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Reforming the Long Delay Compensation in EU 261/2004 from a Non-EU viewpoint

Long delays are equally burdensome for air carriers and passengers. Whether caused by the airline or not, these delays, result in passengers losing valuable time and airlines incurring substantial expenses on compensation. STEER Report (Study on the current level of protection of air passenger rights in the EU of January 2020) shows that in average %1 of the all flights between 2011-2018  in, from and to EU+3 (EU(28)+ Iceland, Norway and Switzerland) are delayed at least by over 2 hours. Within the same time period, the report indicates that Non-EU+3 carriers delayed approximately 2.2% of all flights that arrived at EU+3 airports by at least 2 hours or more.

 

EUROCONTROL CODA (Central Office for Delay Analysis) categorizes delays into various key groups, including reactionary delays (also referred to as knock-on delays), delays induced by airlines, ATFM (Air Traffic Flow Management) delays, weather-related delays, and other types of delays Logically reactionary delays (a delay connected to an earlier delay event in the earlier flight) and airline delays are predominantly attributable to the airline and ATFM delays are attributed to airport and en route facilities.

 

The EU seeks to strike a balance between protecting consumers with the support of case law from the ECJ (European Court of Justice) and promoting liberalization of the market. This approach has faced criticism from organizations advocating for passenger rights as well as regional and international associations of air transporters, including IATA (International Air Transport Association). This year, IATA requested a reconsideration of EU261/2004 (Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights). It was pointed out by IATA that the code's scope underwent substantial alterations due to ECJ rulings, moving away from the lawmaker's original intent. Furthermore, IATA mentioned that the code lacks balance among the industry's participants. Other countries including Canada, the United States, Australia, as well as countries in Latin America and the Middle East will be infected if the EU261 remains the same, it has been suggested.

 

ERA (European Region Airlines Association) raises similar issues in their published study, which seeks to supplement the STEER Report. EU 261 (amended with ECJ rulings), according to the ERA study, is viewed as anticompetitive and is criticized for undermining the airline's defense of extraordinary circumstances. The study also concerns the immense financial burden placed on regional carriers as a result of EU 261 which adversely impacts their financial fitness. This burden is so significant that smaller operators may be compelled to cease operations and eliminate certain services and routes.

 

AIRE (Airlines International Representation in Europe) is calling on the European Commission to promptly review the Eu 261 and emphasizes that the code was not initially designed to provide compensation for flight delays. Criticism is directed towards the delay in amending the regulation, despite the EU Parliament's approval of the proposal to revise passenger rights rules.  AIRE stated that this led to a state of confusion in the law regarding the notion of extraordinary circumstances, led to an increase in the number of claim farmers making claims, and caused the loss of billions of Euros due to illegitimate claims.

 

Private operators that are not owned by the state or not subsidized by the government are especially concerned about the economic impact of EU 261 and the inequity in reimbursement for extended delays. The concerns of non-EU airlines are also expressed and similar to those of the smaller and non-state owned or government subsidized private operators. In its efforts to renovate EU 261 and achieve a harmonious relationship between passengers and carriers, the EU must keep in mind the following issues regarding the long delay compensation which are voiced in a consistent and uniform manner by both EU and non-EU air carriers, including legacy, low cost, holiday charter, and regional operators:


  • Immediate adoption is necessary for the new tiers pertaining to long delays (2-5-9 hours) as outlined in the Amendment Proposal of 2013, written in Article 6.

  • A wider catalog for extraordinary circumstances and acknowledgement of knock-on effect of extraordinary circumstances for subsequent flights is necessary.

  • Long delays must be completely excused for reasons related to safety.

  • A cap for indemnity limited to the proportion of the airfare that the operator bears is necessary.

 

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