right to get assistance
in case of long delays
at departure or
connecting points
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
Right to full application
and enforcement of
law
As per EU Regulation 261/2004.
As per EU Regulation 261/2004.
As per EU Regulation 261/2004.
Passengers are able to complain directly to the airline or through the Ministry’s
Consumer Protection Body.
There is no body responsible for air passenger rights in Morocco.
The Ministry of Industry, Trade and Investment and the Digital Economy in
Morocco has a Consumer Protection Body, which offers consumer protection
under Law No. 31-08. Law No. 31-08 completes the existing legal framework of
consumer protection and sets up an enabling framework for the promotion of
the role of consumer protection associations. Air passengers will have general
consumer rights under this Law and are able to file any complaints via the
Consumer Protection Body.
January 2020 | 441
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0468.png
Study on the current level of protection of air passenger rights in the EU | Final Report
New Zealand
New Zealand
General description
The main airports in New Zealand are and their total passenger movements in
2018 were:
•
Auckland Airport, 20.5 million
•
Christchurch Airport, 6.8 million
•
Wellington Airport, 6.1 million
•
Queenstown Airport, 22 million
•
Nelson Airport, 1.1 million
•
Dunedin Airport, 1.0 million
Air New Zealand is the largest airline in New Zealand and carried 17 million
passengers in 2018. Domestically, Air New Zealand have the majority market
share at 82%. The remaining market share is mainly taken by Jetstar Airways,
with 17% market share as of 2018.
Internationally, other than Air New Zealand, the major airlines operating and
their market share in 2018 are
•
Qantas Airways - 14%
•
Virgin Australia - 9%
•
Jetstar Airways - 6%
•
Emirates - 6%
No information found on air passenger rights data.
Air Passenger Rights in New Zealand are governed by the New Zealand Civil
Aviation Act 1990 and the Consumer Guarantees Act (CGA). The Civil Aviation
Act is only applicable to domestic flights.
Passenger rights to mobility are not stated in the Civil Aviation Act or the CGA.
Air New Zealand’s Conditions of Carriage
state that:
Passengers with special assistance needs are required to inform Air New
Zealand in advance of any special requirements. In addition to the allocated
baggage allowance, Air New Zealand will carry at no additional cost a fully
collapsible wheelchair and a mobility aid if required. Passengers requiring
special assistance such as supply of equipment or facilities (such as oxygen),
may be charged for the provision of these services.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Passenger rights to information during the stages of air travel are not stated in
the Civil Aviation Act or the CGA.
Air New Zealand’s Conditions of Carriage
state that:
Customers who have provided contact information, will be notified of any
change to the flight schedule of greater than 30 minutes at least 14 days in
advance. Customers will then be able to make any necessary updates to their
booking. Additionally, within 30 minutes of becoming aware of any flight delay,
cancellation or diversion that exceeds a delay of 30 minutes, information will
be provided on the website and at the boarding gate.
Passenger rights to renounce travelling after flight disruption are not stated in
the Civil Aviation Act or the GCA.
Air New Zealand’s Conditions of Carriage
state that:
(4)
(5)
Air passenger rights
data
Air passenger rights
framework
Right to mobility
Right to renounce
travelling when trip
not carried out as
planned
January 2020 | 442
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0469.png
Study on the current level of protection of air passenger rights in the EU | Final Report
New Zealand
In the event of a cancelled flight, if the passenger is not satisfied with the
alternative flights offered, they are entitled to a full refund or credit.
Right to fulfilment of
the transport contract
in case of disruption
Airlines and ticket agents must comply with the service guarantees in the
Consumer Guarantees Act. This means that they must use the reasonable skill
and care of a competent and professional airline or ticket agent and that their
services must be fit for the specified purpose. If these requirements are not
met, the passenger may be entitled to a remedy under the CGA.
Passenger rights to fulfilment of the transport contract in case of disruption
(flight delay, cancellation and denied boarding) are not mentioned in the Civil
Aviation Act.
Air New Zealand’s Conditions of Carriage
state that:
In the event of a cancelled flight, the passenger will have the option to be
carried on the next available flight, either on Air New Zealand services or an
alternate airline. In the case of re-routing and the fare and charges for the
revised routing are lower than what the passenger has paid, the passenger will
be refunded the difference. If the alternatives provided are not suitable to the
passenger, they will be entitled to a full refund or credit.
In the event of overbooked flights, Air New Zealand will first ask for volunteers
before denying boarding involuntarily. Compensation will be provided as
required by any applicable law or by its denied boarding compensation policy.
Right to get assistance
in case of long delays
at departure or
connecting points
Passenger rights to get assistance in the case of flight disruption (flight delay,
cancellation and denied boarding) are not mentioned in the Civil Aviation Act
or the GCA.
Air New Zealand’s Conditions of Carriage
state that:
In cases when there has been a disruption to the flight within Air New
Zealand’s control resulting in an overnight delay, passengers will be provided
with overnight accommodation, any necessary transfers, meals and a phone
call.
Right to compensation
under certain
circumstances
Under the Civil Aviation Act, for domestic flights airlines are liable for damage
caused by delay in the carriage of passengers. The amount of compensation to
be paid will either be; the amount of damage proved to have occurred as a
result of the delay or an amount representing 10 times the original ticket fair,
whichever is the lesser amount. Airlines will not be liable to pay compensation
if the delay is due to; a reason of meteorological conditions, force majeure or
following directions given by lawful authority.
Under the Civil Aviation Act airlines are liable for the damage sustained in the
event of death or injury of a passenger, if the accident which caused the
damage occurred on board the aircraft or during the operations of embarking
or disembarking. The limit of liability for each passenger is limited to 8,300 SDR
(10,237 EUR). The airline is also liable for damage sustained in the event of loss
or damage of baggage. The limit of liability for baggage is 17 SDR (21 EUR) per
kilogramme.
The Montreal Convention was added into the Civil Aviation Act as Schedule 6 in
2003.
Right to a quick and
accessible system of
complaint handling
Passengers are able to complain directly to the airline for any complaints. If the
passenger is unable to resolve the complaint via this method, they can go to
Rights to carrier
liability towards
passengers and
baggage
January 2020 | 443
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0470.png
Study on the current level of protection of air passenger rights in the EU | Final Report
New Zealand
Consumer Protection New Zealand. This may involve going to the Dispute
Tribunal or District Court.
Right to full application
and enforcement of
law
The Civil Aviation Authority of New Zealand exists to support safe and secure
flying in New Zealand. It has no regulatory involvement with consumer matters
or commercial dispute, only matters regarding safety or security of passengers.
Consumer Protection New Zealand are part of the Ministry of Business
Innovation and Employment. It is responsible for developing consumer policy,
including consumer protection and administrating a range of consumer
legislation.
January 2020 | 444
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0471.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Nigeria
Nigeria
General description
According to the Nigerian National Bureau of Statistics (NBS), The total number
of passengers travelling through Nigerian airports in 2017, was recorded to be
13.4m, down 8.03% from 14.6m in 2016. This includes:
•
Domestic passengers: 9.5m in 2017, down 8.40% from 2016
•
International passengers 3.9m in 2017, down 7.5% from 2016
As of 2017, Nigeria’s largest airports were the following:
•
Lagos
–
Murtala Muhammed Airport: 6.4m total passengers
•
Abuja
–
Nnamdi Awikiwe Airport: 3.6m total passengers
•
Port Harcourt Airport: 0.95m departing passengers
•
Owerri
–
Sam Mbakwe Airport: 0.43m departing passengers
•
Kano
–
Mallam Aminu Airport: 0.43m departing passengers
After series of bankrupt airline takeovers by the government over the past five
years, Nigeria’s
domestic market was dominated by three distinct groups in
2017:
•
Air Peace: accounted for 34% of the domestic market
•
Government seized airlines: Arik Air and AeroContractors accounted for
24% of domestic passengers carried
The international passengers’ market is highly dominated by foreign carriers.
Air passenger rights
data
In 2018, On-time performance at Nigerian airports was reported to have been
poor:
•
Domestic Flights: 61% of flights were delayed
•
International Flight: 35% of flights were delayed
•
Air Peace: Nigeria’s largest domestic airline delayed 51% of its domestic
flights
•
Arik Air: Formerly the country’s largest airline, Arik had 60% of its
domestic flights delayed
Air passenger rights in Nigeria are regulated by Part 19 of Nigeria Civil Aviation
Regulations, 2015.
The regulations apply to:
•
Passengers departing from an airport located within Nigeria to another
airport within Nigeria
•
Passengers departing from an airport located in another country to an
airport situated within Nigeria, unless they received benefits or
compensation and were given assistance in that other country, if the
operating air carrier of the flight concerned is a Nigerian carrier
•
Foreign air transportation with respect to non-stop flight segments
originating in Nigeria
Right to mobility
Sub-part 19.12 of the Nigeria Civil Aviation Regulations deals with the rights of
persons with reduced mobility and/or special needs. It established the
following rules:
•
Operating airlines shall give priority to persons with reduced mobility and
any persons accompanying them.
•
In cases of denied boarding, cancellation and delays, persons with reduced
mobility and any persons accompanying them shall have the same rights
to care (discussed below) as other passengers.
Air passenger rights
framework
January 2020 | 445
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0472.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Nigeria
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
There no law laying down rights to information before purchase specific to air
transportation. However, the Federal Competition and Consumer Protection
Act, 2018 regulates these rights across all industries in general.
Under the act, an undertaking shall not display any good or services for sale
without adequately displaying to the consumer a price for those goods or
services:
•
A price is deemed adequately displayed to a consumer if, in relation to any
particular goods or services, a written indication of the price, expressed in
the currency of the Federal Republic of Nigeria is:
-
Annexed to, written, printed, stamped; or
-
Located upon or otherwise applied to:
The goods or services; or
Any land, ticket, covering, label, package, reel, shelf; or
Other thing used in connection with:
▪
The goods or services; or
▪
On which the goods or services are mounted for
display or exposed for sale or published in relation
to the goods or services in a catalogue, brochure,
newspaper, circular or similar publication available
to the consumer, or the public generally.
An undertaking shall not require a consumer to pay a price for any goods
or services:
-
Higher than the displayed price for those goods or services; and
-
Or if more than once price is concurrently displayed, higher than the
lower of lowest of the prices so displayed.
•
Under Part 19, the airline has different disclosure obligations under a range of
scenarios:
•
Oversold flight: Under such case, the airline is required to solicit
volunteers and has the obligation to (1) advise each passenger that he or
she may be in danger of being involuntarily denied boarding and (2)
disclose all material restrictions applicable to the alternative offer before
the passenger decides whether to give its seal;
•
Delay: For domestic flights, the airline is required to provide passengers
with reasons for the delay within 30 minutes after the scheduled
departure time. There is no specific provision for international flights;
•
Cancellation:
Domestic flights: the passengers’ right to compensation may be waived if
the airline informs them of the disruption at least 24 hours before the
scheduled departure time.
International flights: the passengers’ right to compensation may be waived
if:
-
The passenger is informed at least 7 days before schedule time of
departure;
-
The passenger is informed between three and seven days before the
scheduled time of departure and offered re-routing allowing them to
depart not more than two hours before the scheduled time of
departure and to reach their final destination less than four hours
after the scheduled time of arrival;
-
The passenger is informed between less than seven days before the
scheduled time of departure and offered re-routing allowing them to
depart not more than one hour before the scheduled time of
January 2020 | 446
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0473.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Nigeria
departure and to reach their final destination less two four hours after
the scheduled time of arrival.
Right to renounce
travelling when trip
not carried out as
planned
&
Right to fulfilment of
the transport contract
in case of disruption
Right to get assistance
in case of long delays
at departure or
connecting points
Under Part 19, the airline is required to offer both reimbursement and re-
routing, as a combination, rather than as a set of option, in cases of:
•
Denied boarding due to overbooking;
•
Cancellation, for both international and domestic flights, both within and
beyond the airline’s control; and
•
Domestic flights delay after more than three hours have elapsed since
initially scheduled time of departure.
It is not clear whether the passenger is free to accept reimbursement and
renounce the trip altogether.
Under Part 19, passengers may be provided, free of charge, with:
•
Refreshments such as water, soft drinks, confectioneries and snacks;
•
A meal;
•
Hotel accommodation (in case of delay occurring at night, denied boarding
and cancellation)
•
Transport between the airport and place of accommodation
•
Two telephone calls, SMS, or emails.
Passengers will be entitled to this assistance under the following
circumstances:
•
All cases of cancellation (international, domestic, within and beyond
airline’s control)
•
Denied boarding due to overbooking;
•
Delays both within and beyond airline’s control:
-
Beyond 2 hours for refreshments, and communication services;
-
At a time beyond 10pm until 4am (domestic flights), or when
expected time of departure is at least six hours after initially
scheduled departure time (international flights) for hotel
accommodation
Right to compensation
under certain
circumstances
Under Part 19, passengers may receive the following compensation:
•
25% of the fares or passenger ticket price for domestic flights; and
•
30% of the passenger ticket price for all international flights;
However, this compensation may be reduced by 50% if passengers are offered
re-routing to their final destination on an alternative flight the arrival time of
which does not exceed the schedule arrival time of the flight originally booked
by:
•
One hour for domestic flights; and
•
Three hours for international flights.
Passengers will be entitled to the conditions above in the following
circumstances:
•
Denied boarding due to overbooking;
•
International flight delays lasting at least two hours; and
•
All cases of cancellation unless they are notified at least 7 days before
departure day (international, domestic, only within airline’s control).
Rights to carrier
liability towards
The Convention for the Unification of Certain Rules for International Carriage
by Air, Montreal 1999, was ratified by Nigeria on 28/05/199., and section 48(1)
January 2020 | 447
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0474.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Nigeria
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
of the Civil Aviation Act 2006 incorporated the Montreal Convention into
Nigerian Law. The Montreal Convention is therefore effective in Nigeria.
The Federal Competition and Consumer Protection Commission is in charge of
receiving complaints from consumers, investigating the cases, enforcing the
law, as well as imposing sanctions.
Where upon an investigation by the Commission of a complaint by a consumer,
it is proved that the consumer’s rights have been violated; the consumer is
entitled to civil action for further compensation in a court of competent
jurisdiction, in addition to the redress the Commission may impose.
Right to full application
and enforcement of
law
As stated above, the national consumer protection agency in Nigeria,
established in accordance with Federal Competition and Consumer Protection
Act, is the Federal Competition and Consumer Protection Commission.
In addition to being responsible for receiving and processing consumer
complaints, the Commission is also responsible for the enforcement of the law.
January 2020 | 448
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0475.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Qatar
Qatar
General description
Hamad International Airport (HIA) is the sole international airport in Qatar. HIA
replaced Doha International Airport in May 2014. In 2018, HIA had 34.21
million passengers pass through its airport. According to Qatar Airways, HIA is
targeted to handle up to 50 million passengers.
The sole air carrier in Qatar is Qatar Airways. Qatar Airways carried 29.16
million passengers in 2018, compared with 32.01 million passengers in 2017.
Air passenger rights
data
Air passenger rights
framework
No air passenger rights data found for Qatar.
