II
(Preparatory Acts)
COMMISSION
Amended proposal for a Council Regulation (EC) amending Council Regulation (EEC) No
295/91 establishing common rules for a deniedÜboarding compensation system in scheduled air
transportØ (˛)
(98/C 351/06)
(Text with EEA relevance)
COM(1998) 580 final - 98/0022(SYN)
(Submitted by the Commission pursuant to Article 189a(2) of the EC Treaty on 19 October 1998)
(˛)ÙOJ C 120, 18.4.1998, p. 18.
ORIGINAL PROPOSAL AMENDED PROPOSAL
Whereas action by the Community in the field of air
transport must aim at ensuring a high level of protectionfor users’ interests;Unchanged
Whereas Council Regulation (EEC) No 295/91 laid
down certain minimum standards on this subject;
Whereas in the light of application of that Regulation,
greater protection should be ensured for passengers’rights in this area;
Whereas passengers should be better informed of their
rights in the event of being denied boarding;
Whereas certain provisions of Regulation (EEC) No
295/91 should be clarified;
Whereas to avoid any disagreement about the checkÜin
time, that time should be set at 30 minutes before theannounced departure time, unless the passenger is
informed otherwise in writing in advance;18.11.98 C 351/7 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
Whereas since, in commercial terms, the borderline
between scheduled and nonÜscheduled air services is
becoming blurred, limitation of the scope of Regulation
(EEC) No 295/91 to scheduled flights only is no longersustainable; whereas that Regulation should also beextended to passengers on nonÜscheduled flights;
Whereas to provide effective protection for passengers, it
should be made clear that air carriers cannot be
exempted, by means of contractual clauses, from their
obligations pursuant to Regulation (EEC) No 295/91;
Whereas to provide rapid and effective protection for
passengers, arrangements should be made for the carrierwhich denies boarding to assume the obligations
provided for under this Regulation visÜ{Üvis the
passenger, without prejudice to that carrier’s right toseek compensation from a third party in accordance withthe relevant national legislation;
Whereas to ensure that air carriers can not avoid the
obligations incumbent upon them when boarding is being
denied, account should also be taken of the developmentof new forms of ticketing;
Whereas to ensure that all passengers will be treated in
accordance with the objectives of this Regulation, aconfirmed reservation indicates the existence of a
transport contract between the air carrier and the
passenger; whereas confirmed reservations may not bemade subject to additional conditions such as reconÜfirmation;
Whereas to ensure that passengers are adequately
informed of their rights in the event of being denied
boarding, provision should be made for a notice atcheckÜin counters; whereas in this respect, it isparticularly important that the Member State ensurecompliance with these provisions at all airports on their
territory;
Whereas it should be ensured that the air carrier uses the
entire available capacity of his aeroplane before denyingboarding, even if this means that the passenger will betransported in a class different from that for which his
ticket was paid;Whereas it should be ensured that the air carrier uses the
entire available capacity of its aeroplane subject to loadrestrictions before denying boarding, even if this meansthat the passenger will be transported in a class different
from that for which his ticket was paid;C 351/8 18.11.98 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
Whereas adequate compensation to a passenger who has
been denied boarding should consist in the reimÜ
bursement of the cost of any part of his ticket which
applies to a part of his journey which the passenger willnot undertake and of any part which no longer servesany purpose in relation to his travel plan as a result of
his being denied boarding;Unchanged
Whereas in the light of economic trends, it is already
necessary to adjust the compensation thresholds;
Whereas to ensure compliance with the provisions on the
subject, penalties which provide an adequate deterrent
and are proportionate should be introduced; whereas anappropriate system for adaption thereof should,consequently, be set up;Whereas to ensure compliance with the provisions on the
subject, penalties which provide an adequate deterrent
and are proportionate should be introduced by theMember States;
Whereas Regulation (EEC) No 295/91 should be
amended accordingly,Unchanged
HAS ADOPTED THIS REGULATION:
"Article 1
1.ÙÚThis Regulation establishes common minimum rules
applicable where passengers are denied access to anoverbooked flight for which they have a confirmed reserÜ
vation departing from an airport located in the territory
of a Member State to which the Treaty applies, irresÜpective of the State where the carrier is established, thenationality of the passenger and the point of destination."Article 1
1.ÙÚThis Regulation establishes common minimum rules
applicable where passengers are denied access to anoverbooked flight for which they have a confirmed reserÜ
vation and applies to:
(a)Ùall carriers departing from an airport located in the
territory of a Member State to which the Treatyapplies, irrespective of the State where the air carrieris established, the nationality of the passenger and
the point of destination,
(b)ÙCommunity carriers returning from airports in third
countries to points of destination in the territory of a
Member State to which the Treaty applies irresÜpective of the nationality of the passenger.
