Proposed amendments to EU261 published

[Watershed]

The EU Council has published its draft regulation amending the EU261 air passenger rights legislation (attached).

Someone has summarised the changes on Flyertalk. There are a number of positives:

1. The ability to drop the outward leg of the journey without penalty - see Article 4(5a): “Passengers shall not be denied boarding and shall not be charged any fee on the inbound journey, including one which consists of connecting flights, on the grounds that they did not take the outbound journey under the same air transport contract.”. Given the definition of “journey” is “a flight or connecting flights transporting the passenger from the initial point of departure to the passenger’s final destination in accordance with a single air transport contract, with outbound and return flights being separate journeys” I don’t think any argument about this including skip-lagging would carry weight. Of course, there will still be ways of saving money by booking a return in the “wrong direction” when you want to make a one-way flight priced at a premium, e.g. transatlantic business class. Existing precedents in Germany, Austria and Italy recognise this as justifiable under consumer or contract law, so this isn’t a completely new concept.
2. A requirement for fares to include both a personal item and a piece of hand luggage by default (i.e. larger bag or small suitcase). Elsewhere it has been reported that the latter is only up to 7kg or up to a total dimension of 100cm (width/length/height combined, which really isn’t much and is less than the standard IATA size trolley bag) but I can’t see any reference to those limits in Regulation 2(zfa) defines the former as up to 40x30x15cm and the latter as “a piece of unchecked baggage which is not a personal item and which complies with security and safety requirements”. Given there are currently no material weight or size limitations for hand luggage at security I wonder if the airlines will either try to argue their overheads can’t take more than a small amount of weight (to charge for heavier cases) or whether they will charge extra for being guaranteed to have your second item in the cabin.
3. New rights during “tarmac delays”, defined as any 30+ minute period between the aircraft door closing and takeoff, or between touchdown and the door opening. These include free water, access to toilets and A/C, albeit with exceptions if it would lead to a greater delay etc. After a 2+ hour delay the aircraft is required to return to a stand to allow passengers to disembark unless infeasible. I wonder if this will actually change anything on the ground, because there is no obvious mechanism for enforcement or penalty for non-compliance. Still, a good right to have in principle.
4. Explicit enumeration of case law on several points, e.g. that diversions to an alternative airport count as a cancellation unless it is to an airport serving the same city/town/region, and whether rebooked or diverted, alternative transport must still be provided to the booked destination and the delay timer keeps counting until you actually reach the booked destination airport.
5. A ban on Ryanair’s boarding pass shenanigans such as being required to use a specific app or log in to check in or show your boarding pass, being denied boarding if you print out an electronic boarding pass, or being charged a fee for printing boarding passes once checked in. Similarly you can’t be required to log in to submit a compensation etc. claim
6. The right to free water and phone charging facilities in airport terminals. In fairness it’s been a while since I saw an airport charging for either but good to have this enshrined. Again no specific penalty or enforcement mechanism is specified so this may be better enforced by some countries’ National Enforcement Bodies than others.
7. The establishment of a 30 day deadline for airlines to respond to compensation claims and a requirement to provide more reasoning as to any ‘exceptional circumstances’ defence relied on. Seeing as there is no penalty for non-compliance I can’t exactly imagine this will change much but it’s nice to have on paper.
8. Explicit enumeration of the right to self-rerouting (and the right to be reimbursed reasonable expenses for this - but see the next section for limitations) if an airline fails to offer re-routing within 3 hours of the scheduled departure time, or the re-routing isn’t under comparable transport conditions. The legislation gets painfully close to explicitly stating that re-routing must be as quick as possible, but then suggests that one of the acceptable options for an airline to offer would be “a different routing [i.e. connecting flights] between the same airport of departure and of arrival as stated in the air transport contract”. No doubt airlines will seize upon this as evidence that they don’t need to provide a direct same-day alternative… Talk about snatching defeat from the jaws of victory.
9. Clarification of the refreshments you are entitled to during a delay, i.e. a meal after 3 hours’ delay and every 5 hours thereafter up to a maximum of 3 meals a day and a requirement for any meal vouchers to be accepted at all airport shops, not just ones the airline’s chosen voucher provider has an affiliation with.
10. A new requirement for airlines to “pay out” any vouchers that passengers originally accepted (in lieu of cash compensation/refunds) if they aren’t fully used within a year of issuance. Also, “All options … shall be clearly displayed, without being subject to pre-selection, default settings or additional procedural burdens which favour one option.” No doubt squarely aimed at the scummy refund processes adopted by the likes of Wizzair (when I last had a cancellation with them, they first required you to obtain a voucher and then convert this into a cash refund).
11. Additional rights for PRMs and musicians travelling with instruments in the cabin.

