Opinion of the Economic and Social Committee on the "Proposal for a Regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights" (COM(2001) 784 final — 2001/0305 (COD))
Date: 2002-07-17
Institutions: European Economic and Social Committee
Subjects: air transport, carriage of passengers, indemnification, organisation of transport

7.10.2002

EN

Official Journal of the European Communities

C 241/29

Opinion of the Economic and Social Committee on the ‘Proposal for a Regulation of the European
Parliament and of the Council establishing common rules on compensation and assistance to air
passengers in the event of denied boarding and of cancellation or long delay of flights’

(COM(2001) 784 final — 2001/0305 (COD))

(2002/C 241/05)

On 30 January 2002 the Council decided to consult the Economic and Social Committee, under Article
80 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 19 June 2002. The rapporteur
was Mr Green.

At its 392nd Plenary Session of 17 and 18 July 2002 (meeting of 17 July) the Economic and Social
Committee adopted the following opinion by 121 votes to two, with one abstention.

1. Background

In 1991, the Community recognised the need for
1.1.
common rules on compensation and assistance to passengers
denied boarding, and adopted Regulation (EEC) No 295/91 (1).

ment of the costs and benefits involved, there continues to be
a need for a regulation governing the payment of denied
boarding compensation in the case of overbooking. The
present regulation has been effective, but is in need of revision
to deal with problems which have arisen since it was first
adopted’ (4).

1.2.
In 1998, the Commission concluded that the rules
needed extension and clarification and proposed a Council
Regulation amending Regulation (EEC) No 295/91 — COM
(1998) 41 final — 98/0022(SYN) (2).

1.5.
However, the Council failed to adopt the proposal
because of disagreement about its application to Gibraltar
airport.

As amended following the Parliament’s opinion (3), the
1.3.
proposal would have considerably widened the scope of the
regulation. Among other things, it would have included non-
scheduled flights, flights from non-Community to Community
airports, cancellations other than for safety or security reasons,
paperless forms of ticket and better information of passengers
on their rights.

‘The
The EESC opinion on the proposal concluded:
1.4.
Committee agrees that, subject to the results of a full assess-

1.6.
In 2000, the Commission, in its Communication on
the protection of air passengers in the European Union (5),
announced its intention to withdraw its 1998 proposal and to
replace it by a stronger one.

In May 2001, the Association of European Airlines (6),
1.7.
and others, presented voluntary commitments to improve
their quality of service etc. and recommended that their
members adopt them, as the majority are expected to do.
These are a real step forward, but do not cover compensation

( 1) Council Regulation (EEC) No 295/91 of 4 February 1991
establishing common rules for a denied boarding compensation
system in scheduled air transport. OJ L 36, 8.2.1991, p. 5.

( 2) Proposal for a Council Regulation (EC) amending Regulation
(EEC) No 295/91 establishing common rules for a denied-
boarding compensation system in scheduled air
transport.
COM(1998) 41 final, 30.1.1998.

( 3) Amended proposal

for a Council Regulation (EC) amending
Regulation (EEC) No 295/91 establishing common rules for a
denied boarding compensation system in scheduled air transport.
COM(1998) 580 final, 19.10.1998.

(4) Opinion of the Economic and Social Committee TRA/357 on the
Commission’s Proposal for a Council Regulation (EC) amending.
Regulation (EEC) No 295/91 establishing common rules for a
denied-boarding compensation system in scheduled air transport
(COM(1998) 41 final).

(5) Communication from the Commission to the European Parlia-
ment and the Council. Protection of air passengers in the European
Union. COM(2000) 365 final, 21.6.2000.

(6) AEA (Association of European Airlines), ERA (European Regions
Airlines Association) and IACA (International Air Carriers Associ-
ation).

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Official Journal of the European Communities

7.10.2002

and assistance to passengers who are denied boarding or
whose flights are cancelled. The Commission therefore feels
that legislation is required to protect such passengers.

call
for volunteers to surrender their reservations, unless
operators can prove that the situation has arisen solely as the
result of exceptional circumstances outside their responsibility.

Against

this backdrop,

1.8.
the Commission has now
submitted this Proposal for a Regulation of the European
Parliament and of the Council establishing common rules on
compensation and assistance to air passengers in the event of
denied boarding and of cancellation or long delay of flights (1)
which is the subject of this opinion. Under Article 20 of the
proposal, the existing Regulation (EEC) No 295/91 would be
repealed.

2. The Commission proposal

Under the existing Regulation (EEC) No 295/91, a

2.1.
passenger denied boarding has three rights:

— financial compensation (between EUR 75 and EUR 300),

Any passenger who does not voluntarily surrender his
2.6.
or her reservation would, in future, enjoy the rights set out
under points 2.2, 2.3 and 2.4. above.

2.7.
Long delays are not covered under the existing regu-
lation either. The proposal rectifies that situation, giving
passengers the right to choose between an alternative flight or
ticket reimbursement. In addition, special-need passengers,
people with reduced mobility, any accompanying person, and
unaccompanied children will be entitled to the services
specified in Article 9 of the proposal and to any other
assistance reasonably required to meet the special needs of
such passengers while waiting.