2.ÙÚThe obligation of air carriers visÜ{Üvis passengers
pursuant to this Regulation may not be limited orwaived, notably by a derogation or restrictive clause in
the contract of carriage.Unchanged18.11.98 C 351/9 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
Article 2
For the purpose of this Regulation:Article 2
For the purpose of this Regulation:
(a)Ù""denied boarding’’ means a refusal to accommodate
passengers on a flight although they have:(a)Ù""denied boarding’’ means a refusal to accommodate
passengers on a flight although they have:
-Ùa confirmed reservation on that flight, and -Ùa confirmed reservation on that flight, and
-Ùpresented themselves for checkÜin as stipulated
and 30 minutes before the announced departuretime or, where more time is prescribed, by thetime indicated to the passenger in advance in
writing by the air carrier or by its authorised
travel agent;-Ùpresented themselves for checkÜin as stipulated
and at the time indicated in advance in writing bythe air carrier or by its authorised travel agent,and if no time is indicated, not later than 30
minutes before the published departure time; the
airline shall be responsible for identifying thosepassengers still in the queue at the time of closingthe checkÜin for a flight, who shall be deemed tohave presented themselves for checkÜin;
(b)Ù""ticket’’ means a valid ticket or equivalent transport
document, whether in a paper form or paperless,including electronic form, sold by the air carrier orits authorized travel agent;Unchanged
(c)Ù""confirmed reservation’’ means that, to the exclusion
of any other condition, the passenger has a ticket
which contains
(i)Ùin the case of a ticket,
-Ùa specification of the number, date and time
of the flight, and
-Ùthe notation ""OK’’ in the appropriate space,
or
(ii) in the case of a paper or paperless transport
document equivalent to a ticket, indicates that
the reservation has been registered and
confirmed;
(d)Ù""overbooked flight’’ means any flight in return for
payment where the number of passengers holding a
confirmed reservation and presenting themselves for
checkÜin within the required time limit and asstipulated exceeds the number of available seats,including cases where the aircraft intended for theflight has been replaced by another aircraft;(d)Ù""overbooked flight’’ means any flight in return for
payment where the number of passengers holding a
confirmed reservation and presenting themselves for
checkÜin within the required time limit and asstipulated exceeds the number of available seats,including cases where the aircraft intended for theflight has been replaced by another aircraft, or the
flight has been cancelled for commercial reasons;C 351/10 18.11.98 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
(e)Ù""volunteer’’ means a person who: Unchanged
-Ùhas a confirmed reservation, and-Ùresponds positively to the air carrier’s call for
passengers prepared to surrender their confirmed
reservation in exchange for compensation;
(f) ""final destination’’ means the destination on the
flight coupon presented at the checkÜin counter or,
in the case of successive flights, the destination on
the last flight coupon of the ticket. Connectingflights which can be carried out without difficultiesalthough a delay has been caused by denied boarding
are not taken into account.
Article 3
1.ÙÚThe air carrier must use the full capacity available
on the aircraft before denying boarding.Article 3
1.ÙÚThe air carrier must use the full capacity available
on the aircraft, subject only to passenger load restrictionsfor safety reasons, before denying boarding.
If the passenger is placed in a higher class than that for
which a ticket has been purchased, the air carrier may
request no supplementary payment.If the passenger is placed in a higher class than that for
which a ticket has been purchased, the air carrier may
not request any supplementary payment.