There is no specific legislation in Qatar regarding air passenger rights.
Air passengers would be protected as part of Qatar’s national consumer
protection framework.
Right to mobility
Qatar has not established a general framework for the protection of PRM.
Qatar Airways has implemented a company policy regarding PRM.
Qatar Airways advises passengers to inform them about any special assistance
needs via a Medical Information Form (MEDIF) at least 48 hours before flight
departure. Their Conditions of Carriage state that any passenger requiring
special assistance, who has been accepted by Qatar Airways prior to the flight
will not be refused boarding.
Mobility assistance in the form of wheelchairs, seats with moveable arm rests
and accessible toilets will all be available on board the flight, as well as
wheelchairs being throughout the airport. Service dogs, emotional support or
psychiatric service dogs can travel free of charge in the cabin on Qatar Airways
flights to or from Australia, Brazil, Canada, the EU, Georgia, India, Norway,
Switzerland and the USA. On all other flights service dogs may travel free of
charge as checked baggage.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
Qatar Airways’ air policy states that:
At the time of purchasing the ticket, the passenger will be advised of taxes,
fees and charges not included in the fare. In the event of an increase in tax, fee
or charge after the ticket has been purchase, the passenger will be required to
pay the additional amount.
As detailed below, in the event a flight is cancelled or delayed, the passenger is
entitled to a full refund of the original fare price.
Qatar Airways’ air policy states that:
in the event that they cancel or delay a flight, are unable to provide a
previously confirmed space, fail to stop at a passenger stopover or cause you
to miss a connecting flight, they will either;
•
Carry the passenger on another Qatar Airways service; or
•
Re-route the passenger to the destination shown on the ticket, on either a
Qatar Airways service, another airline or via surface transportation. If the
total value of the revised routing is less than the refund value, the
passenger will be refunded the difference; or
•
Refund the passenger.
January 2020 | 449
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0476.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Qatar
If no portion of the ticket has been used, the passenger will be refunded the
full amount. If a portion of the ticket has been used, the amount to be
refunded will be the higher of:
–
The one-way fare from point of interruption to the destination or
next stopover, or
–
The difference between the fare paid and the fair for the
transportation used.
If a passenger is denied boarding despite having a valid ticket and presenting
themselves for check-in at the specified time, they will be entitled to
compensation in accordance with the applicable regulation or Qatar Airway’s
denied boarding compensation scheme. The terms of this scheme have not
been found.
Right to get assistance
in case of long delays
at departure or
connecting points
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
Right to full application
and enforcement of
law
Qatar Airways’ air policy states that:
does not mention any specific rights to assistance in the event of flight
disruption, other than passenger rights in accordance with EU Regulation
261/2004.
Qatar Airways’
air policy does not provide for any rights to compensation,
other than for flights where passenger rights are covered by EU Regulation
261/2004.
Qatar Airways’ air policy states that:
Flights under Qatar Airways are subject to the rules and limitations relating to
liability established by the applicable Warsaw Convention or the Montreal
Convention.
Passengers are able to complain through the Qatar Civil Aviation Authority,
Civil Courts or directly to Qatar Airways.
Qatar Civil Aviation Authority is the national enforcement body. They were
established in 2001 in accordance with Law No. (16) of 2001. Their vision is to
maintain a safe, effective and sustainable civil aviation system in Qatar through
maintaining, monitoring and developing aviation policy. No specific
responsibility is mentioned on their role within passenger rights.
January 2020 | 450
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0477.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Singapore
Singapore
General description
According to the Department of Statistics Singapore, air passenger departures
in Singapore reached 32.2 million in 2018, compared with 30.6 million in 2017.
The largest and main airport in Singapore is Changi Airport, reporting 65.6
million passenger movements in 2018, compared with 62.2 million passenger
movements in 2017.
The national air carrier of Singapore is Singapore Airlines. They carried 19.5
million passengers in 2017, a 2.7% increase from the previous year. The group
also owns regional airline SilkAir and low-cost airline Scoot Airlines. In 2017
SilkAir carried 4.7 million passengers, a 14.2% increase from the previous year
and Scoot Airlines carried 9.5 million passengers in 2017, a 11.3% increase
from the previous year.
The other local low-cost carrier (LCC) of Singapore is Jetstar Asia, a subsidiary
airline of Jetstar Airways. As of 2018, Jetstar Asia had a market share of 19.2%
of the LCC market, whilst Scoot Airlines had a market share of 43.3%.
Air passenger rights
data
Changi Airport and Singapore Airlines experienced more flight delays this year
than last year. According to a study by OAG, 81.3% of flights at Changi Airport
were on-time in 2017, compared with 83.5% the previous year. OAG defines an
on-time flight for an airline as one that arrives within 15 minutes of the
scheduled time. Jetstar Asia reported 86.4% on-time flights, whilst Singapore
Airline was slightly less at 84.5%.
Singapore does not have an air passenger rights framework.
Passenger rights are governed by the individual airline’s conditions of carriage.
Singapore Airlines states their policies in their conditions of carriage.
Alongside this, they have developed a Customer Service plan, pursuant to the
United States Department of Transportation Final Rule on Enhancing Airline
Passenger Protections. This plan is only applicable to flights to and from the
USA.
Right to mobility
For the care of passengers requiring special assistance, Singapore Airlines
provides passengers with wheelchairs, before and during the flight.
Information briefings can be tailored separately for any visually or hearing-
impaired passengers.
Singapore Airlines plans regarding special assistance, comply with both the US
Department
of Transport’s Non-discrimination
act (14 CFR Part 382) and with
Australia’s Department of Infrastructure, Regional Development and Cities
Equal Access Plan.
Similarly, Jetstar Asia offers passengers with reduced mobility wheelchair
services through their journey and has a Disability Access Facilitation Plan for
customers requiring special assistance at Australian Airports.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Singapore Airlines’ Customer
Service plan states that:
•
Passengers will be notified via the web site, telephone and at the
boarding gate, within 30 minutes of discovering a flight delay, cancellation
or diversion.
Air passenger rights
framework
January 2020 | 451
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0478.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Singapore
•
•
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
Upon request a passenger will be informed if whether the flight they are
travelling on is overbooked.
All bookings made through their website will offer the lowest fare
available, and passengers will be advised if a lower fare is available.
As detailed below, in the event a flight is cancelled or delayed, the passenger is
entitled to a full refund in respect of the unused portion of the ticket.
Singapore Airlines Conditions of Carriage state that:
In the event that it cancels, terminates, diverts or fails to operate a flight
according to schedule, it will either;
•
Carry the passenger on another Singapore Airlines service; or
•
Re-route the passenger to the destination shown on the ticket, on either a
Singapore Airlines service, another airline or via surface transportation. If
the total value of the revised routing is less than the refund value, the
passenger will be refunded the difference; or
•
Refund the passenger, the amount of refund will be calculated in respect
of the unused portion of the ticket.
Singapore Airlines Conditions of Carriage state that:
In the event of a tarmac delay at a United States Airport or a Chinese Airport,
the Contingency Plan for Length Tarmac Delays shall apply, giving passengers
right to assistance after 2 hours.
Singapore Airline’s Customer Service plan states that in the event a service is
cancelled, diverted or delayed, the passenger will be provided with meals,
accommodation, and transfers as reasonable.
Right to get assistance
in case of long delays
at departure or
connecting points
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
Singapore Airlines Conditions of Carriage state that:
In the event that a passenger is involuntarily denied compensation, they will be
entitled to compensation in accordance with applicable laws and regulations.
Passenger rights to carrier liability towards passengers and baggage in
Singapore are governed by Montreal Convention 1999.
Passengers are able to complain either directly to the airline or they could raise
the complaint via CASE, the Consumers Association of Singapore.
Singapore Airlines’ Customer Service plan states that:
It will acknowledge all consumer complaints within 30 days and provide a
substantive response within 60 days.
Right to full application
and enforcement of
law
There is no national enforcement body of passenger rights in Singapore.
January 2020 | 452
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0479.png
Study on the current level of protection of air passenger rights in the EU | Final Report
South Africa
South Africa
General description
Airport Company South Africa owns and manages a network of nine airports in
South Africa. In 2017, the airports collectively handled 41.5 million passengers,
including arrivals and departures. This represents a 4.1% increase from the
previous year.
The three main international airports in South Africa are:
•
O. R. Tambo International Airport, handled 21.2 million passengers in
2017
•
Cape Town International Airport, handled 10.8 million passengers in 2017
•
King Shaka International Airport, handled 5.6 million passengers in 2017.
The flag carrier of South Africa is South African Airways (SAA). SAA carried 6.5
million passengers in 2017, which is a slight decrease compared with 6.7
million passengers carried in 2016.
Other South African based airlines are:
•
Low-cost airline Kulula.com, an operation of the Comair Group, which also
offers scheduled flights under a British Airways franchise. As a Group,
Comair carried 5.5 million passengers in 2016
•
Mango Airlines, a low-cost airline (owned by South African Airways) which
carried 3.0 million passengers in 2016
•
SA Express, which carried 1.3 million passengers in 2015
•
SA Airlink, a regional airline
•
FlySafair, a low-cost airline.
Air passenger rights
data
Airports Company South Africa reports each airline’s on-time
performance.
Based on IATA’s standard benchmark, a flight is considered to be on-time
if it is
within 15 minutes of the original scheduled departure time.
For O.R Tambo International Airport, the 15 minute on-time performance in
June 2019 was reported as:
•
Airlink
–
91.8%
•
FlySafair
–
91.0%
•
British Airways Domestic
–
87.9%
•
South African Airways
–
83.7%
•
Kulula.com
–
83.1%
•
SA Express
–
67.7%
•
Mango Airlines
–
67.0%
Air passenger rights
framework
There is no specific air passenger rights legislation in South Africa.
Passengers rights are governed by the individual airline’s conditions of
carriage. Below we consider the conditions of carriage for South African
Airways (SAA) and kulula.com.
Right to mobility
Both airlines ask passengers with special assistance needs to inform them 48
hours prior to the flight. Any passenger who has disclosed their special
requirement needs at the time of the booking and have been accepted by the
airline will not be refused boarding due to their special requirements or
disability.
Both airlines state that they will disclose the taxes and fees of the ticket
separately. In the case of any increase of these fees after the ticket has been
issued, the passenger will have to pay the increase.
Right to information
before purchase and at
the various stages of
January 2020 | 453
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0480.png
Study on the current level of protection of air passenger rights in the EU | Final Report
South Africa
travel, notably in case
of disruption
SAA states that they will provide the following information:
•
The total amount paid in the national currency;
•
The rules of rebooking, refunds and no-show fees;
•
Information relating to connecting time and possible airport changes; and
•
The rules and values of the transport of baggage.
Where the passenger has provided contact information, the airline will
immediately inform the passenger or authorised agent, in the event of a flight
delay, cancellation or disruption. SAA will provide information for the reason
for the delay or cancellation in writing upon request.
Right to renounce
travelling when trip
not carried out as
planned
SAA states that if it cancels a flight, fails to operate a flight reasonably
according to schedule, fails to stop at the passenger’s destination or causes
them to miss a connecting flight, the passenger will be entitled to a full refund.
Kulula.com states that if the flight is delayed by over 5 hours or the passenger
has been involuntarily denied boarding, they will be entitled to a full refund.
Right to fulfilment of
the transport contract
in case of disruption
SAA states that if it cancels a flight, fails to operate a flight reasonably
according to schedule, fails to stop at the passenger’s destination or cause
them to miss a connecting flight, the passenger will be given the option to
either:
•
Be carried on the next available flight on an SAA service; or
•
Be re-routed to the destination shown on their ticket by either a SAA
service or of another airline, without additional charge; or
•
Receive a full refund.
Similarly, Kulula.com offers their passengers the same options in the event a
flight has been delayed by 5 hours or more.
In the event of involuntary denied boarding, other than Force Majeure, the
passenger will be compensated as may be required by any law that applies.
Right to get assistance
in case of long delays
at departure or
connecting points
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Kulula.com states that it does not provide meal vouchers, or hotel
accommodation in the event of flight cancellations.
No rights to assistance are mentioned
in SAA’s Conditions of Carriage.
No rights to compensation are mentioned in the airlines’ conditions of
carriage.
For domestic Kulula.com flights:
•
Liability for loss, delay or damage to baggage is limited to 17 SDR (21 EUR)
per kilogram for checked baggage and 332 SDR (410 EUR) for unchecked
baggage
•
Passenger liability is limited to 113,000 SDR (139,453 EUR)
For SAA flights;
•
Liability for baggage loss for checked baggage is up to 19 SDR (24 EUR) per
kilogram per passenger, where the Warsaw convention applies
•
Liability for baggage loss for checked bagged is 1,131 SDR (1,400 EUR)
where the Montreal convention applies
•
Passenger liability for domestic SAA flights is limited to 1,000,000 ZAR
(63,997 EUR)
January 2020 | 454
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0481.png
Study on the current level of protection of air passenger rights in the EU | Final Report
South Africa
For both airlines liability for international flights is governed by the Montreal
and Warsaw Convention.
Right to a quick and
accessible system of
complaint handling
Right to full application
and enforcement of
law
Passengers are able to complain to the airline directly or via the National
Consumer Commission (NCC) of South Africa. They are the primary regulator of
consumer-business interaction in South Africa. Consumers are able to take a
dispute to the NCC.
There is no designated body for air passenger rights in South Africa.
As mentioned above, the NCC regulate consumer-business interaction in South
Africa. The NCC conducts investigations into any complaints it receives,
including complaints received by air passengers.
January 2020 | 455
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0482.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Turkey
Turkey
General description
Air passenger traffic at Turkey’s airports reached 210 million passengers in
2018, an increase of 8.8% from the previous year.
As of 2017, Turkey’s largest airports were the following:
•
Atatürk International Airport
–
61.1 million
•
Sabiha Gökçen International Airport
–
31.3 million
•
Antalya Airport
–
26.4 million
•
Esenboğa International Airport –
15.8 million
•
Adnan Menderes Airport
–
12.8 million
Ataturk Airport was replaced by the newly constructed Istanbul Airport, in
order to meet Istanbul’s growing air traffic.
Both airports ran in parallel for 5
months from October 2018. The last flight left Ataturk Airport on 6 April 2019.
The airport construction is due to be fully completed in 2027 and to be the
largest airport in Europe, with 6 runways and a capacity of 200.0 million
passengers per year.
Turkish Airlines is the national airline of Turkey. In 2018, they carried a total of
75.2 million passengers, including 20.5 million domestic passengers and 42.2
million international passengers.
The second largest airline in Turkey is Pegasus Airlines, which carried 30.0
million passengers in 2018, representing a 7.7% increase from the previous
year.
Following that the major airlines in Turkey and their seat capacity in 2017
were:
•
Atlasglobal
–
4.3 million passengers
•
Onus Air
–
3.5 million passengers
•
SunExpress
–
3.0 million passengers
Air passenger rights
data
Air passenger rights
framework
No data found on air passenger rights.