But arguably some of the negative changes outweigh this:

1. Airlines would now only be required to provide up to 3 nights of accommodation if exceptional circumstances apply. Ryanair fought this after the Icelandic ash cloud and lost at the CJEU - so why is the EU legislating to overturn that long-established decision? There doesn’t seem to be any evidence that it imposes unreasonable costs on airlines. If anything, the obligation to pay for accommodation until people are rebooked currently serves as an encouragement to quick (possibly cross-carrier) re-routing. The ostensible justification in Recital 31 is that “contingency planning and speedy rerouting should lessen the risk of passengers being stranded for long periods contingency planning and speedy rerouting should lessen the risk of passengers being stranded for long periods” but this seems hopelessly naive as to the reality on the ground when there’s widespread disruption (e.g. after the closure of ME airspace, NATS system failure etc.)
2. The introduction of a 9 month time limit for submitting compensation claims. Given the statute of limitations is considerably longer in most countries this represents a substantial lessening of passenger rights. That said, this is likely targeted at reducing claims management companies’ business and in fairness, if you are truly inconvenienced by a delay I don’t think it’s unreasonable to expect you to submit your claim within that period. This was probably a sweetener added in to limit airlines’ liability and thus cap their overall ‘bill’.
3. A new reduction of compensation if rebooked to depart earlier: 25% for 2-3 hours earlier, and 50% if rebooked 1-2 hours earlier. Until now, both attracted the full rate of compensation although the law was somewhat ambiguous on this point, which airlines exploited. Disappointing to see the EU legislating in favour of the non-compliant airlines, overwriting existing CJEU precedent - no doubt lobbied for by the likes of A4E.
4. Existing case law is overriden to redefine “arrival time” as the time the aircraft’s brakes are applied on stand, rather than the time the doors open, unless there is a tarmac delay (i.e. 30+ min delay in opening the doors). This works very much in the airlines’ favour and effectively slightly increases the current delay thresholds. Obviously it’s much easier to independently verify the arrival time on stand than the time the doors opened, but this is clearly an anti-passenger measure.
5. You would be required to present yourself at the gate in good time to be eligible for IDB protections, not just at checkin as is the case now. A crucial distinction given the current EES mess, since airlines can currently be held responsible if you miss boarding due to security or passport delays (see Caldwell v easyJet). Seems to be another case of endorsing the airlines’ current failure to comply with the law.
6. A new cap of 400% of the original fare paid when claiming back self-rerouting costs. Given that “walk-up” fares can be extortionate this severely limits the practical usefulness of this right. I appreciate the airlines will have lobbied for this to protect their financial interests but if you have bought a bargain-basement economy light/basic fare for say 30 Euros, what use is the ability to claim back 120 Euros when you have to pay 500 Euros for a new flight that actually leaves the same day (as opposed to the flight next Wednesday which Ryanair may be offering…).
7. Disruption to Greenlandic internal flights would be entirely excluded from compensation if part of a journey to the EU (they are outside the scope of EU261 if purely booked as a domestic journey). Again, it’s unclear why this is considered necessary when the legislation has applied to these flights for the last 20 years? It looks remarkably like Danish lobbying on behalf of Air Greenland...

The proposals are yet to be voted on by the EU Parliament as I understand it, so let's hope that some of the negative changes are removed or lessened before it becomes the law.