If the passenger agrees to be placed in a class lower than
that for which a ticket has been purchased, he shall beentitled in addition to the compensation in accordancewith Article 4(2), (4) and (5), to reimbursement of the
difference in price.Unchanged
2.ÙÚAll air carriers must lay down the rules which they
will follow when passengers are denied boarding in theevent of an overbooked flight, including the rules layingdown the priorities for passenger embarkation. These
rules must include all the obligations arising from this
Regulation. The air carriers shall notify these rules andany changes therein to the Member States concerned andto the Commission, which shall make them available to
the Member States. Any such changes shall enter into
force one month after their notification.2.ÙÚAll air carriers must lay down, in plain and intelÜ
ligible language, the rules which they will follow whenpassengers are denied boarding in the event of an overÜbooked flight, including the rules laying down the
priorities for passenger embarkation. These rules must
include all the obligations arising from this Regulation.The air carriers shall notify these rules and any changestherein to the Member States concerned and to the
Commission, which shall make them available to the
Member States as well as to the relevant Europeanconsumer organisations. Any such changes shall enterinto force one month after their notification.
3.ÙÚThe rules referred to in paragraph 2 shall be made
available to the public by the carriers.3.ÙÚThe rules referred to in paragraph 2 shall be made
available to the public by the carriers; this duty may be
discharged via their authorised travel agencies.18.11.98 C 351/11 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
The legal entity responsible for passenger checkÜin must
ensure that a notice containing the following text in
letters at least two centimetres high is displayed at the
checkÜin counters in a manner clearly visible forpassengers:Unchanged
""If you are denied boarding, ask this checkÜin counter
for the text stating your rights, particularly with regard
to compensation.’’
4.ÙÚThe rules referred to in paragraph 2 must, where
technically feasible, include the possibility of a call forvolunteers prepared not to board.
5.ÙÚIn any event, the air carrier must take into
consideration the interests of the passengers who must be
given boarding priority for legitimate reasons, such ashandicapped persons and unaccompanied children.5.ÙÚIn any event, the air carrier must take into
consideration the interests of the passengers who must be
given boarding priority for legitimate reasons, such ashandicapped persons (and those accompanying them)and unaccompanied children.
6.ÙÚThe rules referred to in paragraph 2 shall form part
of the air carrier’s condition of carriage.6.ÙÚThe rules referred to in paragraph 2 shall form part
of the air carrier’s condition of carriage.
Member States shall make reference to these rules in the
permits issued to third country air carriers usingCommunity airports.
Article 4
1.ÙÚIn the event of boarding being denied, the air
carrier denying boarding must offer the passenger thechoice between:Article 4
1.ÙÚIn the event of boarding being denied, the air
carrier denying boarding, or those acting on its behalf atthe airport, must offer the passenger the choice between:
-Ùreimbursement without penalty of the cost of the
ticket for all parts of the journey not made or which
no longer serve any purpose in relation to its original
travel plan, or-Ùreimbursement without penalty of the cost of the
ticket for all parts of the journey not made or which
no longer serve any purpose in relation to its original
travel plan, or
-ÙreÜrouting under comparable air transport conditions,
to his final destination at the earliest opportunity, or-ÙreÜrouting under comparable air transport conditions,
to his final destination at the earliest opportunity, or
-ÙreÜrouting under comparable air transport conditions,
at a later date at the passenger’s convenience.-ÙreÜrouting under comparable air transport conditions,
at a later date at the passenger’s convenience.C 351/12 18.11.98 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
2.ÙÚIrrespective of the passenger’s choice mentioned in
the case referred to in paragraph 1, the air carrier
denying boarding shall, immediately after the boarding
has been denied, pay minimum compensation withoutprejudice to paragraph 4 and 5, amounting to:2.ÙÚIrrespective of the passenger’s choice mentioned in
the case referred to in paragraph 1, and without
prejudice to paragraph 4 and 5, the air carrier denying
boarding shall, immediately after the boarding has beendenied, pay at least the following amounts as compenÜsation:
-ÙECU 185 for flights up to 3Ø500 km, -ÙECU 185 for flights up to 3Ø500 km,-ÙECU 370 for flights of more than 3Ø500 km, -ÙECU 370 for flights of more than 3Ø500 km,having regard to the final destination specified in the
ticket.having regard to the final destination specified in the
ticket.
3.ÙÚThe Commission, acting in accordance with the
procedure laid down in Article 9a, may adjust theamounts referred to in paragraph 2 where that is made
necessary by economic trends.3.ÙÚEvery three years the Commission, acting in
accordance with the procedure laid down in thefollowing subparagraph and assisted by the Committee
established by Article 11 of Council Regulation (EEC)
No 2408/92, may adjust the amounts referred to inparagraph 2 where that is made necessary by economictrends.