Air Passenger Rights in Turkey are governed by SHY Passenger. SHY Passenger
was implemented by the Directorate General of Civil Aviation (DGCA) of Turkey
in January 2012 and was issued in parallel with EU Regulation 261/2004.
It is applicable to all scheduled or non-scheduled flights for airlines of Turkish
origin or for foreign airlines departing Turkish Airports.
Right to mobility
Article 12 of the Regulation states that airlines shall give priority to passengers
with restricted mobility and their accompanying passenger. In cases of denied
boarding, cancellation and all kinds of delay, passengers with restricted
mobility shall be to be provided with the assistance detailed below as soon as
possible.
Article 15 of the Regulation states that all airlines upon request shall provide
passengers with a legal notice in English and Turkish of their rights in cases of
denied boarding, flight cancellation or delay of more than two hours.
Specifically, in cases of denied boarding or flight cancellation, the airlines must
provide written notification to each passenger of their right to compensation
and assistance.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
January 2020 | 456
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0483.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Turkey
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
Right to get assistance
in case of long delays
at departure or
connecting points
As per EU Regulation 261/2004.
As per EU Regulation 261/2004.
Passengers are entitled to assistance as per EU Regulation 261/2004. In cases
when assistance is required, passengers have the rights as follows:
•
Hot and cold beverages for delays between 2 and 3 hours;
•
Breakfast or lunch for delays between 3 and 5 hours, in addition to hot
and cold beverages;
•
2 phone calls, fax messages or email services or email services without
any charges or time limits; and
•
Accommodation and any necessary transfers when an overnight stay is
required.
The amount of compensation and passengers right to compensation is as per
EU Regulation 261/2004.
The airline will not be required to pay compensation in case of any
extraordinary circumstances (meteorological conditions, natural disasters,
security risks, unforeseen deficiencies in terms of flight safety, cases such as
strike, and political unrest).
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
Rights to carrier liability towards passengers and baggage are subject to the
Montreal Convention 1999.
Passengers are required to first submit any complaints regarding denied
boarding, delay or cancellation of flight, to the relevant airline. If the passenger
does not receive a response from the airline or is not satisfied with the
response, they can escalate the complaint to the DGCA.
The passenger must submit all relevant information and documents, alongside
a petition letter either via an electronic form or by mail.
The Directorate General of Civil Aviation (DGCA) of Turkey is the responsible
enforcement body for air passenger rights.
Right to full application
and enforcement of
law
January 2020 | 457
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0484.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United Arab Emirates
United Arab Emirates
General description
The largest airport in the United Arab Emirates (UAE) is Dubai International
Airport, which reported 88.2 million passengers in 2017. Following this, the
largest airports in the UAE are:
•
Abu Dhabi International Airport, with 24.5 million passengers in 2016
•
Sharjah International Airport, with 11.4 million passengers in 2017.
The largest airline in the UAE is Emirates Airlines, which carried 58.5 million
passengers in 2017. Other major airlines in the UAE are:
•
Etihad Airways, which carried 18.6 million passengers in 2017
•
FlyDubai, which carried 10.9 million passengers in 2017
•
Air Arabia, which carried 10.2 million passengers in 2017
Air passenger rights
data
No information was found across the UAE on air passenger rights.
One airline reported that it received 3,230 passenger claims in 2018 relating to
EU Regulation 261/2004, compared with 1,675 claims received in 2017. One
airline reported a total of 74,767 baggage claims received from passengers
from 2014 to 2018.
Air passenger rights
framework
There is no specific legislation in the UAE regarding air passenger rights.
Passenger rights in UAE are governed by individual airlines’ conditions of
carriages.
Right to mobility
Emirates Airlines, Air Arabia and Etihad Airways advise passengers to inform
them at least 48 hours before the flight of any special assistance needs.
Wheelchairs can be provided for passengers requiring assistance before,
during and after the flight free of charge. Passengers travelling to Sharjah
airport on an Air Arabia service will be charged 50 AED (12 EUR) for a
wheelchair service. No information was found on wheel chair provision by
FlyDubai.
Passengers requiring additional special assistance services are required to fill
out a MEDIC form.
Emirates Airlines has complaint resolution officials (CROs) in designated
airports. CROs are trained to handle special need requests and are aware of
disability regulations for air travel, specifically for travel to and from the USA.
Right to information
before purchase and at
the various stages of
travel, notably in case
of disruption
Right to renounce
travelling when trip
not carried out as
planned
Right to fulfilment of
the transport contract
in case of disruption
Emirates Airlines, Air Arabia, FlyDubai and Etihad Airways (4 airlines of the
UAE) state that they will disclose all taxes, fees and charges not included in the
fare.
In the case of flight delay, cancellation or denied boarding and the passenger is
not satisfied with the alternative option provided, the 4 airlines state that the
passenger has the right to cancel their flight and is entitled to an involuntary
refund. The amount of refund is equivalent to the unused portion of the ticket.
Specifically, in the case of FlyDubai, the refund will be in the form of a voucher.
In the case of a flight delay or cancellation, Emirates Airlines will;
•
Offer the passenger a seat on the next available flight on an Emirates
service; or
January 2020 | 458
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0485.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United Arab Emirates
•
Re-route the passenger on an Emirates service or on the flight of another
airline; or
•
If the passenger is not satisfied with the offer, they will be entitled to an
involuntary refund.
Similarly, Air Arabia and Etihad Airways make the same options available to the
passenger.
In the case of a flight cancellation, Fly Dubai will re-book you on the next
available flight to the same destination. The passenger will also be entitled to
change the date of their return flight.
In the case that either of the 4 airlines has to involuntarily deny boarding to a
passenger, the passenger will be offered a seat on the next available flight.
Fly Dubai and Emirates Airlines additionally offers the passenger a
complimentary ticket in the form of a voucher, amounting to the total fare for
the portion of the flight they have been denied boarding. Fly Dubai passengers
will also have the option to change the date of the return journey free of
charge.
Right to get assistance
in case of long delays
at departure or
connecting points
Right to compensation
under certain
circumstances
Rights to carrier
liability towards
passengers and
baggage
Right to a quick and
accessible system of
complaint handling
Right to full application
and enforcement of
law
In the case of a flight delay of more than 3 hours, FlyDubai will offer
passengers a refreshment voucher. Emirates Airlines, Air Arabia and Etihad
airlines state no rights to assistance in the case of flight disruption.
In the case of denied boarding all 4 airlines state that the passenger will be
entitled to compensation under the applicable law and the denied boarding
compensation policy of the airline.
All 4 airlines state that the rights to carrier liability towards passengers and
baggage are governed by the Montreal and Warsaw Convention.
Passengers have the right to complain directly to the airline or via an ADR
institution. The main ADR institutions in the UAE are; the DIFC-LCIA Arbitration
Centre, Dubai International Arbitration Centre (DIAC), Abu Dhabi Arbitration
Centre and the Sharjah Arbitration Centre.
There is no national enforcement body of air passenger rights in the UAE.
January 2020 | 459
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0486.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United States
United States
General description
US airlines and foreign airlines serving the United States carried 965 million
passengers in 2017.
The 4 largest US airlines in terms of annual passengers carried are:
•
American Airlines
•
Delta Air Lines
•
Southwest Airlines
•
United Airlines
The busiest airports in the United States in 2017 were:
•
Hartsfield-Jackson International Airport with 103.9 million passengers
•
Los Angeles International Airport with 84.5 million passengers
•
O’Hare International Airport with 79.8 million passengers
•
Dallas/Fort Worth International Airport with 67.0 million passengers.
Air passenger rights data
The DoT received approximately 18,000 consumer complaints in 2018. 75%
of these complaints related to four reasons:
•
Flight problems (cancellation, delay, missed connections)
•
Baggage
•
Customer service
•
Reservations, ticketing, booking
Airlines are required to report accurate data on on-time performance, denied
boarding, and mishandled baggage (although this requirement is general, not
just under consumer protection rules).
As reported by U.S DoT, 82.3% of all U.S flights were on time in October
2018. The main causes of delay were due to delay within the air carrier’s
control, delay due to late arrival of the aircraft and national aviation system
delay, this includes delay relating to non-extreme weather, heavy traffic and
airport operations. In October 2018, 5,202 (0.8%) of all flights at U.S Airports
were cancelled, a very slight increase from October 2017, where 3303 (0.7%)
of all flights were cancelled.
Air passenger rights
framework
The United States adopted different rules implementing passenger rights
which are codified in the Code of Federal Regulations in the Title 14 entitled
Aeronautics and Space (14 CFR). The regulations apply to all air carriers based
in the United States and to foreign carriers that depart from or arrive at U.S
airports. Additionally, the regulations apply to all U.S airports and to
commercial airlines only.
Since 1999, the U.S DoT requires all airlines flying to, from and within the
United States to have and publish a Customer Service Commitment. This is a
requirement from the U.S DoT, but is not part of the contract of carriage,
therefore airlines are not liable for any violation of their Commitment. The
DoT rules for the commitment outline 12 elements, including compensation
requirements for lost baggage and denied boarding, expanding tarmac delay
rules to foreign carriers and full disclosure of fees at all points of sale.
Right to mobility
The Air Carrier Access Act of 1986 (ACAA) is Title 49, Section 41705 of the
U.S. Code.
January 2020 | 460
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0487.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United States
An air carrier cannot require a passenger with a disability to provide notice of
their intention to travel or their disability as a condition of receiving
transportation or of receiving services or accommodation required by this
part. However, in certain cases when the passenger requires specific
requirements, for example, hook up to a respirator, medical oxygen or an
onboard wheelchair, the carrier requires up to 48 hours of notice.
The airline is obligated under the act to ensure assistance is provided in;
moving the passenger from terminal entrance to the airport gate, guiding to
a restroom entrance and boarding and deplaning. Under the act, certain
airlines are required to provide certain seating accommodations to qualified
passengers with disabilities who self-identify as needing as having specific
seating requirements. Every airline is required to have at least one
designated Complaint Resolution Officer (CRO) available either by telephone
or in person during operating hours. A CRO is responsible for resolving
disability
–
related issues that have escalated beyond an initial interaction
with airline personnel.
Right to information
before purchase and at
the various stages of
travel, notably in case of
disruption
The DoT requires airlines and travel agencies that display ticket prices to
advertise the total price that a consumer must pay to purchase a ticket.
Whenever an airfare is advertised, the fare price must include all applicable
government taxes and fees, and any mandatory carrier-imposed surcharges.
Airlines and ticket agents are prohibited from automatically including
optional services in the ticket price. After the ticket is fully purchased, the
airline is prohibited from increasing the price of a ticket or requiring the
passenger to pay additional money unless the airline provided notice to the
consumer of the potential for an increase in a government-imposed tax.
According to 14 CFR, all airlines are required to provide passengers with
information about a change in the status of the flight if the flight is scheduled
to depart within 7 days. Airlines are required to give these status updates 30
minutes (or sooner) after the airline becomes aware of a status change. The
flight status information must, at a minimum, be provided on the airline's
website and via the airline's telephone reservation system.
Right to renounce
travelling when trip not
carried out as planned
Right to fulfilment of the
transport contract in
case of disruption
The Regulations state that in the instance a passenger’s flight
is cancelled
and the passenger has chosen to cancel the trip as a result, the passenger will
be entitled to a refund for unused transportation, including any baggage fee
or additional seating costs.
The Regulations states that in cases of overbooking, an airline must first ask
passengers to give up their seats voluntarily, in exchange for compensation.
DoT requires airlines to give all passengers denied boarding a written
statement explaining their rights. Passengers denied boarding will be offered
re-routing and compensation options, regardless of whether the passenger
has been voluntarily or involuntarily denied boarding.
For delayed flights, some airlines will offer a refund this depends on the
individual air carrier’s policy. DoT has not specifically defined ‘significant
delay’, however they will determine on a case by case basis whether a
passenger is entitled to a refund.
As mentioned above, in the instance a passenger’s flight is cancelled, and the
passenger has chosen to cancel the trip as a result, the passenger will be
entitled to a refund for unused transportation, including any baggage fee or
January 2020 | 461
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0488.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United States
additional seating costs. For all other cases of a cancelled flight, whether a
passenger is entitled to compensation or a refund depends on the individual
airline’s policy.
American Airlines
states that in the case a flight is delayed or cancelled, it
will rebook the passenger onto the next available flight or offer them a full
refund.
Delta Air Lines
states that in the case of a flight delay, cancellation or
diversion greater than 90 minutes it will offer the passenger either a seat on
the next available flight on its services or offer the passenger a full refund of
the unused portion of the ticket.
Southwest Airlines
states that if a passenger’s scheduled flight is cancelled,
terminated or delayed before the passenger has reached their final
destination, the passenger will be offered to either be re-routed on another
service, refunded the fare of the unused portion of ticket, or offered credit
towards the purchase of future travel.
United Airlines
states that when a passenger’s fight is affected by more than
30 minutes, the passenger will be offered a new ticket on a United Airlines
service within 7 days of the original departure time. Alternatively, the
passenger can use the value of their ticket towards future travel on United
Airlines or be eligible for a refund upon request.
Right to get assistance in
case of long delays at
departure or connecting
points
The only case where assistance provided is defined in the ACAA is in the
instance of a tarmac delay. Every airline operating to and from the U.S with
at least one aircraft with 30 or more passengers is required to follow tarmac
delay contingency plans.
The airline has the obligation to return the aircraft to the gate and give
passengers the option to deplane if:
•
3 hours of delay have passed for domestic flights
•
4 hours of delay have elapsed for international flights
After 2 hours of delay, the airline must provide food and refreshments to the
passengers.
When a flight is cancelled or delayed, each airline has its own policies about
what whether it will provide assistance.
In the case of denied boarding, airlines may offer incentives such as free
meals, accommodation or transfers, however there is no requirement for the
airline to provide this.
Right to compensation
under certain
circumstances
In cases of denied boarding, passengers are entitled to a compensation
amount of 200% the original fare with a maximum of 675 USD (603 EUR) if:
•
They reach their destination more than 1 hour after the scheduled
arrival time for domestic flights; or
•
They reach their destination between 1 to 4 hours after the scheduled
arrival time for international flights.
Passengers are entitled to a compensation amount of 400% of the original
fare with a maximum of 1,350 USD (1,205 EUR) if:
January 2020 | 462
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0489.png
Study on the current level of protection of air passenger rights in the EU | Final Report
United States
•
•
They reach their destination more than 2 hours after the scheduled
arrival time for domestic flights;
They reach their destination more than 4 hours after their scheduled
arrival time for international flights.
In the United States, airlines are not required to compensate passengers
when flights are delayed or cancelled.
Rights to carrier liability
towards passengers and
baggage
Airlines are responsible for repairing or reimbursing a passenger for damaged
baggage, including its contents, when the damage occurs while the bag is
under the airline’s control. This is subject to maximum liabilities; for domestic
flights this is capped at 3,500 USD (3,126 EUR) and for international flights
this is capped at 1,131 SDR (1,400 EUR) in line with the Montreal Convention.
The United States follows the Montreal Convention for carrier liability
towards passengers.