 

[gabrielhj07]

1. New rights during “tarmac delays”, defined as any 30+ minute period between the aircraft door closing and takeoff, or between touchdown and the door opening. These include free water, access to toilets and A/C, albeit with exceptions if it would lead to a greater delay etc. After a 2+ hour delay the aircraft is required to return to a stand to allow passengers to disembark unless infeasible. I wonder if this will actually change anything on the ground, because there is no obvious mechanism for enforcement or penalty for non-compliance. Still, a good right to have in principle.

This seems particularly unworkable to me, many LHR departures could easily reach that threshold if it’s busy.

 

[Farigiraf]

I know that in the short term there'll be a lot of (mostly valid) criticism as I've no doubt that the likes of Ryanair/Wizz/Easyjet will jack up prices in some sort of protest to this.
But I do think that a decade from now we'll be looking back on the days of less rights (and slightly lower fares, if you're lucky) and wonder as to how we managed it. So I'm happy to see it, having been subjected to way too many tarmac delays and refund shenanigans before.

 

[Watershed]

This seems particularly unworkable to me, many LHR departures could easily reach that threshold if it’s busy.

Agreed, it's rare you have a pushback and taxi that lasts less than 20 mins so a 30 mins threshold means a vast proportion of flights are theoretically in scope. That said, people making journeys originating in the UK (or elsewhere outside the EU) on flights operated by BA won't be in scope, so it's nuanced.

In practice I suspect the exemptions to do with providing water etc. causing further delay will be invoked so frequently that the tarmac delay rights will become largely meaningless in practice. Certainly we see airlines being fined all the time for breaches of US tarmac delay rules, so I don't imagine that a penalty-free obligation like this will see a high compliance rate.

I know that in the short term there'll be a lot of (mostly valid) criticism as I've no doubt that the likes of Ryanair/Wizz/Easyjet will jack up prices in some sort of protest to this.
But I do think that a decade from now we'll be looking back on the days of less rights (and slightly lower fares, if you're lucky) and wonder as to how we managed it. So I'm happy to see it, having been subjected to way too many tarmac delays and refund shenanigans before.

Agreed, it does fix some of the issues that currently plague the industry. It doesn't go far enough in some areas and there are some substantial negative changes in there too, but I do see that they're trying to address some of the current pain points of flying.

 

[Cloud Strife]

Existing case law is overriden to redefine “arrival time” as the time the aircraft’s brakes are applied on stand, rather than the time the doors open, unless there is a tarmac delay (i.e. 30+ min delay in opening the doors). This works very much in the airlines’ favour and effectively slightly increases the current delay thresholds. Obviously it’s much easier to independently verify the arrival time on stand than the time the doors opened, but this is clearly an anti-passenger measure.

This is perhaps actually fairer for the airlines, as there are countless examples of where the plane has arrived on the stand and then the airport or ground handling company has failed to actually get the stairs or jet bridges in place. It's also probably easier to monitor and enforce, as there's no record of when doors are opened, but there are records of when a plane actually arrives on stand. I'm willing to accept this, as it's much more transparent.

Disruption to Greenlandic internal flights would be entirely excluded from compensation if part of a journey to the EU (they are outside the scope of EU261 if purely booked as a domestic journey). Again, it’s unclear why this is considered necessary when the legislation has applied to these flights for the last 20 years? It looks remarkably like Danish lobbying on behalf of Air Greenland...

I would argue that this is actually fair enough, given the very specific nature of domestic Greenlandic flights. Greenland doesn't have the resources to equip their remote airports with ILS and other navigational aids, and they also have a lot of airport operational issues that rarely occur within the EU. Air Greenland are generally very good at helping out customers in need, such as by using helicopters if they can't get planes in/out of remote airports, and they also have a fairly complex operation that relies on things like planes landing at one domestic airport before passengers being taken onwards by helicopter to nearby towns and villages.

There is also one other thing: some flights operated by Air Greenland have flexible timetables, such as Ammassivik - Nanortalik. These are cargo flights in which you can book a seat, but because the service is built around the cargo service, they often can't finalise the departure time until the day of the flight, and it's known for them to move around the flight times even on the day to meet the needs of cargo. So, it's quite understandable that Greenlandic domestic flights are excluded, because they simply don't have a very stable operation. Things are getting a bit better with the new airports, but for instance, it's not really fair for Air Greeland to have to pay compensation when remote airports aren't equipped with deicing equipment.