— choice between an alternative flight and reimbursement

of the ticket, and

Long delays are understood to mean two hours for
2.8.
flights of less than 3 500 kilometres and four hours for longer
flights.

— care while waiting: refreshments, meals, hotels.

2.2.
In contrast to the current position, the Commission is
now proposing that, in connection with denied boarding, an
operator would be obliged to ask passengers to volunteer to
give up their places in exchange for compensation to be
negotiated on the spot. Such compensation would reflect the
value that each passenger attached to the inconvenience
involved.

2.3.
Only if an insufficient number of volunteers came
forward, would operators be allowed to deny boarding.
Passengers denied boarding would have the same rights as
hitherto, although the financial compensation would be raised
to between EUR 375 and EUR 1 500 depending on whether
the distance involved is more or less than 3 500 km.

2.4. Moreover, a passenger denied boarding would be able
to choose between (i) reimbursement of the cost of the ticket
and, if need be, free transport home, or (ii) re-routing at the
earliest opportunity. Passengers denied boarding would also
be given assistance in the form of meals and, if necessary, hotel
accommodation.

No provision is made in the existing regulation for
2.5.
flight cancellations for which the operator is responsible. The
new proposal obliges operators to contact the passengers and

Lastly, a proposal

2.9.
is on the table to extend the
regulation to non-scheduled flights as well. The existing
regulation covers scheduled flights only. This does not affect
passengers’ rights under the directive on package travel (2).

The proposal

2.10.
is to apply to paying passengers,
including those travelling on frequent flyer points, departing
from an airport located in the territory of a Member State to
which the Treaty applies, and to passengers having a contract
with a Community carrier or with a tour operator for a
package offered for sale in the territory of the Community
departing from an airport located in a third country to one
situated in the territory of a Member State to which the Treaty
applies, unless the parties concerned benefit from comparable
compensation and assistance in that third country.

2.11.
proposed new regulation is appended to this opinion.

A table summarising both the existing and the

2.12.
sible for the enforcement of this regulation.

Each Member State is to designate the body respon-

( 1) COM (2001) 784 final — 2001/0305 (COD).

(2) Council Directive 90/314/EEC of 13 June 1990 on package travel,
package holidays and package tours, OJ L 158, 23.6.1990, p. 59.

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3. General comments

3.1.
The Committee is pleased that the Commission has
now taken the initiative and issued a completely new, revised
regulation. It is also happy that the Commission has taken on
board some of the improvements that the Committee had
proposed in its opinion on the original regulation. Some of
the improvements suggested by the Committee in its opinion
on the Commission’s proposal to amend the original regulation
have now also been included, even although the proposal for
an amendment was not adopted at the time.

The Committee regrets the Commission’s failure to
3.2.
publish detailed European statistics on the extent of denied
boarding. The US Department of Transport draws up monthly
statistics on delays, denied boarding etc (1).

The Committee hopes that, given the level of compen-
3.3.
sation involved,
instances of denied boarding will — for
commercial reasons — remain limited, since operators cannot
make a profit if, because of overbooking, they consistently
deny passengers boarding. The Committee also looks forward
to the promised regular Commission reports on the issue.

3.4.
It should be pointed out – and is evident from the legal
basis — that the main purpose of the proposal is to protect
consumers (2).

4. Specific comments

4.1. Article 7(1)

The Commission proposes relating compensation to
4.1.1.
fares, setting it at twice the level of most business class fares.
However, the new regulation is also to apply to smaller
regional flights (on aircraft with a maximum of sixty seats and
no business class), and to package travel, holidays and tours.
Per-passenger fares on non-scheduled flights are appreciably
lower than scheduled business class fares. Similarly, fares may
be lower on smaller regional
flights on aircraft with a
maximum of sixty seats and no business class. If denied

boarding is subject to the same compensation rates in all cases,
then — relative to the fare involved — regional and non-
scheduled flight operators will have to pay a much higher
‘penalty’ than scheduled flight operators. That is unwarranted.

4.1.2. R e c o m m e n d a t i o n

Consideration should be given to the appropriateness of the
compensation rates proposed in Article 7(1). Where necessary,
a distinction can be made in compensation rates between
scheduled flights, smaller regional flights and non-scheduled
flights.

4.2. Article 7(2)

4.2.1.
In its opinion TRA/357 of 1 July 1998 on the
Commission’s proposal amending the original regulation,
the Committee backed the provision whereby compensation
payments may be reduced by 50 % in cases where a passenger
denied boarding on the flight of his or her choice because of
overbooking is re-routed and arrives at his or her intended
destination within two hours of the scheduled arrival time for
flights of up to 3 500 km or within four hours for longer
flights. At that time, the Committee felt that these figures
should be reduced to one hour instead of two, and to two
hours instead of four.

4.2.2. R e c o m m e n d a t i o n

Where an airline that denies a passenger boarding on his or
her original flight, is able to offer travel on another flight
which, for flights of up to 3 500 km, arrives not more than
one hour later, and not more than two hours later for longer
flights, compensation payments should be reduced by 50 %.