The representative of the Commission shall submit to the
committee a draft of the measures to be taken. Thecommittee shall deliver its opinion on the draft, within a
time limit, which the chairman may lay down according
to the urgency of the matter, if necessary by taking avote.
The opinion shall be recorded in the minutes; in
addition, each Member State shall have the right to askto have its position recorded in the minutes.
The Commission shall take the utmost account of the
opinion delivered by the committee. It shall inform thecommittee of the manner in which its opinion has beentaken into account.
4.ÙÚWhere the air carrier denying boarding offers
reÜrouting to the final destination on an alternativeflight, the arrival time of which does not exceed the
scheduled arrival time of the flight originally booked by
two hours for flights of up to 3Ø500 km, and by fourhours for flights of more than 3Ø500 km, the compenÜsation provided for in paragraph 2 may be reduced by
50Ø%.Unchanged
5.ÙÚThe amount of compensation need not exceed the
price of the ticket in respect of the final destination.
6.ÙÚThe compensation shall be paid in cash or, with the
written agreement of the passenger, in travel vouchersand/or other services.6.ÙÚThe compensation shall be paid in cash or, with the
signed agreement of the passenger, by bank order,cheque, in travel vouchers and/or other services.
7.ÙÚThe distances given in paragraphs 2 and 4 shall be
measured by the great circle track method (great circle
route).’Unchanged18.11.98 C 351/13 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
"Article 7
The air carrier shall not be obliged to pay denied
boarding compensation in cases where the passenger is
travelling free of charge or at reduced fares not availabledirectly or indirectly to the public.’"Article 7
The air carrier shall not be obliged to pay denied
boarding compensation in cases where the passenger is
travelling free of charge or at reduced fares not availabledirectly or indirectly to the public. This exemption shallnot apply to tickets issued under a Frequent Flyer
Programme.’
"Article 8
Air carriers denying boarding shall provide each
passenger affected by denied boarding with a notice
setting out the denied boarding compensation rules.’"Article 8
Air carriers denying boarding shall provide each
passenger affected with a notice setting out the denied
boarding compensation rules in line with the provisionsof this Regulation. In the event of conflict between theprovisions of this Regulation and any lawful requirement
regarding denied boarding compensation of a third
country on air carriers operating on its territory, aircarriers shall, if possible, give passengers the benefit ofthose provisions that are the most favourable to the
passenger.’
"Article 9a
The Commission shall be assisted by a committee of an
advisory nature composed of the representatives of the
Member States and chaired by the representative of theCommission.Delete
The representative of the Commission shall submit to the
committee a draft of the measures to be taken. Thecommittee shall deliver its opinion on the draft, within atime limit which the chairman may lay down according
to the urgency of the matter, if necessary by taking a
vote.
The opinion shall be recorded in the minutes; in
addition, each Member State shall have the right to ask
to have its position recorded in the minutes.
The Commission shall take the utmost account of the
opinion delivered by the committee. It shall inform thecommittee of the manner in which its opinion has been
taken into account.’
"Article 9b
Member States shall determine the penalties applicable to
infringements of this Regulation and shall take allmeasures necessary to ensure that it is implemented. The
penalties provided for must be effective, proportionate
and dissuasive. The Member States shall notify theCommission of those measures no later than 30 June1998 and shall notify it of any amendments theretowithout delay.’"Article 9b
Member States shall determine the penalties applicable to
infringements of this Regulation and shall take allmeasures necessary to ensure that it is implemented. The
penalties provided for must be effective, proportionate
and dissuasive. The Member States shall notify theCommission of those measures no later than 6 monthsafter the entry into force of this amending Regulationand shall notify it of any amendments thereto without
delay.’C 351/14 18.11.98 Official Journal of the European Communities
EN
ORIGINAL PROPOSAL AMENDED PROPOSAL
"Article 9c
Each year the Member States shall compile a summary
report of the cases of denied boarding due to overÜ
booking which occurred at airports on their territory.Those reports shall be submitted to the Commission by31 March of the year following the year covered by the
report.’"Article 9c
Each year the Member States shall compile a summary
report of the cases of denied boarding due to overÜ
booking which occurred at airports on their territory,identifying the airline companies involved. Those reportsshall be submitted to the Commission by 31 March of
the year following the year covered by the report. The
Commission shall make this information available to therelevant European consumer organisations.’18.11.98 C 351/15 Official Journal of the European Communities EN