UK: Air Passenger Rights In The EU: Denied Boarding And Other Recent Developments

The new denied boarding regulation came into force on 17 February 2005 to much fanfare and a welter of media reports – many of them, unfortunately for the airlines, not entirely accurate. Depending on the particular circumstances, the Regulation requires carriers to provide to affected passengers a combination of compensation, assistance, refunds and/or re-routing to their final destination. The Regulation is in force in all member states across the EU, although many have yet to introduce any enforcement legislation. At the time of publication, the UK’s draft statutory instrument, which creates criminal offences for carriers who fail to comply with the new Regulation, is undergoing some late amendments and is expected to come into force during the next month or so.

In the meantime, one of the tasks for carriers – apart from attempting to apply the many ambiguities in the Regulation in a practical setting – is to ensure that they have available the detailed notices, required by the Regulation, explaining to affected passengers what rights they have.

The legal challenge to the Regulation is still live and is expected to be heard by the European Court of Justice later this year. It is therefore unlikely that there will be any decision on the continuing validity of all provisions of this legislation much before the end of the year. In the meantime, carriers must continue to comply with its provisions.

Airline passenger rights continue to occupy the thoughts of the EU and the issue of passengers with reduced mobility (generally referred to as PRMs) has been high on the EU’s list for some years. This subject already features in airline and airport voluntary codes but the EU now proposes to legislate on the subject.

There is general agreement from both airlines and airports that passengers should not be refused access to air travel on grounds of reduced mobility and that such passengers should not be charged for any assistance needed to enable them to use air transport. On the other hand, airlines have understandable concerns that they should continue to be allowed to refuse carriage for reasons of safety, for example if carriage of any passenger or passengers would jeopardise the safe and swift evacuation of an aircraft. Where there has been no real consensus are the questions of whether airports or, alternatively, airlines should be responsible for providing the necessary assistance and which of those should pay for it. The draft regulation put forward by the EU in February goes some way to providing answers but we suspect that the question of who pays will continue to be a bone of contention.

The main features of the draft regulation are as follows:

• A prohibition on airlines refusing carriage to PRMs except on grounds of safety.
• The airline to be entitled for safety reasons to require that a PRM is accompanied (by a paying companion).
• A package of assistance to be given by the airport managing body so that the PRM can take the flight, including help in getting to the check-in desk, getting to gate and boarding the aircraft, storing and retrieving baggage on aircraft, disembarking, reaching connecting flights, getting from baggage hall to a designated point outside the airport terminal, ground handling of wheelchairs, etc.
• Air carriers to provide assistance free of charge including carriage of service dogs, transport of one piece of mobility equipment per passenger, arranging of seating on request to meet needs (subject to safety requirements).

Although the draft legislation puts the onus on the airport managing body to provide much of the assistance required, it envisages that the costs will be passed on to carriers by way of increased charges. Although the intention is that, in this way, the cost associated with ensuring that PRMs are not disadvantaged in their access to air travel compared with the rest of the travelling public, some carriers – in particular low-cost operators – will no doubt question the extent to which they are in a position simply to increase their ticket prices to reflect this increased cost.

The draft regulation is in the early stages of the legislative process in the EU but we will report further as this measure comes closer to becoming law.

In the meantime, carriers operating to and from the US will be aware of current proposals in the US department of Transportation to extend the US Air Carrier Access Act to non-US airlines. This US legislation dealing with access for PRMs to air transport differs in some significant respects from the proposed EU regulation described above, giving a potential regulatory headache for airlines trying to comply with both US and EU requirements.

This regulation would require "contracting carriers" – whether that be an airline or a tour operator – to inform passengers when they make their reservation as to the identity of the carrier that will operate the flight. This proposal, which is only in draft at present, is said to have been precipitated by the crash in January 2004 of a Flash Airlines B737 following take-off from Sharm-El-Sheikh. The EU proposal is aimed at increasing the information available to EU Member States and passengers. It is proposed that each EU State should publish a list of those carriers which are banned from its airspace or subject to safety restrictions, that the EU Commission should publish a consolidated list, and that passengers should be informed of the identity of the airline that will operate their flight.

Non-EU carriers should be aware of Opinion 3/2004 issued by the European Aviation Safety Agency at the end of last year. The opinion addresses a number of issues including the possible extension of EASA’s role in the fields of pilot licensing and air operations. However, of particular note is EASA’s support for a requirement that third country (i.e. non-EU) aircraft hold a certificate issued by EASA. If pursued, this could introduce an additional regulatory hurdle for non-EU airlines over and above the licensing and certification requirements of their home countries. This is only an opinion at present and it is also true to say that safety oversight is an increasing feature of international civil aviation. However, EASA’s proposal appears to advocate an approach which goes beyond safety oversight or auditing to the imposition of an extra certification requirement which arguably undermines the traditional model of mutual recognition of licences and certificates granted by ICAO member states.

MINIMUM INSURANCE REGULATION SHORTLY INTO FORCE Finally, EC Regulation 785/2004 on minimum insurance requirements for air carriers and aircraft operators comes into force on 30 April 2005. Readers should refer to Issue 17 of BLG Aerospace News (also available on our website, www.blg.co.uk) for the detail of the Regulation.