4.3. Article 19

The Commission is to report

to the European
4.3.1.
Parliament and the Council by 1 January 2008 at the latest. In
the meantime, the Commission should draw up a report every
five years on implementation of the regulation, based partly
on its own assessments, partly on enquiries in the Member
States.

4.3.2. R e c o m m e n d a t i o n

The Commission should submit a report every five years on
implementation of the regulation based on reports drawn up
by the Member States.

4.4. Other comments

( 1) For homepage, see www.dot.gov/airconsumer.
( 2) The proposal also covers package travel, i.e. services defined in
Article 2(1) of Council Directive 90/314/EEC, but does not affect
passengers’ rights under that directive.

The Committee would like to see the regulation, and
4.4.1.
the compensation payments in particular, subject to regular
revision, for instance, in conjunction with the annual meetings

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Official Journal of the European Communities

7.10.2002

with representatives of air transport user organisations pro-
vided for in Article 8 of Regulation (EEC) 2409/92 (1). Such
revision should take account of the expenses incurred by
the parties implementing the regulation, the benefits for
consumers and also the overall development of passenger
flights and trends in denied boarding.

tives of European and regional air carrier organisations and air
transport user organisations, should carry out an assessment
of the costs and benefits resulting from the regulation.

5. Conclusion

4.4.2. R e c o m m e n d a t i o n

Prior to any revision of the regulation, the Commission, in
consultation with all the parties involved, including representa-

( 1) Council Regulation (EEC) 2409/92 of 23 July 1992 on fares and

rates for air services, OJ L 240, 24.8.1992, p. 15.

5.1.
Subject to the incorporation of the above recommen-
dations, the Committee agrees on the continued need for a
regulation on the payment of compensation for denied
boarding because of overbooking, The Committee welcomes
the rates and the proposed
the proposed adjustment of
extension to include cancellations and long delays for both
scheduled and non-scheduled flights.

SUMMARY OF PROPOSALS

SCHEDULED FLIGHTS

Existing regulation

Proposed new regulation

Denied boarding

A passenger has these three rights:

1)

— financial compensation (between
EUR 75 and EUR 300), and

— choice between alternative flight
and reimbursement of ticket, and

2)

Obligation on operators to call for volunteers to
surrender reservations in exchange for agreed
benefits (and also to give choice between alterna-
tive flight and reimbursement of ticket).

If nevertheless denied boarding, a passenger has
three rights:

— care while waiting: refreshments,

meals, hotels.

Cancellation (if re-
sponsibility of
the
operator)

Not covered

Long delay

Not covered

— higher

financial
EUR 375 and EUR 150), and

compensation

(between

— choice between alternative flight and reimburse-

ment of ticket, and

— care while waiting: refreshments, meals, hotels

3)

4)

Obligation on operators to contact passengers
and seek volunteers to surrender reservations.

A passenger who does not volunteer has three
rights:

— financial compensation as denied boarding
(between EUR 375 and EUR 1 500), and

— choice between alternative flight and reimburse-

ment of ticket, and

— care while waiting: refreshments, meals, hotels

5)

6)

A passenger has the right to choose between
alternative flight and reimbursement of ticket.

Special-need passengers
and people with
reduced mobility will be entitled to minimum
care while waiting: refreshments, meals, hotels.

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NON-SCHEDULED FLIGHTS

Existing regulation

Proposed new regulation

Denied boarding

Not covered

Cancellation

Long delay

Not covered

Not covered

Brussels, 17 July 2002.

As above

As above

As above

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and of the Council on the safety of third countries aircraft using Community airports’

(COM(2002) 8 final — 2002/0014 (COD))

(2002/C 241/06)

On 31 January 2002 the Council decided to consult the Economic and Social Committee, under
Article 80(2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 19 June 2002. The rapporteur
was Mr Santillán.

At its 392nd Plenary Session of 17 and 18 July 2002 (meeting of 17 July 2002), the Economic and Social
Committee unanimously adopted the following opinion.

1.

Introduction

common rules in the field of civil aviation and creating a
European Aviation Safety Agency (EASA), which was adopted
on 27 September 2000 (3).

In the wake of the Puerto Plata air crash (1), the Council
1.1.
called on the Commission to draw up proposals aimed at
improving the safety of European air travellers. In response to
this call the Commission convened a high-level group of
aviation safety experts and with its help drew up a Community
Aviation Safety Improvement Strategy (2) and undertook two
initiatives. The first of these was a Regulation establishing

1.2.
third
The second initiative aimed to ensure that
countries actually apply aviation safety standards. To this end,
in 1997 the Commission proposed a Directive establishing a
safety assessment of third countries aircraft using Community
airports (4). This proposal, on which the Economic and Social
Committee issued an opinion (5), lapsed on expiry of the time
limits laid down by Article 252 of the EC Treaty.

( 1) Dominican Republic. In 1996 a Turkish aircraft chartered by a

German tourist operator crashed, killing 176 passengers.

( 2) SEC(96) 2083 final.

(3) COM(2000) 595 final.
(4) COM(97) 55 final.
(5) TRA/333, rapporteur Mr Mobbs.