COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights
Date: 2011-04-11
Institutions: European Commission
Subjects: air transport, approximation of laws, carrier, consumer protection, indemnification

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EUROPEAN COMMISSION 

Brussels, 11.4.2011 
COM(2011) 174 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on the application of Regulation 261/2004 establishing common rules on compensation 
and assistance to passengers in the event of denied boarding and of cancellation or long 
delay of flights 

{SEC(2011) 428 final} 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on the application of Regulation 261/2004 establishing common rules on compensation 
and assistance to passengers in the event of denied boarding and of cancellation or long 
delay of flights 

1. 

INTRODUCTION 

Freedom  of  movement,  one  of  the  most  important  individual  rights  of  EU  citizens  and  an 
essential aspect of the internal market, is vital for the competitiveness and integration of the 
EU  economy.  Travelling  is  a  necessary  prerequisite  for  the  exercise  of  the  freedom  of 
movement.  (EC)  Regulation  261/20041  (hereinafter  "the  Regulation")  became  applicable  on 
17  February  2005.  The  Regulation  set  a  minimum  level  of  quality  standards  for  passenger 
protection, adding an important citizen's dimension to the liberalisation of the aviation market. 

The novelty of some provisions of the Regulation has led to different interpretations, and thus 
varied application, among air carriers and national enforcement authorities (NEBs), rendering 
it difficult for passengers and stakeholders to understand the scope and limits of the rights set 
out. In 2007 the Commission issued a Communication2 where the main shortcomings related 
to  the  application  of  the  Regulation  were  identified  with  a  set  of  remedial  measures.  The 
Commission  has  committed  to  stakeholders  and  EU  institutions  to  continue  the  efforts  to 
improve the application in order to ensure harmonised interpretation and enforcement of the 
Regulation and to report on it regularly. 

In line with this commitment, after 6 years of application, the Commission is assessing again 
the implementation of the Regulation. This report is part of the Commission's work to remove 
obstacles  to  preventing  citizens  from  effectively  exercising  their  rights  under  EU  law,  as 
launched  by  the  EU  Citizenship  Report  2010  "Dismantling  the  obstacles  to  EU  citizens' 
rights"3.  In  that  report  the  Commission  announced  its  intention  to  ensure  adequate 
enforcement of air passengers' rights in particular in the case of long delays and cancellations. 

Thus, the objective of this report is threefold: to list the developments since the adoption that 
may  have  an  impact  on  the  application  of  the  Regulation;  to  follow  up  the  measures 
undertaken since 2007, taking stock of the improvements in its application and the remaining 
obstacles;  to  identify  further  actions  to  ensure  at  short  term  further  improvement  of  its 
application  within  the  current  legal  framework  provided  by  the  Regulation,  and  to  evaluate 
possible changes that may help to better achieve its political goals. 

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JO L46/1 of 17-2-2004 
COM 168 (2007) 
COM 603 (2010) 

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2. 

DEVELOPMENTS SINCE 2007 

2.1. 

Changes in the market 

Over recent years the completion of the liberalisation of the aviation market, the boom of new 
companies  and  business  concepts  as  well  as  the expansion  of  new  routes  have  combined  to 
create  new  travel  opportunities  for  passengers.  The  number  of  passengers  has  increased  by 
roughly 35% since 2000. Travelling by air is no longer perceived as a luxury, but has become 
a necessity to meet business needs and a self-evident right for European citizens. 

However, with this growth the perceived quality of air transport has been negatively affected 
in some respect. This deterioration is due to many reasons, inter alia: avoidable delays due to 
airspace congestion, crowded airports and insufficient contingency planning in case of severe 
bad weather; stricter security measures; bigger airports with longer distances which imply, for 
passengers, risks in retrieving luggage and missing flights; and some commercial practices of 
air carriers which may negatively impact upon passengers - the weaker party to the transport 
contract – (such as the so-called "no show policy" or practices linked to the mishandling, of 
luggage that show loopholes and deficiencies in the application of current legislation). These 
problems may prove, in some cases, to be as costly for passengers as a cancellation or a long 
delay. Since the broad use of these commercial practices has developed after the adoption of 
the Regulation, further reflection is needed as to whether to tackle some of these questions at 
European level. 

The  means  and  purpose  of  travelling  have  also  evolved,  in  line  with  the  evolution  of  our 
society  towards  a  more  intensive  use  of  time  and  the  greater  importance  to  travel  and 
holidays. In the event that a journey is disrupted, the inconvenience for passengers is likely to 
be  higher  than  was  previously  the  case.  Thus,  the  main  objective  of  the  Regulation  -  to 
improve the situation of passengers if their journey is disrupted - is more pertinent than ever. 

2.2. 