 

[Terry Tibbs]

Most modern aircraft with ACARS will record when the first door is opened after arrival on stand.

 

[Watershed]

This is perhaps actually fairer for the airlines, as there are countless examples of where the plane has arrived on the stand and then the airport or ground handling company has failed to actually get the stairs or jet bridges in place.

If it's the ground handling company at fault, it's the airline's own subcontractor so they are liable for their actions. There aren't many places where the airport itself has a monopoly over ground handling. In fact some airlines do their own handling at their hubs.

It's also probably easier to monitor and enforce, as there's no record of when doors are opened, but there are records of when a plane actually arrives on stand. I'm willing to accept this, as it's much more transparent.

I agree it's more transparent but the thresholds should have been reduced by at least 10 minutes to account for this. And any substantial delay in opening the doors should still count.

 

[Tetchytyke]

It'll be interesting to see exactly how the ground delays end up being defined. The situation with airports which have a long taxi time (even more than Heathrow I'm thinking of the Polderbaan at Schiphol) factored into the overall flight time isn't really a delay. But it will hopefully put a stop to the nonsense of aircraft sitting at the gate with the seatbelt signs lit and no air conditioning for long periods of time, or aircraft with tech issues being moved fully loaded to the far end of the airfield just to get them out of the way.

I don't mind the clarity of the delay time being defined as when the brakes are applied, rather than when the doors are opened. It makes it fair for all airlines and it means that an airline isn't penalised for using a jetbridge, which takes longer to connect up to the aircraft door.

I think clearly defining the right to self re-routing is a net positive. I don't have an issue with an airline rebooking on to connecting flights if there's a delay to the direct flight, I think that's fair enough. But it should prevent Ryanair/Wizz/Vueling from only offering the options for airline rebooking or a refund in their app. I'd agree about the cap being unfair though, and that will incentivise airlines to offer ridiculous rebooking options knowing that people can't recoup their costs in full.

 

[Watershed]

It'll be interesting to see exactly how the ground delays end up being defined.

The draft regulation defines it as any period of 30+ minutes after the aircraft door closes, if the aircraft has not taken off yet.

The situation with airports which have a long taxi time (even more than Heathrow I'm thinking of the Polderbaan at Schiphol) factored into the overall flight time isn't really a delay.

Agreed, although I hardly imagine the regulation will be applied by airlines in practice if the aircraft is simply queueing to take off.

But it will hopefully put a stop to the nonsense of aircraft sitting at the gate with the seatbelt signs lit and no air conditioning for long periods of time

Indeed - I think that's the part that is probably most objectionable. Yes, aircraft which notify ATC they are ready to go get priority for any earlier departure slots that become available. And they can't do that unless the door is closed AFAIK. But that doesn't mean the APU can't be running or that the seatbelt sign has to be on.

Handing out bottles of water is also unlikely to delay takeoff since the trolley can be stowed quickly whilst taxying. Many airlines distribute them from baskets or plastic packs anyway.

Admittedly at some airports the use of APUs is restricted for noise and/or emissions reasons. It's a tradeoff between passenger comfort and those factors.

or aircraft with tech issues being moved fully loaded to the far end of the airfield just to get them out of the way.

Yes, I think the regulation really needs to distinguish between different kinds of ground delays:

1) An aircraft that's fully loaded but waiting for an ATC slot. Here the above rules should apply, as you say - and if the expected wait is more than 2 hours, or the slot ends up getting put back to more than 2 hours, the right to disembark would be engaged.

2) An aircraft that is actively taxying out to the runway, and is simply in a takeoff queue and/or is being deiced. Here I agree that it doesn't make sense to distribute water or return to the gate etc.

3) An aircraft that's delayed because loading isn't finished (e.g. waiting for bags or ground handling staff/equipment), or it has some kind of technical/paperwork issue. In this case the 30 minute water etc. rule and 2 hour disembarkation rule makes perfect sense in my view.

