Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2003-08-11
Institutions: European Commission
Subjects: air transport, common transport policy, consumer protection, indemnification, reservation, ticket, trade regulations, transport company

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.8.2003
COM(2003) 496 final

2001/0305 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing common rules on compensation and assistance to passengers in the event of
denied boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No 295/91

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

2001/0305 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing common rules on compensation and assistance to passengers in the event of
denied boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No 295/91

1.

INTRODUCTION

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is
to  deliver  an  opinion  on  the  amendments  adopted  by  the  European  Parliament  at  second
reading.  The  Commission  sets  out  its  opinion  below  on  the  15  amendments  proposed  by
Parliament.

2.

BACKGROUND

On  21st.  December  2001  the  Commission  transmitted  to  the  European  Parliament  and  the
Council its proposal for a regulation (COM(2001) 784 final - 2001/0305 (COD)).

At its plenary session of 17 - 18th. July 2002 the European Economic and Social Committee
delivered a favourable opinion.

The Committee of the Regions did not give an opinion.

On 24th. October 2002 the European Parliament at first reading approved the proposal subject
to amendments.

On  4th.  December  2002  the  Commission  adopted  an  amended  proposal  incorporating  a
number of the European Parliament's amendments (COM(2002) 717 final).

On 18th. March 2003 the Council adopted a common position with qualified majority.

On  25th.  March  2003  the  Commission  adopted  an  opinion  concerning  the  common  position
(SEC(2003) 361 final).

On 3rd. July 2003 the European Parliament, at second reading, adopted a resolution amending
the common position.

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3.

PURPOSE OF THE PROPOSAL

In 1991 the Community adopted a regulation on compensation for passengers in the event of
denial of boarding to scheduled flights when caused by overbooking. This gave passengers, if
denied boarding  at  an  airport  in  the  Community,  the  right  to  financial  compensation,  to  the
choice  between  an  alternative  flight  and  a  ticket  refund  and  to  care  while  awaiting  a  later
flight (meals and hotel accommodation). This was an important step in the creation of rights
for air passengers.

In 2001 the Commission adopted a proposal to reinforce the protection of passengers, among
other things by introducing measures to reduce the frequency of denied boarding. In the event
of denied boarding, the proposal would oblige carriers first  to  call  for  volunteers  to  give  up
their reservations in exchange for agreed benefits. Then, only if insufficient volunteers came
forward,  would  airlines  be  allowed  to  deny  boarding.  In  this  case,  they  would  have  to
compensate  and  assist  passengers  as  under  the  present  regulation.  To  give  airlines  a  strong
incentive to  find volunteers and  create a powerful  deterrent  to  denying  passengers  boarding
against their will, the proposal would set compensation at higher levels than under the present
regulation.

In addition, the proposed regulation would extend the above rights:

- to cancellations of flights when the responsibility of the airline, one aim being to reduce the
number of people affected by late cancellations;

-  to  non-scheduled  flights;  as  these  are  frequently  used  for  package  tours,  the  regulation
would lay obligations on tour operators as well as airlines;

-  to  return  flights  from  third  countries  to  the  Community,  when  operated  by  Community
carriers.

The proposal would also create basic rights for passengers facing long delays.

4.

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN
PARLIAMENT

In  its  communication  to  the  European  Parliament  on  the  Council's  common  position
(SEC(2003) 361), the Commission stated that the common position did not alter the aims and
approach of its proposal so that  it could  support it, although it  would  have  preferred  higher
levels of compensation.

The  Parliament  at  second  reading  adopted  fifteen  amendments,  of  which  the  Commission
accepts eight wholly or in part, as they are in line with the objectives of its proposal.

4.1.

Amendments accepted by the Commission

Amendment 8 essentially changes the time limit for check-in, if an air carrier or tour operator
does not stipulate one, from thirty to sixty minutes before the published departure time. The
longer  period  is  preferable  because  of  the  reinforcement  of  security  procedures  since
11th. September 2001. Part of the proposal concerned: Article 3 paragraph 2 (a).

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Amendment  11  would,  first,  align  the  distance  bands  in  the  condition  for  assisting  delayed
passengers  on  those  in  Article  7,  paragraph  1  (levels  of  compensation),  so  clarifying  and
simplifying the proposal. Part of the proposal concerned: Article 6 paragraph 1.

It  would,  second,  limit  the  rights  of  passengers  to  assistance  under  Article  9  (meals  and
accommodation),  removing  the  right  to  assistance  under  Article  8  (choice  between
reimbursement and re-routing). In fact assistance under Article 8 could cause disruption and
further  delay  in  certain  circumstances,  for  instance  when  a  delayed  flight  arrives  while
passengers  are  being refunded or transferred to alternative flights.  It  would also remove  the
exemption  when  an  air  carrier  can  prove  that  it  was  not  responsible  for  the  delay.  This  is
justified, as it would ensure that passengers receive basic assistance in all circumstances.

Amendment 12 would align the distance bands in the condition for allowing the reduction of
compensation  in  the  case  of  shorter  delays  on  those  in  Article  7,  paragraph  1,  (levels  of
compensation),  so  clarifying  and  simplifying  the  proposal.  Part  of  the  proposal  concerned:
Article 7 paragraph 2.