Changes in EU Passenger Rights legislation 

The  Regulation  on  Rail  Passenger  Rights  came  into  force  in  December  20094.  In  2010 
Council  and  Parliament  adopted  a  Regulation  on  maritime  and  inland  waterway  passenger 
rights5 and in 2011, a Regulation on bus and coach passenger rights6.  

Due to the distinct characteristics of the different transport modes and their markets, both for 
the industries (differences in the company size, revenues or number of routes) and passengers 
(differences in the length and the conditions of the trip), the precise contents of these rights 
vary, but the typology of rights guaranteed by the three existing regulations for the transport 
by air, rail, sea and inland waterway and bus and coach are comparable; namely the right to 
information, reimbursement, re-routing, assistance while waiting to travel, and compensation 
under certain conditions. 

2.3. 

Changes in the international dimension 

The EU is no longer alone in the international arena in having set rules on minimum standards 
for  passenger  rights.  The  authorities  of  the  largest  air  transport  markets  also  increasingly 

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OJ L 315/14 of 03-12-2007 
OJ L 334/1 of 17-12-2010 
OJ L55/1 of 28-02-2011 

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enhance Air Passenger Rights (APR). The United States, Canada and other third countries are 
currently  improving  their  APR  legislation,  while  some  other  European  and  North  African 
countries  will  apply  the  Regulation  as  part  of  their  aviation  bilateral  or  multilateral 
agreements with the EU. However, the EU is so far the only part of the world where minimum 
standards for passenger rights have by now been set across all transport modes. 

2.4. 

Case law 

Case  law  has  had  a  decisive  impact  on  the  interpretation  of  the  Regulation.  In  the  IATA7 
ruling,  the  ECJ  confirmed  its  full  compatibility  with  the  Montreal  convention  and  the 
complementarities between the two legal instruments. In case C-549/07 Wallentin-Herrman8 
the  Court  clarified  when  a  technical  problem  in  an  aircraft  cannot  be  regarded  as  an 
‘extraordinary circumstance’. Better delineation of what may be considered as force majeure 
in  aviation  -taking  into  account  the  interpretation  provided  by  the  ECJ  and  lessons  from 
experience- seems advisable. In the case of the Sturgeon9 on long delays, the ECJ held that a 
long  delay  of  at  least  three  hours  at  arrival  may  entitle  passengers  to  the  same  amount  of 
compensation  as  in  the  case  of  a  flight  cancellation,  since  the  inconvenience  suffered  by 
passengers is similar. Since the ECJ rulings are directly applicable and legally binding from 
the  date  that  the  relevant  Regulation  came  into  force,  all  the  carriers  are  legally  obliged  to 
respect them.  

2.5. 

Volcano crisis of April 2010 

The closure of European air space because of the ash cloud from an Icelandic volcano in April 
2010 was an unprecedented event. The Regulation remained fully applicable, with the closure 
being immediately qualified EU-wide as an exceptional circumstance. 

A first assessment of the application of EU law on APR during the volcano situation shows 
that  the  vast  majority  of  airlines,  airports  and  other  travel  operators  worked  effectively  to 
minimise the impact on travellers. There is no doubt that, without the Regulation, the chaos 
and  cost  for  both  European  citizens  and  society  as  a  whole  would  have  been  much  bigger. 
NEBs now have to take the necessary measures against those few carriers which have refused 
to  comply  with  the  Regulation,  to  avoid  both  distortion  of  competition  among  carriers  and 
passengers' frustration at any lack of compliance with the law. 

Nonetheless, the volcano has illustrated some of the structural limits of the Regulation, which 
have been tested under the magnified scale of the crisis. The proportionality of some current 
measures, like the unlimited liability regarding the right to care under major natural disasters, 
may merit assessment. Member States and the Commission need to reflect on how to ensure 
that, in the future, this vital support which in the volcano crisis was provided solely by part of 
the industry is correctly shared and financed. An assessment of the financial cost of the crisis 
is  currently  ongoing;  however  this  requires  industry  to  provide  the  necessary  relevant  data, 
which may not yet be available given that a large number of passenger claims are still pending 
with  NEBs  or  the  competent  national  Courts.  A  full  assessment  of  reliable  figures,  current 
provisions and possible future measures is required to ensure no excessive burden is placed on 
the  aviation  industry  whilst  also  ensuring  that  citizens  do  not  bear  the  financial  cost  and 
inconvenience of natural catastrophes alone.  

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C-344/04 of 10-01-2006 
C 549/07 of 22-12-2008 
Joined cases C-402/07 and C-432/07 of 19-11-2009 

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Among the measures aimed at preserving the mobility of passengers in a crisis situation, the 
Commission  will  explore  possible  ways  to  enhance  the  level  of  preparedness  of  all  the 
different  actors  concerned.  The  temporary  lifting  of  operational  restrictions  such  as  night 
flight restrictions could be envisaged.  