Right to a quick and
accessible system of
complaint handling
The U.S DoT requires all airlines to inform their consumers of how to submit
a complaint to the airport or airline. Airlines have trouble-shooters at the
airports, usually called Customer Service Representatives, who can deal with
the problem on the spot. If a problem is not resolved at the airport, the
passenger can submit a claim through the airline. Once a passenger submits a
complaint to the airline, the airline is required to send an acknowledgment of
the complaint within 3 months, and a written response addressing the
complaint within 6 months. If the passenger is not satisfied with the response
from the airline, they can they then progress their complaint to the DoT.
Additionally, a passenger may file a complaint with DoT if they feel that they
have experienced unlawful discrimination by the airline’s employees.
The U.S DoT is responsible for enforcing the ACAA, which applies to all flights
to, from, or within the United States. The U.S DoT has the power to regulate,
monitor and enforce passenger rights, including the rights of passengers with
reduced mobility. It does not have the direct authority to compensate
passengers but can launch investigations with the airline where appropriate.
The Aviation Consumer Protection Division (ACPD) is a body of the U.S DoT
.The ACPD reviews and responds to consumer complaints and promotes
awareness and understanding of consumer rights through online consumer
information and education.
Right to full application
and enforcement of law
January 2020 | 463
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0490.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G Airline insolvency case studies
Cyprus Airways
Background
G.1
Cyprus Airways was the Cypriot flag carrier and had been in operation since the 1940s. It flew
predominately to destinations in Europe and the Middle East. Since Cypriot independence in
1960, the Cypriot government had been the majority shareholder in the airline, and although
the size of its stake varied throughout the years, by September 2014 its stake was 93.7%.
The figure below shows the number of Cyprus Airways’ seats departing from Larnaca and
Paphos airports between 2009 and 2014.
Figure G.1: Cyprus Airways departing seats (2009-2014)
G.2
Source: OAG
G.3
Cyprus Airways’ capacity declined significantly during this period, falling from over 1.3 million
departing seats in 2010, to just over 0.5 million in 2014. Over the same period, the total
number of passengers carried by Cyprus Airways fell from 1.6 million in 2009 to 1.3 million in
2012
–
official passenger numbers are not available after 2012. At the end of 2014, Cyprus
Airways had 560 employees and flew to 13 destinations on a fleet of six A320s.
Bankruptcy process
G.4
Cyprus Airways had been struggling financially since 2006, due to increased competition from
low-cost carriers, compounded by the fallout from the 2007-2008 financial crisis. After several
years of the Cypriot government attempting to keep the airline in operation, through capital
January 2020 | 464
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0491.png
Study on the current level of protection of air passenger rights in the EU | Final Report
injections, loans and attempted sales, the airline ceased operations in January 2015 as a result
of a state aid ruling by the European Commission.
G.5
The Commission declared some of the state aid paid to Cyprus Airways, by the Cypriot
government, was illegal and had to be returned, which effectively caused the airline to be
bankrupt. A timeline of the events leading up to the Commission’s decision is shown in the
table below.
Table G.1:
Chronology of European Commission’s state aid ruling
Date
September
2007
2010-2011
February 2012
September-
December
2012
December
2012
Commission authorises restructuring aid package of €95 million for Cyprus Airways.
Cyprus Airways receives €269,000 training aid
under the exemption regime for
unproblematic support measures.
The Commission starts a preliminary investigation after learning from press reports
that a capital increase was planned for Cyprus Airways.
The Cypriot government
injects capital worth €31.3 million into the airline.
The Cypriot government provides €73 million of rescue aid to the airline. Several
tranches of this loan
– €34.5 million in total –
were paid out between January and
July 2013, in breach of Cyprus' obligation to await the result of the Commission's
state aid scrutiny.
The Commission opens an in-depth
investigation into the €73 million rescue aid
package and the €31.3 million capital injection.
The Cypriot
government provides a €102.9 million aid package to restructure
Cyprus Airways for state aid clearance. The package covered the €31.3 million
capital injection already granted in 2012, a conversion of debts into equity
amounting to €63 million and €8.6 million
to cover the deficit of the company's
employee benefit scheme.
The Commission opens an in-depth investigation to assess the restructuring aid
package.
The Commission rules that that the restructuring aid package of
over €100 million
is in breach of EU state aid rules, ordering Cyprus Airways to pay back over €65
million to the Cypriot government.
March 2013
October 2013
February 2014
January 2015
Source: European Commission
Announcement of bankruptcy
G.6
On Friday 9 January, the board of Cyprus Airways announced it was suspending all operations
following the European Commission state aid ruling. At a press conference on the same date,
that officially announced the end of the airline, Cypriot government minsters stated that
(although it was not legally obliged to do so) “The
Republic will undertake fully the cost of the
alternative flights and therefore the passengers will not be burdened in any way”. This meant
that every passenger, with a flight booked on Cyprus Airways, would receive either a full
reimbursement or an alternative route with a different airline.
On the same day, Cyprus Airways issued a statement online with instructions on how
passengers should seek reimbursement or alternative travel arrangements:
G.7
January 2020 | 465
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0492.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Dear Passengers,
Following the adverse decision of the European Commission for Competition, issued
January 9, on the application of the Republic of Cyprus of a Restructuring Plan for
Cyprus Airways (Public) Ltd submitted in October 2013, the Board of Directors of
Cyprus Airways has decided to initiate the procedure for voluntary liquidation and to
that effect all necessary measures will be taken.
In the context of the above decision all operations of the company will be suspended as
of the close of business January 9.
[…]
The government of Cyprus announced that it has decided to offer alternative
arrangements to all passengers who have Cyprus Airways tickets. The cost of all
alternative arrangements will be undertaken by the Republic.
The affected passengers of Cyprus Airways, who have arranged their travel with
departure days up to and until 9/2/2015, can immediately contact the travel agency
Top Kinisis Travel Public at the national telephone number 77787878, or if they are
calling from overseas at the telephone number +357 22869999, in order to arrange for
the issuance of a new flight ticket. For the remaining passengers, with departure date
from 10/2/2015 and onwards, a new announcement will be made in the coming days.
Additional information will be given for the arrangements that are made and/or other
useful information for the passengers, on the website of the travel agency
www.topkinisis.com.
G.8
Although this statement was posted online and was widely reported in the press, it is not clear
whether the ceasing of Cyprus Airways’
operations, or instructions on who they should
contact, were directly communicated to passengers.
Impact on passengers
G.9
Soon after the bankruptcy announcement, on Tuesday 12 January it was reported that on
Saturday 9 (the day the bankruptcy was announced) and Sunday 10 January, Top Kinsis Travel
assisted 4,000 people and took 18,000 calls from Cyprus and abroad. The head of Top Kinsis
Travel, Akis Kelepesis, also stated that “the vast majority” of passengers flew close to their
original departure times; three flights were charted to Amsterdam, London and Moscow,
although there had been some delays on flights to and from Greece. Kelepesis also stated that,
based on its current contract with the Cypriot government valid until 9 February, Top Kinsis
Travel expected to assist a further 7,000 passengers.
For passengers who did not want to wait to be re-routed, some airlines, including Ryanair and
British Airways, also offered temporary “rescue fares”. Ryanair offered flights from Paphos to
Stansted for £69.99,
and to Athens and Thessaloniki for €49.99. British Airways offered flights
from Larnaca to Heathrow or Gatwick for £75 until the end of January 2015.
A subsequent announcement, made by the Cypriot government at the end of January stated
that, up until 28 February, passengers with a booking from 10 February to 25 October (the
date of the last booking) should contact any travel agent licensed by the Cyprus Tourism
Organisation (CTO) to issue new tickets or reimbursement, and that any additional costs
concerning re-ticketing would be undertaken by the Republic of Cyprus. However, the
announcement also stated that, if passengers missed the February 28 deadline, they would
G.10
G.11
January 2020 | 466
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0493.png
Study on the current level of protection of air passenger rights in the EU | Final Report
not be allowed to claim a replacement ticket and no further arrangements would be made by
the government.
G.12
In March 2016, it was reported that the total sum paid to Top Kinisis Travel by the Cypriot
government for assisting passengers was €3.3 million. This included €3.2 million for “replacing
the pre-paid Cyprus Airways tickets with those for
other airlines” and a €100,000
administration fee (€10 per passenger) – it is not clear whether the €3.2 milion also included
the cost of ticket reimbursements.
This administration fee implies approximately 10,000 passengers were re-routed with other
airlines by Top Kinisis Travel; however, it should be noted that for bookings after 10 February
2015, passengers were instructed to seek assistance through any CTO licenced travel agent
–
not just Top Kinisis Travel, as had been the case for bookings prior to this. Therefore, it is likely
that more than 10,000 passengers were affected in total, as many passengers would have
dealt with other Cypriot travel agents.
Based on Cyprus Airways’ weekly seats in December 2014, and the load factor, length of stay
and booking profile assumptions set out in the section above, we estimate that approximately
16,500 passengers would have required alternative travel arrangements
–
which is consistent
with the figures reported above
–
and a further 100,000 would have had the cost of their
ticket reimbursed.
Given the intervention by the Cypriot government, it is likely that very few passengers were
left stranded or with unreimbursed cancelled bookings. However, although the Cypriot
government covered the costs of reimbursements and re-routings, it is not clear whether it
also covered the costs of care (such as food and accommodation), which passengers would
normally be entitled to in the event of a flight cancellation. While the government
announcements suggest it may have also paid passenger care costs, we have been unable to
verify whether this was the case.
Aftermath
G.16
The total number of seats departing from Cypriot airports (Larnaca and Paphos), between
2009 and 2018, is shown in the figure below. In the days following Cyprus Airways’
bankruptcy, Aegean Airlines (which took over Olympic Air’s operations in 2014) and Blue Air
expanded their Cypriot operations substantially and, in the subsequent years, maintained and
increased their share of capacity respectively.
G.13
G.14
G.15
January 2020 | 467
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0494.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure G.2: Evolution of capacity (departing seats) at Cypriot airports
Source: OAG
G.17
In the years following Cyprus Airways’ bankruptcy, overall capacity operating from Cypriot
airports increased significantly and air connectivity (number of destinations) increased 15% in
the first 6 months of 2016 compared to the equivalent period in 2015. As well as Aegean
Airlines and Blue Air, the increase in overall capacity was driven by capacity growth from Wizz
Air, easyJet and TUI Airways (formerly Thompson Airways). This increase in overall capacity
was also in spite of the fact that several airlines operating from Cyprus also went bankrupt
between 2015 and 2018, including Transaero (2015), Monarch (2017) and Cobalt (2018)
–
Ryanair and Aeroflot/Rossiya significantly increased their capacity in the aftermath of Cobalt’s
bankruptcy.
In July 2015, it was reported that the Cypriot government was establishing whether it could
negotiate an agreement that would allow a private investor to use the Cyprus Airways
branding and logo, which it has bought in December 2014 for €1.2m. In July 2016, it was
announced that Charlie Airlines (established by S7 Airlines and a consortium of private
investors) had won the right to use Cyprus Airways trade mark rights, for €2 million, for a
period of ten years. The airline has been operating flights from Cyprus from June 2017 as
Cyprus Airways, although its share of overall capacity is significantly lower than that of Cyprus
Airways prior to its bankruptcy in 2015.
G.18
January 2020 | 468
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0495.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Monarch
Background
G.19
Monarch Airlines (Monarch), was founded in the 1960s and for most of its time, operated as a
charter airline that carried passengers between the UK and Mediterranean holiday
destinations. In 2004, Monarch adopted more of a low-cost airline model and later
significantly scaled down its charter services. Monarch Airlines was part of the Monarch
Group, owned by Monarch Holdings Ltd, which in turn was 90% owned by Greybull Capital.
The structure of Monarch Holdings Ltd. and its subsidiaries is show in the figure below.
Figure G.3: Structure of Monarch Group of Companies
Source: Steer, ABTA, Financial Times, Companies House
G.20
Monarch Holdings Ltd went into administration and ceased operations at the same time as the
collapse of the airline. Monarch Aircraft Engineering continued to operate after October 2016,
but also went into administration in January 2019.
Monarch operated from a number of UK airports, with its headquarters at Luton and operating
bases at Birmingham, Leeds/Bradford, Gatwick and Manchester.
Monarch’s departing seats
from the UK, between 2009 and 2017, are shown in the figure below. Over half its seat
capacity was on routes to Spain, with the remainder accounted for by other Mediterranean
destinations. When it ceased operations in October 2017, Monarch flew to 43 destinations
with a fleet of 35 aircraft and 2,300 employees.
G.21
January 2020 | 469
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0496.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure G.4: Monarch departing seats (2009-2017)
Source: OAG
*To October 2017
G.22
Although Monarch’s seat capacity grew strongly between 2010 and 2014, due to financial
difficulties, in 2014 Monarch reduced the size of its operations and closed its East Midlands
airport operating base.
Monarch’s total passengers and load factor over the
same period are shown in the figure
below.
Figure G.5: Monarch passengers and load factor (2009-2017)
G.23
Source: OAG
*To October 2017
January 2020 | 470
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0497.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.24
From 2014, Monarch’s
passengers declined significantly, and at a greater rate than seat
capacity, which meant the passenger load factor also declined (although this did recover
slightly in 2017). The fall in passenger demand was due in part to political instability in Egypt
and Turkey, which had a negative impact on demand to these destinations. The fall in
passenger demand was a major contributing factor in Monarch’s bankruptcy.
ATOL
G.25
Some passengers who travelled (or had bookings with Monarch) were protected under Air
Travel Organisers' Licensing (ATOL), which is a UK consumer protection scheme administered
by UK Civil Aviation Authority (CAA) that protects passengers who book a package holiday with
most travel companies in the UK, to ensure they do not lose money or become stranded
abroad if their travel company collapses.
As ATOL was designed primarily as a package holiday protection scheme, it does not apply to
flights booked directly with scheduled airlines or to flights booked with airline ticket agents.
Therefore, Monarch passengers who had a booking as part of a package holiday were covered
by the scheme. However, passengers who booked flights with Monarch Airlines were not
covered, unless they booked their flight prior to 14 December 2016.
This is because Avro Ltd. and First Aviation Ltd, which were both part of the Monarch travel
group (shown in Figure C.3) and held ATOL licences, used to sell ATOL protected flights on the
behalf of Monarch Airlines but ceased trading in December 2016. After these entities ceased
trading, flight only bookings were made directly with Monarch Airlines Ltd. and were not
covered by ATOL protection.
Bankruptcy process
G.26
G.27
G.28
Monarch had been struggling financially for a number of years prior its bankruptcy; in August
2014 the airline scaled down its operations in an effort to reduce costs and in October 2014,
Monarch was acquired by Greybull Capital shortly before its ATOL licence was due to expire
with the CAA. The acquisition was followed by further reductions in operations and a decision
to concentrate only on low-cost short-haul routes.
In September 2016, with Monarch’s ATOL licence due to expire at the end of the month, the
airline was forced to respond to speculation that it was on the verge of bankruptcy, stating
that it was "trading well" despite a difficult period for the industry. After talks with the CAA,
Monarch’s ATOL licence was temporarily extended to 12 October 2016, and was formally
renewed for another year on 12 October, after a £165 million cash injection from Greybull
Capital. It was later reported that the CAA spent approximately £26 million during this period,
in preparation to repatriate passengers, in the event that Monarch had gone bankrupt and
ceased operations.