Amendment  13  (second  element,  with  rewording)  would  add  "scheduling"  to  the  end  of
Article  8,  paragraph  1,  point  c).  This  would  make  clear  that  air  carriers  and  tour  operators
were not obliged specially to organise unplanned flights in the event of denied boarding or of
cancellation. Part of the proposal concerned: Article 8 paragraph 1 (c).

Amendment  14  would  align  the  distance  bands  in  the  condition  for  reimbursement  in  the
event  of  down  grading  from  a  higher  to  a  lower  class  on  those  in  Article  7,  paragraph  1,
(levels  of  compensation),  so  clarifying  and  simplifying  the  proposal.  Part  of  the  proposal
concerned: Article 10 paragraph 2.

Amendment 16 would allow tour operators to make claims against operating carriers, as well
as the reverse. This is reasonable, as either could be responsible for creating situations under
which  obligations  towards  passengers  had  to  be  met.  However,  this  addition  should  be
expressed in a similar way to the right already created by the common position for the sake of
clarity and consistency. Part of the proposal concerned: Article 13.

Amendment  19  would  postpone  for  one  year  the  Commission's  report.  This  would  allow  it
time  to  gather  fuller  information  on  the  operation  and  results  of  the  regulation.  Part  of  the
proposal concerned: Article 17 introductory sentence.

Amendment  20  would  change  the  regulation's  date  of  entry  into  force  from  three  to  twelve
months after its publication. This would give air carriers and tour operators time to introduce
new contracts and otherwise prepare for the application of the proposal. Part of the proposal
concerned: Article 19.

4.2.

Amendments rejected by the Commission

Amendment  2  would  add  a  recital  to  the  effect  that  passengers  travelling  by  all  modes  of
transport  should  be  treated  equally.  While  the  Commission  intends  to  take  initiatives  to
protect  the  rights  of  passengers  using  other  modes  of  transport,  the  question  is  outside  the
scope of the present proposal. Part of the proposal concerned: new recital 13.

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Amendment  4  would  change  a  recital  in  such  a  way  that  the  effects  of  many  decisions
concerning  air  traffic  control  would  be  considered  as  extraordinary  circumstances  under
which air carriers were not responsible for the consequences of cancellations. This would go
unjustifiably  far  in  limiting  the  responsibility  of  carriers  for  the  consequences  of
cancellations. Part of the proposal concerned: new recital 15.

Amendment  5  would  exclude  a  "retailer"  of  package  travel  from  the  definition  of  "tour
operator" and hence from the scope of the proposal. The definition in the common position is
identical  to  that  in  Directive  90/314/EEC  on  package  travel,  package  holidays  and  package
tours. It should be maintained so as not to introduce different definitions into Community law
and so cause confusion. Part of the proposal concerned: Article 2 (d).

Amendment 6 would reduce rights to financial compensation and to re-routing, by restricting
the "final destination" to that reachable without difficulties through connecting flights (when
connecting flights are used). The term "without difficulties" is not sufficiently clear and could
cause legal uncertainty. If interpreted widely, it would limit the obligations on carriers and so
restrict  the  rights  of  passengers  to  an  unacceptable  degree.  Part  of  the  proposal  concerned:
Article 2 (h).

Amendment  7  would  define  a  "cancelled  flight"  as  one  not  made  but  listed  in  a  computer
reservation  system  during  seven  days  before  the  expected  departure.  However,  this  would
greatly restrict the rights of passengers. First, some carriers do not use computer reservation
systems while others make part of their reservations directly with customers. In these cases,
flights  not  made  would  never  be  classed  as  cancellations,  because  not  listed  in  a  computer
reservation system. Second, if a carrier were to remove a flight from a computer reservation
system, whether during these seven days or before that period, it would not be considered as
cancelled. Part of the proposal concerned: Article 2 (ka) new.

In both ways, the amendment would frustrate the purpose of the proposal and, in particular,
would conflict with Article 5 paragraph 1 of the common position, which strikes a satisfactory
balance between the interests of passengers and air carriers.

Amendment 13 (first element) would limit the right to re-routing to the period of validity of a
ticket.  Such  a  restriction  is  not  justified  and  could  lead  in  practice  to  passengers  having
different rights to re-routing solely because of the validity of their tickets. Part of the proposal
concerned: Article 8 paragraph 1 (c).

Amendment  15  would  remove  the  clause  to  the  effect  that  courts  are  allowed  to  deduct
compensation  granted  under  the  regulation  from  the  damages  that  they  award.  The  clause
should  be  kept,  as  it  would  permit  courts  to  avoid  awarding  double  damages  against  air
carriers (the damages that they  grant plus the compensation that  carriers  are  obliged to  give
under the proposed regulation). Part of the proposal concerned: Article 12 paragraph 1.

Amendment  17  would  allow  air  carriers  to  make  claims  against  public  agencies  that  would
include  air  traffic  management  bodies  and  managing  bodies  of  airports.  This  is  outside  the
scope of this proposal. Part of the proposal concerned: Article 13 paragraph 1 (a) new.

5.

CONCLUSION

In  accordance  with  Article  250(2)  of  the  EC  Treaty,  the  Commission  amends  its  proposal
accordingly.

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