3. 

FOLLOW UP OF THE MEASURES UNDERTAKEN SINCE 2007 

The  Commission  monitors  data  relating  to  the  application  of  the  Regulation,  drawing  on  a 
number  of  sources,  like  information  published  by  carriers  and  consumer  associations  or  by 
NEBs and Commission related services such as the Consumer Centres network (ECC-Net)10 
and the "Europe Direct Call Center" (EDCC); a number of studies and surveys carried out to 
examine  the  application  of  the  Regulation,  notably  the  2008  Report  on  carriers'  contract 
conditions and preferential tariff schemes11, the 2009 Eurobarometer on Passenger Rights, the 
2010  Consumer  Market  Scoreboard  and  the  2010  Report  on  the  evaluation  of  Regulation 
261/2004  12; the results of a public consultation on APR closed in 2010, which also tackled 
questions  relating  to  issues  such  as  mishandled  luggage13  and  the  relationship  between  the 
APR  and  the  rights  and  duties  stemming  from  the  Package  Travel  Directive14  in  case  of  a 
carriers'  bankruptcy.  This  work,  available  at  the  Commission  website,  may  serve  as 
complementary information to this report15. 

According to the information gathered, some of the shortcomings are related to the wording 
and  the  content  of  the  Regulation,  thus  they  cannot  be  solved  without  an  amendment  of 
current  rules  and  are  not,  therefore,  tackled  in  this  report.  That  being  said,  for  the  sake  of 
completeness, the main criticisms to the content of the Regulation are listed here.  

For  industry,  the  main  criticisms  are  linked  to  the  Regulation's  complexity;  to  the  lack  of  a 
limitation  of  liability  to  provide  care  in  the  event  of  extraordinary  circumstance  beyond  the 
carrier's control; to the difficulties in ensuring the costs incurred in applying the Regulation 
are  covered  by  the  responsible  third  party;  to  the  lack  of  a  better  outlining  of  extraordinary 
circumstances  both  beyond  and  within  the  carriers'  control;  and  to  the  lack  of  uniform 
interpretation and enforcement.  

For  passengers,  the  main  criticisms  are  that the  Regulation  may  not  be  correctly  applied  by 
carriers  (e.g.  right  to  be  offered  re-routing  at  the  earliest  opportunity  by  any  comparable 
transport  condition  and  to  receive  care  whilst  waiting  to  be  re-routed);  that  NEBs  do  not 
handle  complaints  quickly  and  efficiently;  that  the  decisions  of  NEBs  are  not  binding  and 
therefore are not always followed by carriers or recognised by judges; and that there is a lack 
of  monitoring,  measuring  and  publication  of  information  on  the  performance  of  operators, 
relating to the application of the Regulation and to consumer satisfaction levels. 

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http://ec.europa.eu/consumers/ecc/index_en.htm 
By Steer Davies Gleeve http://ec.europa.eu/transport/passengers/studies/passengers_en.htm 
By Steer Davies Gleeve, same webpage. 
OJ L140/2 of 30-5-2002 
OJ L158/59 of 23-6-1990 
SEC (2011) 428 Commission Staff Working Paper, accompanying document to this Communication 

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Regarding  the  application  of  the  Regulation  the  Commission  in  its  Communication  of  2007 
identified different areas for improvement, namely, the lack of: 

–  uniform interpretation and enforcement throughout the EU;  

–  clear and easily accessible means of complaint handling; and  

–  adequate information to passengers. 

To overcome these, the Commission has encouraged stakeholders to reach an understanding 
as to how the Regulation could be applied satisfactorily. Two voluntary agreements have been 
reached  clarifying  both  NEB  and  airline  obligations  on  complaint  handling,  in  particular  in 
extraordinary  circumstances.  Moreover,  two  interpretative  documents  to  help  harmonise  the 
application  and  enforcement  of  the  Regulation  have  been  agreed  by  NEBs  under  the 
leadership of the Commission, one in 2007 (a Questions & Answers "Q&A" document), and 
another  in  2010  related  to  the  volcanic  crisis.  The  Commission  has  chaired  several  NEB 
meetings every year, encouraged constant informal exchanges of information between NEBs, 
and maintained an open and constant dialogue with the industry and all relevant stakeholders, 
with  multilateral  meetings  every  year.  Such  dialogue  has  helped  all  parties  to  better 
understand both the context within which the Regulation is applied and the requirements of 
the  competent  national  authorities.  The  Commission  attaches  great  importance  to  this 
dialogue with all interested parties, and seeks to develop it further. 