In September 2017 the following year, when Monarch’s ATOL licence was
due to expire, the
airline was again with talks with the CAA over the renewal of the licence due to financial
difficulties. After the CAA had extended the licence for a further 24 hours on 30 September,
Monarch Airlines went into administration at 4am on the 2 October 2017 (Monarch Travel
Group and Monarch Holdings also went into administration), after the required cash injection
(similar to that provided in 2016) was not provided by Greybull Capital.
Although Monarch only required an ATOL licence for its package holiday business, which
represented approximately 5% of its flying operations, the CAA deputy director of consumer
protection stated that it would not have been possible for Monarch Airlines to continue flying
G.29
G.30
G.31
January 2020 | 471
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0498.png
Study on the current level of protection of air passenger rights in the EU | Final Report
without package holiday business, Monarch
Travel Group, as the “two businesses were joined
at the hip. They really were one business. Monarch had been trying to convert to a low-cost,
short-haul
carrier, but it was a leisure carrier. You cannot pull the two companies apart.”.
G.32
As in 2016, the CAA had been preparing to repatriate passengers (for approximately four
weeks) prior to the announcement.
Announcement of bankruptcy
G.33
On the morning of the 2 October, Monarch announced, via twitter, that it had suspended all
flights and directed passengers towards a CAA resource page. As well as also tweeting the
announcement, instructions on who to contact, and advice that passengers with bookings
should not travel to the airport, the CAA took over Monarch’s website and set up a 24-hour
telephone helpline to advise passengers.
On the day of the announcement, the CAA’s webpage stated that:
•
•
•
G.35
Monarch customers in the UK and yet to travel: Do not go to the airport. There will be no
more Monarch flights.
Monarch customers abroad: everyone due to fly in the next fortnight will be brought back
to the UK at no cost to them. There is no need to cut short your stay.
All affected customers should check the new website monarch.caa.co.uk for more
information.
G.34
The CAA stated that passengers would be brought home on flights as close as possible to their
original times, dates and destination, but some consolidation, disruption and delay was
inevitable. Monarch also tweeted a link to a webpage, where passengers who were stranded
abroad were able to check the details of their new flights a at least 48 hours in advance.
Although the bankruptcy was widely reported in the press on the morning of the
announcement (often with information and advice for passengers), as well as by Monarch’s
administrators, it is not clear whether passengers with bookings were contacted directly with
the news
–
it was reported that many passengers only found out once they arrived at the
airport for their flight. On the other hand, some passengers reported being informed by text
on the way to the airport.
Posters were also put up at Monarch check in desks within airports, which stated the
following:
All Monarch Airline flights form 2 October 2017 are cancelled as the airline has ceased
trading.
The CAA and Government are organising flights back to the UK for the 110,00 Monarch
customers due to return to the UK on or before 15 October 2017.
For more information, check:
Monarch.caa.co.uk
03003032800 (UK and Ireland)
+441753330330
G.36
G.37
January 2020 | 472
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0499.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Impact on passengers
G.38
It was widely reported that Monarch’s bankruptcy left 110,000
passengers stranded abroad
with a further 300,000 outstanding bookings, reported to have had an impact on 750,000 to
860,000 passengers. Although passengers who had a flight booked with Monarch through a
package holiday (or had booked a flight prior to 14 December 2016), were covered by ATOL,
passengers who had booked a flight directly with Monarch were not. However, the decision
was taken by the UK government and CAA to repatriate all stranded passengers, not only
those with ATOL protection.
It was later reported that passengers with ATOL protection accounted for only around 20% of
all stranded passengers. This figure is higher than that implied by the size of Monarch’s ATOL-
protected-charter operations (5% of flying operations), which suggests some of those flying on
Monarch’s scheduled services were ATOL protected, because they booked the flight as part of
a package or before 14 December 2016.
The UK government stated this decision was taken because there was deemed to be too few
seats available on other airlines (on the routes previously operated by Monarch), therefore it
was likely many passengers would have had to have waited days or weeks to return home. The
repatriation operation, at a cost of approximately £60 million, comprised of a total of 38
aircraft from 15 European, Middle Eastern, and Canadian operators, including Qatar Airways
(10 aircraft), Titan Airways (5 aircraft), Air Transat (4 aircraft), Freebird Airlines and Wamos Air
(3 aircraft each), and smaller numbers from other airlines and charter operators.
Although some of the £60 million of costs was covered by the ATOL protection scheme, the UK
government covered the majority of the cost. The government stated at the time that it
intended to “recover
the money from other parties”,
but
more recent reports suggest the
government has ceased attempting to recover these costs.
The repatriation operation was described by the UK government transport secretary as the
“biggest
ever peacetime repatriation”.
Although the CAA initially believed it
would need to
repatriate 110,000 passengers, based on passenger information provided Monarch, the final
total was approximately 85,000. Some passengers who had a flight back to the UK booked
with Monarch after 2 October did not made make their outbound trip due to the bankruptcy,
while others made their own arrangements to get home.
The CAA stated that ATOL protected customers would receive a refund within 28 days of
making a claim and that the total cost of the refunds was expected to be approximately £21
million. At the time of the bankruptcy the CAA chief executive stated that (by its estimations)
approximately 50% of passengers with outstanding bookings were thought to be covered by
ATOL protection and were therefore eligible for refund. However, given it was later reported
that only 20% of the stranded passengers were covered by ATOL, the 50% figure in relation to
the number of passengers affected could have been an overestimate.
The CAA chief executive also stated that other passengers should receive refunds from their
credit or debit card providers through Section 75 and chargeback. Under Section 75 of the
Consumer Credit Act, if the cardholder paid more than £100 (and under £30,000) for a good or
service, the card company is equally liable as the good or service provider to pay
compensation. Under chargeback, although it is not a legal requirement (only a customer
service promise), card companies refund card holders for goods or services bought (for under
£100) but not received. It was reported that some passengers received refunds through these
protection mechanisms, but the overall number is not known.
G.39
G.40
G.41
G.42
G.43
G.44
January 2020 | 473
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0500.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.45
Although the UK government, through the CAA, covered the cost of return flights for stranded
passengers, it was not reported whether they, or anyone else, covered the cost of stranded
passengers’ subsistence and/or accommodation costs while waiting for their return flight.
Passengers with ATOL protection are entitled to reasonable accommodation and subsistence
costs if they are delayed by more than four
hours, so it is likely some passengers’ subsistence
and accommodation costs were also recovered through ATOL.
Although the collapse of Monarch predominantly impacted passengers based in the UK, there
were also passenger’s resident in other countries that found
themselves stranded in the UK
and who were not accommodated by the UK CAA’s repatriation. For example, over 100
passengers based in Portugal contacted the Portuguese CAA (ANAC) seeking assistance. ANAC
issued a press release on its website as soon as Monarch ceased operations to advise
passengers stranded outside Portugal to contact a specific email address and/or phone
number at the authority. ANAC was in close contact with the UK CAA and also tried to
negotiate rescue fares with several airlines, although easyJet was the only airline to agree to
these with ANAC. Only about 40 passengers were rebooked on easyJet rescue fares with
ANAC’s support. The remaining passengers made their own alternative arrangements for
returning to Portugal if the availability of rescue fare seats did not suit their plans.
Aftermath
G.46
G.47
In the wake of the collapse of Monarch, the UK government commissioned the airline
insolvency review, which issued a number of recommendations aimed at improving the
framework for mitigating the impact
of airline bankruptcies. The day after Monarch’s collapse,
the Association of Independent Tour Operators (AITO) issued a statement, arguing that the
CAA’s ATOL scheme did not reflect the modern-day
tourist industry, as passengers who
booked flight directly with Monarch were not covered by the scheme.
Alongside the core proposals for a new flight protection scheme, the review proposed changes
to UK airline insolvency rules to allow an airline’s planes to be used to repatriate passengers
should the company fail (in the case of Monarch, the aircraft remained grounded). The review
also recommended that customers with future bookings should also be told more about the
risks and safeguards available and proposes a 50p air passenger levy to fund any future
repatriations.
G.48
January 2020 | 474
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0501.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Primera Air
Background
G.49
Primera Air was a Danish airline owned by the Primera Travel Group (PTG). At closure, Primera
primarily operated scheduled flights from Northern Europe to the Mediterranean, but also
ventured into the North American market shortly before its demise.
Primera was founded in 2003 as Icelandic carrier ‘JetX’, before being acquired by PTG in 2009.
In 2010 operations were transferred to a Danish operating certificate and in 2014 a sister-
airline ‘Primera Air Nordic’ was founded
in Latvia to reduce costs. Both airlines were run in
unison and would not have been distinguishable to the average customer.
Figure G.6: Structure of Primera Travel Group of Companies
G.50
Source: TravelCo Nordic, Steer. Note: Yellow
–
Airlines, Blue
–
Travel Agencies
G.51
Primera initially operated charter flights from bases in Denmark, Sweden and Iceland on
behalf of Scandinavian tour operators but started selling spare seat capacity directly to the
public from 2013. This change in strategy proved successful and Primera transitioned to a low-
cost scheduled carrier in 2014. Whilst operating as a low-cost carrier Primera still provided
capacity for passengers travelling through its partner travel agencies. The figure below shows
seat capacity offered by base country. In all years Denmark holds the largest share, followed
by Sweden from 2014 to 2017.
Primera first attempted to expand outside of the Scandinavian market in 2015 when it
operated a base at Paris CDG for the summer season; this was not a success and soon closed.
Primera attempted to expand out of Scandinavia again when it announced its long-haul debut
in July 2017. New A321neo aircraft would be based at London Stansted, Paris Charles-de-
Gaulle and Birmingham and would operate to both New York Newark and Boston,
commencing in the summer 2018 season. Toronto and Washington Dulles were later added to
the offer and some short-haul leisure flights were also added at London and Birmingham. In
2018 the UK was Primera’s second largest market.
G.52
G.53
January 2020 | 475
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0502.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure G.7: Primera Air Scheduled departing seats by base country (2014-2018)
Source: OAG. Includes capacity operated by Primera Air (PF) and Primera Air Nordic (6F). Only scheduled seats are
shown, but charter capacity was operated prior to 2014.
G.54
The figure below shows Primera’s share of capacity by destination. Until 2017 Primera was a
predominantly short/medium haul airline. Capacity was primarily offered to sun-orientated
destinations on the Mediterranean with some capacity to European ski markets in the winter.
The addition of capacity to North America can clearly be seen in 2018.
Figure G.8: Primera Air Scheduled arriving seats by destination country (2014-2018)
Source: OAG. Includes capacity operated by Primera Air (PF) and Primera Air Nordic (6F). Only scheduled seats are
shown, but charter capacity was operated prior to 2014.
G.55
The long-haul operation was hindered from the outset due to the late arrival of the A321neo
aircraft; initially capacity was wet-leased to cover for the delayed aircraft and soon after
January 2020 | 476
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0503.png
Study on the current level of protection of air passenger rights in the EU | Final Report
capacity cuts were initiated with reductions on most routes and all long-haul operations from
Birmingham being cancelled, first temporarily and subsequently permanently. The operation
was beset by delays and cancellations throughout most of the summer season leading to mass
customer dissatisfaction and a large compensation bill for Primera.
G.56
Despite the difficulties in establishing the first tranche of routes, Primera announced further
long-haul expansion for summer 2019 with new bases in Brussels, Berlin Tegel, Frankfurt and
Madrid
178
. All flights were to be operated with new 737MAX 9 aircraft.
On 1st October 2018 Primera announced that it would be ceasing operations on October 2nd
blaming ‘several unforeseen misfortunate events.’ At closure the fleet consisted of 5 A321neo,
2 B737-700s and 8 B737-800s and it employed 300 staff
179
.
Bankruptcy process
G.58
No information regarding historical transported passengers, load factors and profitability
could be found, but it was reported that Primera was not profitable throughout most of its
existence. Primera Air had €22m of negative equity in 2015 and this position remained
unchanged in 2016
180
. The airline posted a profit in 2017, however this was primarily caused
by the sale of on-order B737 aircraft, which were due for delivery in 2019. This indicates that
the airline had little financial resilience. Consequently, the airline was unable to cope with the
financial burden when the following two unforeseen events arose:
1.
2.
G.59
G.60
G.61
Repairs to an aircraft with corrosion issues cost over
€10m;
and
Delays to the new Airbus fleet necessitated wet leasing aircraft at a cost of
€20m
in
addition to a further €20m for delay and cancellation compensation.
G.57
On 1st October 2018, one aircraft was impounded at Stansted Airport for unpaid airport
charges
181
.
The owner had attempted to secure bridge financing to allow the airline to continue
operating, but when this was not forthcoming the airline had no choice to declare bankruptcy.
Whilst the above will have contributed to the airline’s demise it is also worth noting that
Primera faced heavy competition in all its operational markets. In the short-haul market, it
faced heavy competition from more established carriers, Norwegian and Ryanair, whilst it
entered the North American market when there was a glut of low-cost competition. In
addition to competing against fellow LCCs Norwegian and WOWair, Primera also had to
contend with network carriers who had cut fares to limit the impact of low-cost growth.
Announcement of bankruptcy
G.62
Primera Air employees were first e-mailed regarding the impending bankruptcy on October 1
st
.
Despite a request to keep the news confidential until a public announcement was made, the
news was soon leaked into the public domain.
178
179
https://www.aviation24.be/forums/viewtopic.php?f=7&t=64215&p=373091#p373091
https://www.aviation24.be/defunct-airlines/primera-air/breaking-primera-air-nordic-and-primera-
air-scandinavia-will-file-for-bankruptcy-tomorrow/
180
https://turisti.is/2018/10/primera-air-owner-makes-structural-changes-and-rebrands-his-company/
181
https://www.aviation24.be/defunct-airlines/primera-air/breaking-primera-air-nordic-and-primera-
air-scandinavia-will-file-for-bankruptcy-tomorrow/
January 2020 | 477
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0504.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.63
Primera Air soon issued a statement on its website confirming it will cease all operations as of
2
nd
October [Tomorrow]. The airline thanked all passengers for their loyalty and asked them to
visit primeraair.com for further updates in next few days. A copy of the statement has been
reproduced below.
Dear Passengers,
Airline Primera Air and IATA codes PF and 6F have been suspended as of
October 2nd, 2018.
On behalf of Primera Air team, we would like to thank you for your loyalty.
On this sad day we are saying Goodbye to all of you.
Please visit primeraair.com for further updates in next few days. Tour
Operator passengers are kindly suggested to address their Tour Operators
and Agents for further information and actions.
Kindly understand that the usual options for contacts (via email or phone)
can not be offered any longer.
Sincerely yours.
G.64
Although the bankruptcy was widely reported in the press, there were many customers who
complained that they were not contacted by the airline regarding the bankruptcy and in many
cases only found out once they had arrived at the airport.