It does seem a bit counterintuitive though that the draft regulation ostensibly gives the right to disembark after 2 hours, and yet you wouldn't be entitled to a refund until the (expected) delay reaches 5 hours. If 2 hours is considered significant enough that you're allowed to force the aircraft to return to stand, why shouldn't you be able to insist on a refund?

I don't mind the clarity of the delay time being defined as when the brakes are applied, rather than when the doors are opened. It makes it fair for all airlines and it means that an airline isn't penalised for using a jetbridge, which takes longer to connect up to the aircraft door.

I hardly think that airlines are currently deciding their disembarkation method based on EU261 considerations.

The issue with this change is not only that it effectively increases the compensation thresholds by a few minutes (on average), but that it destroys any incentive for the airline to make sure their ground handling agent is sufficiently staffed.

There is no penalty for making people wait 20 minutes for someone to operate the jetbridge or stairs for example. Only when the delay exceeds 30 minutes does it constitute a ground delay, but even then, based on my reading of the draft regulation, it wouldn't affect the eligibility for compensation. So you could incur a 3 hour delay after arriving at the gate and it still wouldn't entitle you to compensation. That doesn't seem right.

I know such a delay may sound outlandish but I've experienced one nearly that long (I think it was 2 and a bit hours in the end) during strong winds at Stansted. BA CityFlyer's appointed ground agents, I think it was Menzies, refused to risk attaching steps because it could damage the aircraft.

So we were kept onboard until someone pulled their finger out and said enough is enough. Meanwhile, during all that time Ryanair and Jet2 flights were being handled normally, demonstrating that it was simply an overcautious approach by the handler.

I think clearly defining the right to self re-routing is a net positive.

Agreed. It currently exists by virtue of case law but too many people won't be aware of that. Unfortunately I don't think the draft regulation includes any obligation to notify people of their right to self-re-rerouting, at least not in a way where they would realise that it might be worthwhile.

Too often even now (where it's a right but not obvious) people think they have to accept the airline's offer of a flight in 2 or 3 days' time when there's a same day alternative on another airline.

I don't have an issue with an airline rebooking on to connecting flights if there's a delay to the direct flight, I think that's fair enough.

If connecting flights are quicker then yes by all means. But we already see currently how full-service airlines try to keep revenue within their JV/alliance partners and so will push connecting flights, even if much slower or not even the same day.

But it should prevent Ryanair/Wizz/Vueling from only offering the options for airline rebooking or a refund in their app.

I doubt they will change their practices in that respect. At best we can hope they'll make it clear that self-re-rerouting will be reimbursed. But the 400% limit will significantly limit the practical use of that right.

Moreover it's been pointed out elsewhere that most airlines don't clearly break down the cost of the outward and return flight. The draft regulation doesn't specifically say so, but I assume airlines will take the cost of the affected flight as the baseline for the 400% calculation. So people may well think they're covered for more than they are, and get a big shock when half of their rerouting bill is refused.

I'd agree about the cap being unfair though, and that will incentivise airlines to offer ridiculous rebooking options knowing that people can't recoup their costs in full.

Yep and it's a significant worsening of the current position.

 

[Tetchytyke]

So you could incur a 3 hour delay after arriving at the gate and it still wouldn't entitle you to compensation. That doesn't seem right.

There are edge cases whichever way you measure it. Ryanair's 737s have in-built steps at the front so they can just open the door even if the ground handlers aren't ready to let people into the terminal. Likewise I've had delays of 30 minutes and more at Manchester with the doors open waiting for the airport to send the shuttle buses to the remote stand, before then having a 10-minute tour of the entire apron.

But we already see currently how full-service airlines try to keep revenue within their JV/alliance partners and so will push connecting flights, even if much slower or not even the same day.

It'll be interesting to see how it works in practice.

I don't necessarily have an issue with an airline putting someone on to a same-day connecting flight with their alliance partners, but I do have an issue when it starts being the next day. But with the cap there will be more of that because they know people won't be able to get all their costs back.