The airline was also criticised for selling seats up until 5pm on the day of bankruptcy, despite
staff being made aware of the bankruptcy at 3pm
182
.
Impact on passengers
G.65
G.66
After the announcement on 1 October 2018 Primera began cancelling flights. The wave of
flights to North America on the evening of 1 October 2018 were cancelled whilst many the
passengers were waiting in the departure lounge. Passengers were issued with a letter stating
that the airline had gone bankrupt and were then led out of the airport
183
. Short-haul flights
seem to have continued later into the day with the final flight from Malaga to Copenhagen
landing just after midnight on 2 October 2018.
The ECC network and the British CAA offered advice to passengers depending on their
situation. All made it clear that:
1.
2.
3.
If you had purchased your ticket directly with the airline you should attempt to contact
them to obtain a refund.
If your ticket was part of a package trip or was booked through a third-party agency you
should contact your travel agency.
You should also contact your credit/debit card provided to see if they can provide a
refund/chargeback and your travel insurance provider (if any) in case any airline
bankruptcy protection was part of the package.
G.67
182
https://www.independent.co.uk/travel/news-and-advice/primera-air-collapse-suspended-
passengers-stranded-travel-plans-repatriation-fares-a8564851.html
183
https://twitter.com/michellel/status/1046817354456473601?ref_src=twsrc%5Etfw%7Ctwcamp%5Etwe
etembed%7Ctwterm%5E1046817354456473601&ref_url=https%3A%2F%2Fwww.aviation24.be%2Fforu
ms%2Fviewtopic.php%3Ft%3D64215%26start%3D60
January 2020 | 478
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0505.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.68
As Primera had closed communication channels, the advice for customers booking directly
with the airline was of no use to these passengers. Details were later provided allowing
affected passengers to put in a refund claim as part of the liquidation process. As most
passengers would have been unaware of whether they were flying Primera Air or Primera Air
Nordic, they were advised to lodge claims with both airlines. Ultimately it is highly unlikely that
these claims were successful as they would not have been treated as a priority in the face of
claims from other creditors, such as airports and aircraft leasing companies.
Customers who had booked tickets originating in, or departing from, Denmark were eligible to
use the Danish Travel Guarantee Fund (Rejsegaranti Fonden). The fund assists passengers on
package holidays and those with a flight only ticket. Stranded passengers are provided with
transport home, whilst customers who are yet to fly can claim compensation for their
unusable ticket, minus a service fee of DKK1000 (€134, June 2019).
The Swedish Consumer Agency (Konsument Europa) advised package holiday customers to
engage with their tour operator in the first instance as they are ‘required to rebook or the trip
or refund it’ and that should assistance not be forthcoming passengers were also able to
contact the Legal, Financial and Administrative Services Agency (Kammarkollegiet) for
compensation.
Some customers departing from the United Kingdom, who were flying Primera as part of a
package holiday, would have been protected by ATOL and these passengers were eligible to
contact their travel firm to organise a refund or alternative flights.
Stranded Passengers
G.69
G.70
G.71
G.72
It is unclear how many passengers we immediately affected by the bankruptcy, with news
sources simply stating that “thousands” of passengers were stranded, however it has
been
estimated that approximately 22,000 passengers were stranded based on the capacity
operated by Primera in its final month of operation.
Of these passengers:
•
45% originated in Denmark, of which virtually all would have been covered by the Danish
Travel Guarantee Fund. These passengers would have been provided with a replacement
return flight at the expense of the fund regardless of whether they were travelling as part
of a package or solely with a ticket.
34% were affected on North Atlantic routes from France/UK to Canada/USA routes.
Owing to the fact that Primera was primarily targeting the low-cost, point-to-point
segment of this market, it is likely that most passengers would have been travelling on
flight-only tickets and would have had to have arranged their own travel home.
The remaining 21% would have been stranded away from their homes in Sweden (11%),
Finland (5%), Iceland (5%), Norway and Latvia. It is unknown how many of these
passengers were travelling as part of a package deal, however this may represent a
significant proportion of passengers owing to Primera’s target market in these countries.
G.73
•
•
G.74
The bankruptcy coincided with an off-peak travel period, thus excess capacity was available in
the market to transport stranded passengers. British Airways, Norwegian, Virgin Atlantic, Delta
and Ryanair offered affected passengers rescue fares to allow them to get home. United
airlines later offered rescue fares as well.
January 2020 | 479
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0506.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.75
Virgin offered discounted fares to passengers stranded on either side of the Atlantic, whilst
British Airways offered tickets to stranded passengers wanting to return to London
184
. It is
unclear how much of a discount was offered and many passengers will still have likely paid
substantially more for their rescue ticket than they would have done for their Primera ticket in
the first instance, as the cheapest Primera trans-Atlantic fares were sold for around £250
return, whilst passengers normally expect to pay in the realm of £500 return to fly on the
same route with other airlines.
Norwegian offered passengers a 50% discount on the standard economy fare (excluding taxes)
for travel up until October 14
th
on selected routes
185
.
Ryanair offered a limited number of ‘rescue fares’ to Primera passengers with advance
booking up to March 2019. These tickets were not solely limited to stranded passengers.
Affected Passengers
G.76
G.77
G.78
G.79
The number of forward bookings is unknown but have been estimated to be roughly 142,000
based on forward booking profiles and capacity available.
Flight-only customers, who had booked directly with the airline, were the most affected as
they had no point of contact and a very small chance of receiving a refund. All these
passengers would have had to have purchased new tickets or cancel their trip.
Flight-only customers covered by the Danish Travel Guarantee Fund were able to claim a
refund on their tickets, however the administration fee of DKK1000
186
would have negated
most of the value of forward bookings from Denmark as only short-haul flights were being
operated.
Customers with bookings in the short term will have likely paid more than they would have
done for their original ticket owing to the shorter booking window, however would have
benefitted from the off-peak period not driving fares to peak summer levels.
Customers with bookings in the longer term may have been able to find better-priced
replacement fares, however customers who had obtained low fares on Primera for the
Christmas holidays would likely not have found similar deals when trying to book tickets again
in October.
Customers on package deals originating in Denmark, Sweden and the UK would have been
protected under the Package Travel Directive.
Staff
G.80
G.81
G.82
G.83
G.84
Despite being reassured in their bankruptcy announcement that flights home would be
offered to staff stranded at out-stations, many staff were left to make their own
arrangements. In one instance a member of cabin crew resorted to tweeting other airlines to
organise a transfer home, which was eventually offered by WOWAir.
184
https://www.independent.co.uk/travel/news-and-advice/primera-air-collapse-suspended-
passengers-stranded-travel-plans-repatriation-fares-a8564851.html
185
https://media.uk.norwegian.com/pressreleases/norwegian-offers-repatriation-fares-to-those-
affected-by-primera-bankruptcy-2731659
186
https://www.rejsegarantifonden.dk/english/
- How can the Travel Guarantee Fund assist you in case
of a bankruptcy?
January 2020 | 480
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0507.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Aftermath
G.85
G.86
Primera Travel Group rebranded and now trades as TravelCo Nordic.
Primera was a relatively small player in all of its markets and no airports were severely
affected by the loss of Primera passengers. Billund Airport was the most exposed to Primera,
where it operated 7% of capacity in 2018. However, despite the collapse of Primera, capacity
actually grew by 6% in 2019, mainly driven by Norwegian and Ryanair. Prior to Primera’s
collapse, capacity at Billund had stagnated for the previous two years.
Primera’s low-cost
trans-Atlantic competitor WOWair has also declared bankruptcy,
highlighting the high level of competition and overcapacity on trans-Atlantic
routes. Primera’s
plans to utilise B737MAX from the new bases in Berlin, Brussels, Frankfurt and Madrid in 2019
would have been severely impacted by the grounding of the aircraft type and would have led
to more passenger disruption and compensation claims.
Many passengers had mounted claims against Primera before its bankruptcy owing to its
operation performance over the summer 2018 season. The airline had a habit of cancelling
flights last minute and reassuring customers that they would be reimbursed if they re-booked
themselves, whilst many others claimed under Regulation 261/2004 against the large number
of late and cancelled flights
187.
Most of these claims were not paid before the airline went
bankrupt, leaving many previous customers out of pocket in addition to those with future
tickets.
G.87
G.88
187
https://www.economist.com/gulliver/2018/10/03/primera-air-goes-bankrupt-after-a-catastrophic-
summer
January 2020 | 481
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0508.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Air Berlin
Background
G.89
Air Berlin provides an example of an airline which was able to continue operations in
administration, while the company was restructured and orderly wound down. The approach
applied in the case of Air Berlin removed or reduced detrimental effects of airline insolvency,
such stranded passengers.
Air Berlin was Germany’s second biggest airline
group at the time it went into administration
in August 2017. At the time of its bankruptcy, the group was under co-ownership of Etihad
Airways and consisted of four airlines, as shown in the figure below:
•
•
•
•
German-based Air Berlin PLC & Co. Luftverkehrs AG;
Switzerland-based Belair Airlines AG;
Austria-based NIKI Luftfahrt GmbH and German-based regional carrier LGW; and
Luftfahrtgesellschaft Walter mbH, an airline which had been flying exclusively on behalf of
Air Berlin from 2007 and which eventually became a subsidiary of Air Berlin just two
months before the group’s bankruptcy
G.90
Figure G.9: Structure of Air Berlin Group of Companies 2017
Source: DLR compilation based on information from Air Berlin (2017), Annual Report 2016,
http://www.annualreports.com/HostedData/AnnualReports/PDF/OTC_AIBEF_2016.pdf
G.91
The airline was founded in 1978 as Air Berlin USA and started to operate charters out of West
Berlin to Mediterranean destinations on behalf of tour operators. Following German
reunification and the subsequent ability for German-registered carriers to fly from Berlin, Air
Berlin was restructured as the German company Air Berlin GmbH & Co. Luftverkehrs KG in
1991. Scheduled flights were introduced in 1999 in response to EU market deregulation, thus
January 2020 | 482
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0509.png
Study on the current level of protection of air passenger rights in the EU | Final Report
offering direct bookings which circumvented tour operators. A low-cost
“city-shuttle” concept
was also introduced to offer flights to European capital cities from a number of smaller and
underserved German regional airports.
G.92
Air Berlin grew rapidly in the 2000s with a number of milestones, including
•
•
•
•
•
the part-takeover of Vienna-based NIKI in 2004;
the carrier’s restructuring as Air Berlin PLC (& Co.
Luftverkehrs KG) and an IPO in
2005/2006;
acquisitions of German domestic airline dba in 2006
188
and of medium/long-haul leisure
carriers LTU (Germany) and Belair (Switzerland) in 2007, respectively;
a US$ 5.1bn order of 75 aircraft (2007); and
the start of a strategic partnership with TUI, which included the takeover of TUIFly’s
domestic and Italian/Croatian/Austrian operations and a long-term wet-lease of several of
TUIFly’s B737-700’s (2009).
G.93
The airlines started to increase its losses towards the end of the 2000s, forcing a reduction of
loss-making operations in 2008 in an attempt to increase profitability. In 2011, Air Berlin
announced a major investment of almost 30% of Etihad Airways, along with the introduction
of new routes to Etihad’s Abu Dhabi hub.
189
Etihad furthermore acquired a majority stake in
Air Berlin’s frequent flyer programme Topbunus in December 2012, allegedly in an attempt to
provide the carrier with new cash. Despite the strategic investment of a carrier not part of an
airline alliance (Etihad), Air Berlin completed its Oneworld membership entry in March 2012,
strengthening the carrier’s attractiveness for business and long-haul
passengers. Code-share
operations were agreed with several Oneworld partners, like American Airlines, Iberia, Finnair
and Cathay Pacific. The airline also increased its own long-haul services from Berlin and
Düsseldorf, especially to the US. Despite the actions, Air Berlin’s
losses continued to increase.
In December 2016, Air Berlin and Lufthansa announced a major wet-lease deal, according to
which the airline would withdraw from most non-hub routes and operate 38 aircraft on behalf
of the Lufthansa Group. Air Berlin further announced its intention to sell its subsidiary NIKI to
Etihad.
190
Air Berlin Group employed some 8,500 employees and operated approximately 140 aircraft
flying to 135 destinations at the end of 2016.
191
At the time of bankruptcy, Air Berlin had its
main bases and long-haul hubs at Düsseldorf airport and Berlin-Tegel airport. Air Berlin had
previously operated with hubs at Nuremberg airport and Palma airport (for Spanish-bound
holiday services). In August 2017 when the airline declared bankruptcy, operations to 85
airports under its own code (wet-leases on behalf of Eurowings and destinations with less than
500 passengers per month counted) were run mainly out of Dusseldorf and Berlin.
The airline’s capacity decreased continuously since 2010 where it recorded
peak seat
numbers, with the exception of the growing US market which remained a focus until the
carrier’s bankruptcy, highlighted in the figure below.
G.94
G.95
G.96
188
189
https://www.manager-magazin.de/unternehmen/artikel/a-435546.html
On 19 December 2011, Air Berlin announced that Abu Dhabi based Etihad Airways had invested 73
million EUR to increased its share from 2.99% to 29.1%.
190
https://www.fvw.de/international/travel-news/air-berlin-etihad-pumps-in-300m-with-niki-
takeover-166333
191
http://www.annualreports.com/HostedData/AnnualReports/PDF/OTC_AIBEF_2016.pdf
January 2020 | 483
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0510.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure G.10: Air Berlin departing seats (2009-2017)
Source: OAG 2017 includes NIKI continuation. *DACH = Germany, Switzerland and Austria. Domestics reduced to
one-way.
G.97
Air Berlin’s total passenger numbers and load factor over the period from 2006 to 2017 are
shown in the figure below. Passenger numbers declined from 2011, reflecting the decrease in
capacity described above. The load factor was significantly improved from the early 2010s
onwards when the airlines transformed into a network carrier.
Figure G.11: Air Berlin passengers and load factor (2006-2017)
Source: Air Berlin. 2017* - to July 2017
G.98
The key (summer) markets served by Air Berlin in August 2017 were Germany, Spain, Austria,
Italy, Greece, the U.S. and Switzerland, as highlighted in the figure below which shows Air
Berlin’s departing passengers by country.
January 2020 | 484
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0511.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Figure G.12: Air Berlin departing passengers by country (Aug 2017)
Source: Sabre MI / DLR.
Bankruptcy process
G.99
Etihad declared the discontinuation of financial support of Air Berlin on 11
th
August 2017,
which contradicted an earlier statement from April 2018 in which it had promised to “continue
to provide funding for the next 18 months”. Subsequently, Air Berlin declared insolvency on
15
th
August 2017. However, unlike many other insolvencies, operations continued until 27
th
October 2017 when the last Air Berlin flight landed.
The continuation of operations despite the declaration of insolvency was made possible
through a bridge loan provided through a credit facility from the German public credit
institution Kreditanstalt für Wiederaufbau (KfW). The €150 million loan was provided to
ensure operations for around three months, thus allowing for time to sell (parts of) Air Berlin
to new investors. The airline was still able to sell tickets to consumers during the
administration period, however the money raised from these sales was protected in an escrow
account until the service was delivered.
Air Berlin issued a statement to confirm that as a result of the loan
•
•
•
G.102
all Air Berlin and NIKI flights would continue to operate;
the flight schedules would remain valid; and
all flights would continue to be bookable.
G.100
G.101
Interested parties were invited to submit proposals for the takeover of Air Berlin assets until
15
th
September 2017. Lufthansa Group (LGH), which had been in negotiations with Air Berlin
for months, announced it would bid for (parts of) the airline, alongside other carriers.
192
The
competitive implications of a possible (partial) takeover of Air Berlin by LHG were discussed
extensively with some, including the former German Transport Minister Dobrindt arguing that
192
http://www.bmwi.de/Redaktion/EN/Pressemitteilungen/2017/20170815-gemeinsame-
pressemitteilung-zu-air-berlin.html
January 2020 | 485
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0512.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Germany needed a “national champion” in international aviation
193
, while the German
Monopoly Commission feared a Lufthansa monopoly
194
.
G.103
On 9
th
October 2017, Air Berlin announced it would cease all remaining operations from 28
October 2017 under its own AB flight numbers due to its negative financial outlook. However,
its subsidiary NIKI and Air Berlin’s wet-lease
operations on behalf of Lufthansa Group would
continue to operate after 27
th
October. On 12
th
October 2017, Lufthansa agreed to take over
Air Berlin’s subsidiaries NIKI Luftfahrt, LGW, and 20 aircraft for €210 million.
195
A few days later
on 27
th
October 2017, easyJet announced that it would offer jobs to 1,000 Air Berlin
employees and
lease 25 Airbus A320 aircraft for flights from Berlin Tegel for €40 million
196
.
The European Commission approved the offer of easyJet to take over 25 aircrafts but declared
its objections for a take-over of NIKI by Lufthansa on 12
th
December 2017
197
. The decision
resulted in the immediate discontinuation of flights by NIKI on 13
th
December 2017. The
Lufthansa take-over of Luftfahrtgesellschaft Walter (a turboprop operator) was approved
subject to certain conditions.
NIKI was sold to Lauda in early 2018, thus beating out a bit from IAG. Since then, Lauda has
become Laudamotion which is now part of Ryanair
198
. On 1
st
April 2019, Lufthansa sold
Luftfahrtgesellschaft Walter to Zeitfracht, but LGW continues to fly as wet-lease operator for
Lufthansa.
Impact on passengers
G.106
As a result of the government’s bridge loan which prevented an immediate stop of operations,
passengers were not stranded unlike observed for other insolvency cases. Between the end of
September and 15
th
October 2017, Air Berlin gradually ceased its long-haul operations, as well
as a number of short and medium haul routes. Air Berlin's final revenue flight under its own
code was operated from Munich to Berlin on 27
th
October 2017.
The impact of the insolvency on passengers who bought tickets from Air Berlin Group is
summarized in the table below.
Table G.2: Impact of insolvency on Air Berlin passengers
G.104
G.105
G.107
Original booking and payment
Travel
Flight Status
According to plan
Before
insolvency
Delay or cancellation
–
entitlement for refund
and/or compensation
Before insolvency (14
th
August 2017)
No issues
No refunds from insolvency
onward. Passengers may
file for insolvency claims.
Between insolvency and
end of operations
193
https://www.reuters.com/article/us-air-berlin-lufthansa-talks/germanys-lufthansa-gets-first-say-
on-air-berlin-asset-sale-union-idUSKCN1AX0EZ
194
http://www.faz.net/aktuell/wirtschaft/unternehmen/chef-der-monopolkommission-es-droht-ein-
monopol-der-lufthansa-15180765.html
195
http://europa.eu/rapid/press-release_IP-17-5244_en.htm
196
https://www.zeit.de/wirtschaft/unternehmen/2017-10/air-berlin-letzter-flug-insolvenz-joachim-
hunold
197
http://europa.eu/rapid/press-release_IP-17-5244_en.htm
198
https://www.reuters.com/article/us-ryanair-laudamotion-approval/eu-unconditionally-approves-
ryanair-purchase-of-laudamotion-idUSKBN1K22UF
January 2020 | 486
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0513.png
Study on the current level of protection of air passenger rights in the EU | Final Report
according to
Regulation 261/2004
No 261/2004
compensation payments
from insolvency onwards.
Passengers may file for
insolvency claims.
No issues as result of
bridge loan.
No refunds but passengers
may file for insolvency
claims.
If booked as package tour:
re-booking/refund offered
by tour operator. No
protection by 261/2004)
If paid by credit card:
intermediate chargeback of
flight price possible;
however, liquidator might
re-claim money (no
protection by 261/2004)
No evidence for any
compensation payments
under Regulation
261/2004. Passengers had
to file an insolvency claim.
No refunds and 261/2004
compensation payments.
Passengers may file
insolvency claim.
No issues as result of
bridge loan.
Refund by liquidator. No
evidence for any
compensation payments
under Regulation
261/2004. Passengers had
to file an insolvency claim.
According to plan
Between
insolvency
(15
th
Aug) and
end of
operations
(28
th
Oct)
Delay or cancellation
–
entitlement for refund
and/or compensation
according to
Regulation 261/2004
After end of
operations
(28
th
Oct)
Cancellation
Refund by liquidator. No
evidence for any
compensation payments
under Regulation
261/2004. Passengers had
to file an insolvency claim.
G.108
The bridge loan that was provided by the German government allowed for a limited
continuation of Air Berlin operations until 27
th
October 2017. Tickets which were booked
before the filing for insolvency were honoured, except for mainly long-haul routes that were
discontinued in the intermediate period from late September onwards.
New bookings made after the announcement of insolvency were either honoured or refunded
(where flights were cancelled). The sale of tickets for dates after 28
th
October were stopped on
9
th
October, which is when the end of operations was announced.
When Air Berlin filed for insolvency on 15
th
August 2017, all claims from transactions that were
concluded before the insolvency date became part of the insolvency assets. This included any
compensation and refund claims. Passengers which had unpaid compensation claims from
delayed or cancelled flights before 15
th
August 2017 had to re-file their claims with the
insolvency administrator. As the assets available for distribution among the creditors cover
only a small fraction of the amounts owed to creditors, it is expected that passengers will not
receive compensation payments or refunds.
Refunds in case of cancelled flights were guaranteed for passengers who had booked tickets
after 15
th
August 2017 under the bridge loan granted by the German federal government. No
official data is available on how many of the passenger compensation claims for a disruption
(long delays, cancellation or denied boarding) after the insolvency (15
th
August) were
G.109
G.110
G.111
January 2020 | 487
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0514.png
Study on the current level of protection of air passenger rights in the EU | Final Report
compensated by Air Berlin. Because compensation payments were likely a lesser priority than
preserving cash and not key in maintaining the airline’s
operation, it is assumed that these
payments are probably still not settled and it is doubtful if they will ever be. It is common
practice by airlines to withhold compensation payments for as long as possible in order to
preserve cash. This assumption is supported by the German insolvency law, which does not
allow the administrator to make any payments which are not directly necessary to keep up the
company’s operations.
G.112
Additionally, it was extremely difficult for passengers to reach Air Berlin customer service as
staff was allegedly reduced while it would be expected that the number of claims was
increasing at the same time. There was also a potential backlog of claims stemming from
increased levels of disruption before the insolvency.
The German claim agency Flightright observed massive service disruptions for Air Berlin in the
period after the insolvency. Contrary to initial announcements made by the airline, no
compensation payments were made. Flightright filed around 13,300 unpaid cases as
insolvency claims, of which 7,440 referred to flight dates after the insolvency.
In the process of the insolvency, an agreement between Flightright and the insolvency
administrator was reached. Flightright was permitted to submit a collective claim for
compensation payments of all passengers that had mandated Flightright to collect the claims.
However, as described above, the quota of assets available for distribution compared to the
number of claims will be negligible and almost all of the claimed compensation amounts will
be lost for the passengers.
199
Stranded passengers
G.115
As a result of the continuation of operations and the very controlled winding down of services
facilitated by the loan, the number of stranded Air Berlin passengers was relatively small. The
media reported only very few cases. For instance, on 19
th
October, the Icelandic airport
operator denied Air Berlin to depart from Reykjavik on the grounds of unpaid airport charges.
This case, however, was resolved within several hours.
However, the insolvency
of NIKI, Air Berlin’s Austrian subsidiary on 13
th
December 2017
affected up to 40,000 passengers, which were on their return trips between the insolvency
filing and the end of December, according to media reports. The total included an estimated
25,000 package tour travellers, for which the package tour operators had to find alternative
means of travel and 15,000 passengers, which had directly booked their flights with NIKI.
200
While for the latter, no obligation for care, assistance and re-accommodation to other airlines
existed, airlines offered various degrees of assistance. It is reported that Condor offered free
return transport subject to seat availability
201
and TUIfly was reported to have offered tickets
at 50% discount. The Lufthansa Group published a rescue fare plan on 21
st
October 2017,
which stated that passengers who had booked international travel on Air Berlin before 15
th
G.113
G.114
G.116
G.117
199
https://www.flightright.de/blog/air-berlin-niki-insolvenz
200
https://www.fvw.de/international/travel-news/airline-insolvency-german-airlines-fly-home-
stranded-niki-passengers-181822
201
https://www.ostsee-zeitung.de/Nachrichten/Wirtschaft/Tuifly-bringt-mit-Sonderfluegen-Niki-
Kunden-zurueck
January 2020 | 488
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0515.png
Study on the current level of protection of air passenger rights in the EU | Final Report
August 2017 with a return flight taking place no later than 15
th
November would receive 50%
discount on new bookings with Lufthansa Group airlines.
202
G.118
In addition to the roughly 40,000 stranded NIKI passengers in the immediate aftermath of the
insolvency in December 2017, more than 410,000 passengers held tickets for travel on NIKI for
2018. Approximately 210,000 tickets of these where booked as part of package tours, for
which the tour operators had to find alternative ways of travel. Approximately 200,000 tickets
were booked directly. However, for all tickets booked after 15
th
August 2017, the guarantee
for a refund applied; hence the actual number of passengers not receiving a refund (booking
before 15
th
August 2017 for travel after 14
th
December 2017) can be considered as relatively
small.
203
Affected passengers
G.119
The following figures were reported to be passengers affected by the Air Berlin insolvency:
•
In September 2017, Air Berlin announced to discontinue its long-haul operations from end
of September. By that time, approximately 100,000 passengers held tickets for long-haul
flights, which were purchased
before
15
th
August 2017 for flights after September 2017.
204
Around 10
th
October 2017, Air Berlin announced that all flight operations would be
discontinued by 28
th
October 2017. This allegedly affected a further 100,000 passengers.
Approximately 90,000 tickets were purchased before the insolvency date, with passengers
not being able to claim for a refund.
Around 10,000 passengers which had purchased their tickets
after
15
th
August 2017 for
flights
after
28
th
October 2017, a full refund was offered, covered by the bridge loan by
the federal government. However, the passengers affected had to find alternative means
of travel, which were likely to be more expensive.
205
•
•
•
G.120
The insolvency of NIKI resulted in an immediate cease of operations and therefore left more
passengers stranded than in the case of Air Berlin. However, passengers travelling on behalf of
the Lufthansa Group (i.e. Eurowings) on any of Air Berlin’s wet-lease
services were not at risk
of the insolvency. They might have occurred some delays/cancellations, but as they had
initially booked their journey and purchased their ticket with Eurowings, compensation or re-
routing was guaranteed by Eurowings at all times.
Under German and Austrian consumer protection law, only passengers who had booked air
travel as part of an inclusive tour were protected. The inclusive tour operators were
responsible to provide passengers with air transport according to the contract. Passengers
which had booked their air tickets as flight-only bookings either directly with Air Berlin, with a
travel agent or any other distribution channel were not protected. However, in the case of the
Air Berlin insolvency, several aspects softened the impacts for the flight-only passengers:
•
The bridge loan provided by the federal government allowed a continuation of most flight
operations after the insolvency date; and
G.121
202
https://www.spiegel.de/reise/aktuell/lufthansa-bietet-gestrandeten-air-berlin-kunden-
verguenstigte-tickets-an-a-1174053.html
203
https://kurier.at/wirtschaft/niki-pleite-40-000-passagiere-gestrandet/302.023.185
204
https://www.welt.de/wirtschaft/article169187083/Mehr-als-100-000-Air-Berlin-Tickets-
verfallen.html
205
https://rp-online.de/wirtschaft/unternehmen/abwicklung-von-air-berlin-100000-weitere-flugtickets-
verfallen_aid-17703809
January 2020 | 489
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0516.png
Study on the current level of protection of air passenger rights in the EU | Final Report
•
G.122
The bridge loan provided by the federal government guaranteed full refund in case of
cancellation for flights booked after 15
th
August 2017.
Air Berlin was not based in the UK and thus was not part of the ATOL protection scheme. Only
travellers having booked a package tour from an UK-based operator which included an Air
Berlin flight segment would have been protected by ATOL. As Air Berlin was not intensively
operating in the UK, the number of passengers that would fall in this category was almost non-
existent.
For flight-only bookings, where the payment was made with credit card, the protection that is
available in the UK according to Section 75 of the Consumer Credit Act of 1974 does not exist
in Germany. Whereas in the UK purchases over £100 are protected by the credit card
providers, passengers who had purchased their Air Berlin tickets with German credit cards are
reported to have filed claims for chargeback with their credit card companies. Typically, credit
card companies allow a chargeback in case of insolvency, as shown in the case of the travel
company insolvency Lowcostholidays/hoteling.com in 2016. In case a provider becomes
insolvent, a chargeback will generally be granted within the first 8 weeks after payment.
Protection via the credit card provider could be considered as a kind of private insolvency
insurance, but this was shown not to be successful in all cases. In the aftermath of the Air
Berlin insolvency, consumers who had successfully filed a chargeback claim for Air Berlin
tickets booked via (online) travel agents were informed by their respective travel agents that
the chargeback was done unlawfully. In such cases, the intermediary who collected the air fare
from the consumers had already transferred the money to Air Berlin. Hence, the intermediary
is directly affected by the chargeback and the non-fulfilment of the flight. German media
reports that there are no precedents to this case.
206
In addition, reports have emerged on social media platforms such as Facebook which suggest
that the insolvency administrator has objected chargebacks for flight-only bookings with Air
Berlin in summer 2019. This corresponds with the ruling of the Federal Court of Justice (BGH)
stating that the obligation to pay for a flight ticket well in advance of making the trip emerges
at the time of booking, irrespectively if the service will actually happen or not and chargeback
thus cannot be guaranteed.
207
Aftermath
G.123
G.124
G.125
G.126
In the immediate aftermath of the insolvency filing, Air Berlin stated that flight operations
would continue as planned. However, it is worth noting that flight operations were already
disrupted to various degrees before the insolvency filing which affected a substantial number
of passengers. The media cited that lessors were demanding their aircrafts back. Air Berlin
started to scale down operations, often with several days of notice to passengers, which then
had the opportunity to find alternative means of travel. This, for instance, also affected
passengers on domestic routes, which likely switched to train or car travel as a result.
The news of the bridge loan which secured operations for at least three months was
immediately communicated to ensure passengers that they were not affected by the
insolvency in the short-term. The news was also widely covered in the Germany media. The
insolvency administrator Flöther and Wissing set up a dedicated website (https://airberlin-
206
207
G.127
https://www.finanztip.de/blog/air-berlin-rueckbuchung-klappt-dann-droht-der-reisevermittler/
https://www.lto.de/recht/nachrichten/n/bgh-urteil-x-zr-97-14-fluggastrechte-ticket-zahlung-
faellig-vertragsabschluss-sofort/
January 2020 | 490
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0517.png
Study on the current level of protection of air passenger rights in the EU | Final Report
inso.de/start)
with information on the process for refunds and insolvency claims in the
aftermath.
G.128
The bridge loan of the federal government resulted in an intense public discussion. While on
the one hand, it allowed Air Berlin to continue operations after filing for insolvency, it was
heavily criticized on the basis of regulatory policy issues. Several commentators claimed that
the federal government had only granted the loan to avoid thousands of stranded passengers
right ahead of the general election on 24
th
September 2017. Ultimately around half of the loan
was repaid. In another recent insolvency of German airline Germania (34 aircraft), no state
intervention occurred resulting in approximately 20,000 stranded passengers and 260,000
invalid tickets.
The political support offered to Lufthansa was furthermore criticised, as both conservative
(transport minister Dobrindt) and social democrat (minister for the economy Zypries)
politicians supported the plan of creating/supporting a “national champion”.
Air Berlin’s key assets
included airport slots, aircraft and crews. However, the aircraft were
actually not part of the insolvency assets, as Air Berlin had sold almost all aircraft to lessors
over the past years to raise cash for on-going operations. There was broad consensus between
the federal government, the slot coordinator, competitors, lessors and banks that slots,
aircraft and crews could be transferred to new operators as a package.
•
•
•
G.131
For former competitors like easyJet and Lufthansa therefore had the advantage to
immediately capture market shares without delay.
For passengers, it resulted in a return of substantial seat capacity to the market
immediately and decreasing fare levels.
For employees, it resulted in immediate continuation of employment, although in many
cases at worsened conditions.
G.129
G.130
The development of departing seats in the aftermath of the Air Berlin insolvency at Düsseldorf
airport and Berlin Tegel airport is shown in the figure below.
Figure G.13: Departing seats at Düsseldorf airport (left) and Berlin Tegel airport (right) (2009-2019)
Sources: OAG, Steer Analysis
G.132
The insolvency procedure deviated from the expected process through a re-distribution of
slots in the regular EU/IATA procedure. Ryanair voiced the only substantial objection against
the re-distribution of slots as part of the package deals, but the complaint was neither
accepted by the European Commission nor the German cartel office.
208
208
https://de.reuters.com/article/ryanair-slots-idDEKBN1E12LM
January 2020 | 491
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0518.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.133
At the time of the insolvency, Air Berlin operated around 100 aircraft, with roughly 38 already
leased out under wet lease conditions to the Lufthansa Group since December 2016 and two
leased out to Alitalia. At the end of October 2017, easyJet announced the intention to take
over 25 Air Berlin aircraft including slots and crews for establishing a substantial operation at
Berlin Tegel airport. In December 2017, the European Commission approved this transfer of
assets. EasyJet subsequently became the largest carrier by seats offered at Tegel in 2018 and
reached a market share of approximately one third.
The Lufthansa Group took over a total of 77 aircraft formerly operated by Air Berlin and NIKI.
The integration was completed by August 2018. 38 aircraft were already wet-leased from Air
Berlin since December 2016. This deal was approved by the German cartel office in January
2017. It is reported that in the immediate aftermath of Air Berlin’s
insolvency, Lufthansa
Group approached lessors with the intention to buy up to 81 aircraft formerly operated by Air
Berlin.
209
The governing board of LHG had approved to spend one billion Euros on aircrafts
that were owned by lessors but operated by Air Berlin in September 2017 already.
210
The move happened without any intervention by competition authorities. The decision by
Lufthansa’s management put the company in the pole position for re-shaping
the
German/Austrian air transport market in the aftermath of Air
Berlin’s insolvency. With the
finalisation of the aircraft purchase, any future decision on Air Berlin’s fate was only possible
with the consent of LHG’s management. The European Commission had initially ordered
Lufthansa to lease out former NIKI/Air Berlin aircraft to Laudamotion
211
, but this contract
finished at the end of 2018.
In October 2018, the German cartel office concluded, that no formal investigation against the
Lufthansa Group would be raised for abuse of significant market power: in the immediate
aftermath of the insolvency, when Lufthansa Group found itself in a monopoly position on
various high-demand routes, its fares rose steeply (25-30%)
212
compared to previous
circumstances, bearing no relationship to its true costs. However as soon as competitors
(mostly easyJet, but also Ryanair and others) entered the market, fare levels reduced quickly
to pre-insolvency levels.
213
The case of Air Berlin’s Austrian subsidiary proved to be more complicated. In October 2017,
Lufthansa announced the intent to take over NIKI and the German turboprop operator LGW.
Lufthansa allegedly gave NIKI a bridge loan to keep the airline operating. However, the
European Commission objected the takeover in December, which led to an immediate
discontinuation of Lufthansa’s
support and, in consequence the discontinuation of HG-coded
flights on 13
th
December 2017. Between December 2017 and January 2018, IAG tried to take
over NIKI’s assets in order to integrate them into Vueling but no agreement was reached.
G.134
G.135
G.136
G.137
209
https://www.handelsblatt.com/today/companies/airline-industry-why-losing-the-air-berlin-deal-
makes-lufthansa-a-winner/23573426.html?ticket=ST-4402378-DSfRqpi2gQ371575hjJc-ap5
210
http://www.airliners.de/lufthansa-81-air-berlin-flugzeuge/42453
211
https://www.msn.com/de-de/finanzen/top-stories/streit-der-airlines-%E2%80%9Edie-lufthansa-
wollte-laudamotion-vernichten%E2%80%9C-%E2%80%93-niki-lauda-kritisiert-carsten-spohr/ar-BBRtL9O
212
https://www.bundeskartellamt.de/SharedDocs/Meldung/DE/Pressemitteilungen/2018/29_05_2018_
Lufthansa.html
213
https://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Diskussions_Hintergrundpapier/AK_Kar
tellrecht_2018_Hossenfelder.pdf?__blob=publicationFile&v=4
January 2020 | 492
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0519.png
Study on the current level of protection of air passenger rights in the EU | Final Report
G.138
At the end of January
2018, the airline’s former owner and founder Niki Lauda successfully bid
for the assets of NIKI (slots and nine of 21 aircraft). The assets were integrated into Niki
Lauda’s business jet operation called Laudamotion. In March 2018, Ryanair took over 24.9%
of
shares in Laudamotion, which was subsequently increased to 75% and finally a full takeover
took place at the end of 2018.
January 2020 | 493
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0520.png
Study on the current level of protection of air passenger rights in the EU | Final Report
H List of insolvent airlines
Table H.1: Airlines ceasing operations (2011-October 2019) (ranked according to capacity)
Airline Name
Air Berlin
Thomas Cook Airlines UK
Monarch Airlines
Spaniard
MALEV Hungarian
Airlines
NIKI
Wind Jet
Germania
Aigle Azur
Cimber Sterling
Primera Air
WOW Air
Adria Airways
Cobalt Aero
Nextjet
BMI Regional
Skyways
Estonian Air
Small Planet Airlines
GmbH
XL Airways France
Cyprus Airways
Islas Airways
ItAli Airlines
Athens Airways
Intersky
OLT Express Germany
GmbH
Air Mediterranee
Helitt Lineas Aereas
Hamburg International
Primera Air Nordic
Small Planet Airlines
Belle Air Europe
Sky Work Airlines
Hello
Air Lituanica
Livingston
Cirrus Airlines
State
DE
UK
UK
ES
HU
AT
IT
DE
FR
DK
DK
IS
SI
CY
SE
UK
SE
EE
DE
FR
CY
ES
IT
GR
AT
DE
FR
ES
DE
LV
LT
IT
CH
CH
LT
IT
DE
Date of
ceasing
operations
2017
2019
2017
2012
2012
2018
2012
2019
2019
2012
2018
2019
2019
2018
2018
2019
2012
2015
2018
2019
2015
2012
2012
2011
2015
2013
2016
2013
2011
2018
2018
2014
2018
2013
2015
2011
2012
Type of operation
Scheduled mixed
Charter
Charter/Low Cost
Scheduled short-haul only
Scheduled short-haul only
Low cost
Low cost
Charter
Scheduled mixed
Scheduled short-haul only
Low cost
Low cost
Scheduled short-haul only
Low cost
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Charter
Low cost
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Charter
Charter
Charter
Low cost
Charter
Low cost
Scheduled short-haul only
Charter
Scheduled short-haul only
Charter
Scheduled short-haul only
Weekly
seats
(penultimate
month)
284,672
276,582
195,724
152,634
80,482
76,494
71,656
66,219
51,447
48,650
40,101
38,894
34,732
25,369
20,075
19,558
18,839
18,116
16,698
16,572
15,116
14,363
12,877
11,841
11,688
11,220
11,167
10,448
10,416
9,200
8,308
7,089
6,808
6,477
6,365
6,162
5,909
January 2020 | 494
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0521.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline Name
Astraeus
VLM Airlines D.D.
VLM Airlines N.V.
Air Finland
Limitless Airways
City Airline
FlyViking
Eagles Airlines
SkyGreece Airlines
Small Planet Airlines
Viking Hellas Airlines
Amsterdam Airlines
Livingston Air
Danube Wings
Czech Connect Airlines
Hellenic Imperial Airways
Fly KISS
Atlas Atlantique Airlines
Citywing
Freedom Airways
European Coastal
Airlines LTD
Air Alps Aviation
Darwin Airline
Robin Hood Aviation
Belair Airlines
Viking Airlines
Tor Air AB
Sky Wings Airlines
Avies Air Company
Hamburg Airways
Romavia
Sweden Airways AB
Surf Air Europe
Comtel Air
4YOU Airlines
Air Poland
Air Via
Dubrovnik Airline
FLM Aviation
Fly Romania
FlyNonstop
Jetalliance
Krohn Air
Linxair
Medallion Air
Mint Airways
Orbest Orizonia Airlines
Pyrenair
Ryjet
State
UK
SI
BE
FI
HR
SE
NO
IT
GR
PL
GR
NL
IT
SK
CZ
GR
SI
FR
UK
AT
HR
AT
CH
AT
CH
SE
SE
GR
EE
DE
RO
SE
UK
AT
PL
PL
BG
HR
DE
RO
NO
AT
NO
SI
RO
ES
ES
ES
ES
Date of
ceasing
operations
2012
2018
2016
2012
2016
2012
2018
2011
2015
2018
2011
2011
2014
2014
2012
2011
2017
2017
2017
2012
2016
2012
2017
2011
2017
2011
2012
2013
2013
2014
2011
2012
2018
2011
2014
2012
2016
2011
2013
2014
2013
2013
2014
2014
2013
2012
2013
2011
2012
Type of operation
Charter
Scheduled short-haul only
Scheduled short-haul only
Charter
Charter
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Charter
Charter
Charter
Charter
Charter
Charter
Scheduled short-haul only
Charter
Scheduled short-haul only
Charter
Scheduled short-haul only
Charter
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Scheduled short-haul only
Charter
Charter
Charter
Scheduled short-haul only
Charter
Charter
Charter
Charter
Charter
Charter
Charter
Charter
Charter
Charter
Low cost
Scheduled short-haul only
Charter
Scheduled short-haul only
Charter
Charter
Charter
Charter
Charter
Charter
Weekly
seats
(penultimate
month)
5,892
5,642
5,608
5,256
4,915
4,523
4,446
3,831
3,768
3,738
3,046
2,873
2,811
2,658
2,515
2,186
2,148
2,127
2,070
1,638
1,620
1,545
1,500
1,097
1,027
969
966
793
582
366
313
72
15
2,781
4,171
4,171
2,781
2,781
6,952
10,240
3,400
19,466
3,142
11,124
5,562
2,781
12,514
5,562
2,781
January 2020 | 495
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0522.png
Study on the current level of protection of air passenger rights in the EU | Final Report
Airline Name
XL Airways Germany
State
DE
Date of
ceasing
operations
2013
Type of operation
Charter
Weekly
seats
(penultimate
month)
6,952
Source: Steer analysis, OAG, industry press, media reports, stakeholder consultation. Note: For the purposes of
modelling Monarch has been treated as a hybrid low-cost/charter carrier to best reflect the market it catered for.
Monarch was an established charter carrier but it moved towards a low-cost strategy in its last years of operation.
January 2020 | 496
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0523.png
Control Information
Prepared by
Steer
28-32 Upper Ground
London SE1 9PD
+44 20 7910 5000
www.steergroup.com
Steer project/proposal number
23366401
Author/originator
Stefan Kouris
Prepared for
Directorate-General for Mobility and Transport, European
Commission
1049 Brussels
Belgium
Client contract/project number
MOVE/B5/2018 - 541
Reviewer/approver
Clémence Routaboul
Stephen Wainwright
Distribution
Client:
Steer:
Other contributors
Mark Scott, Kristin Eichwede, Rob Quincey, Krishini Patel, Mael
Kotto Ekambi, Victor Ravelli
Version control/issue number
1.0
2.0
Date
07 January 2020
21 January 2020
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0524.png
steergroup.com
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0525.png
GETTING IN TOUCH WITH THE EU
In person
All over the European Union there are hundreds of Europe Direct information
centres. You can find the address of the centre nearest you at:
https://europa.eu/european-union/contact_en
On the phone or by email
Europe Direct is a service that answers your questions about the European
Union. You can contact this service:
–
by freephone: 00 800 6 7 8 9 10 11 (certain operators may charge for these
calls),
–
at the following standard number: +32 22999696, or
–
by email via: https://europa.eu/european-union/contact_en
FINDING INFORMATION ABOUT THE EU
Online
Information about the European Union in all the official languages of the EU is
available on the Europa website at:
https://europa.eu/european-
union/index_en
EU publications
You can download or order free and priced EU publications from:
https://publications.europa.eu/en/publications. Multiple copies of free
publications may be obtained by contacting Europe Direct or your local
information centre (see
https://europa.eu/european-union/contact_en
).
EU law and related documents
For access to legal information from the EU, including all EU law since 1952 in
all the official language versions, go to EUR-Lex at:
http://eur-
lex.europa.eu
Open data from the EU
The EU Open Data Portal (
http://data.europa.eu/euodp/en
) provides
access to datasets from the EU. Data can be downloaded and reused for free,
for both commercial and non-commercial purposes.
 kom (2013) 0130 - Endeligt svar på spørgsmål 3: MFU spm. om, hvor mange danskere, der forventes at miste retten til kompensation ved ændring af timegrænsen for kompensation
3031374_0526.png
MI-04-19-779-EN-N
ISBN: 978-92-76-14244-7
doi:
10.2832/529370