According to the different sources of information, there are three main conclusions to draw at 
this  stage.  First,  the  difficulties  in  the  application  linked  to  the  lack  of  both  uniform 
interpretation and consistent enforcement at national level are still high. Secondly, the striking 
differences between complaint handling procedures, deadlines  to answer  passengers and the 
non-legally binding nature and the scope of the NEBs' opinions frustrate passengers as well as 
weaken the application of the Regulation. Finally, passengers' awareness of their rights does 
not appear to have increased.  

While some of the shortcomings are directly linked to the Regulation, part of them stems from 
fragmented  consumer  protection  legislation  and  the  enforcement  of  such  legislation  in 
practice, particularly in cross-border situations. 

3.1. 

Lack of uniform interpretation 

Due to the novelty of APR legislation and the lack of definition of some of the terms used by 
the co-legislators, some of the articles have been subject to divergent interpretations from the 
beginning.  For  most  of  the  questions  discussed  in  2007,  the  interpretation  provided  then  by 
NEBs and the Commission is now largely accepted by all stakeholders. Some other questions, 
however, have been rendered obsolete further to the interpretation provided by the ECJ while 
new ones have added up. An update of the "Q&A" document is thus necessary. 

The  exceptional  natural  events  that  occurred  in  2010  -  the  volcano  crisis  and  the  severe 
weather  conditions  -  have  stressed  the  need  to  underline  that,  in  those  cases  where  the 
responsibility  for  the  disruption  belongs  to  any  other  person,  including  third  parties  (air 
service providers, airport managers, ground-handlers, tour operators, national administrations, 
etc.)  air  carriers  can  seek  compensation  from  them.  Article  13  clearly  establishes  a  shared 
liability, whereby the operating carrier has the responsibility to assist passengers, but not the 
obligation to pay all the costs. The purpose of using the operating carrier as the focal point for 

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the obligations of the Regulation is to ensure the effective application of the Regulation to the 
benefit  of  passengers,  while  allowing  cost-sharing  with  any  other  person,  private  or  public, 
responsible for the disruption16.  

Under the new light shed by the general principles developed by the jurisprudence some other 
terms  in  articles  have  become  clear  enough  not  to  be  any  longer  subject  to  divergent 
interpretations,  notwithstanding  future  ECJ  opinions.  This  is  the  case  of  the  right  to  be  re-
routed at the earliest opportunity under comparable transport conditions (Art. 8.1.b) in case of 
cancellation or denied boarding, and the right to the provision of care (Art. 6) at connecting 
points. 

As the Court has made clear in its case-law, it is necessary, in interpreting a provision of EU 
law,  to  consider  not  only  its  wording  but  also  the  context  in which  it  occurs,  the  objectives 
pursued  by  the  rules  of  which  it  is  part  and  the  reasons  which  led  to  its  adoption17.  For 
passengers, the first and most essential right is the reassurance that they will get to travel in 
conditions similar to those stipulated in their tickets, notably regarding the scheduled times. In 
line  with  both  the  political  objectives  of  the  Regulation  to  reduce  inconvenience  for 
passengers and to offer them reasonable re-routing18 as well as with the reasoning of the ECJ, 
the provisions conferring rights on air passengers must be interpreted broadly19. 

Under  Article  8  passengers  have  the  right  to  choose  to  be  re-routed  "under  comparable 
transport  conditions";  this  may  be  conducted  by  another  mode  of  transport  or  by  another 
carrier  covering  the  same  route  or  a  very  similar  one,  in  the  same  or  similar  fare  class. 
Carriers  are  obliged  to  offer  such  a  choice  to  their  passengers.  The  "comparable  transport 
conditions"  must  be  defined  on  the  basis  of  the  same  or  similar  class  and  not  on  the  ticket 
price paid by the individual passenger, since the price of a plane seat changes continuously as 
part of the commercial strategy of the company, depending on many different factors. This is 
demonstrated by the fact that on the same flight, in the same fare class, passengers sitting next 
to each other may have paid substantially different prices for identical seats. 

The same principles apply to the provision of care at connecting points regardless of the point 
of the journey where the long delay - or the first delay that triggers the long delay - occurred. 
The Regulation must be interpreted in accordance with primary law as a whole, including the 
principle  of  equal  treatment,  which  requires  that  comparable  situations  must  not  be  treated 
differently20.  What  is  essential  to  define  the  carrier's  obligations  is  the  single  contractual 
relation which ensures passengers to get to their final destination at the scheduled time. For 
passengers, a connecting point in their tickets linking two different legs of their journey has 
no  other  purpose  than  helping  them  reach  their  final  destination.  Meanwhile  under  the 
Regulation carriers are not prevented from offering the service themselves (either directly or 
via connecting flights) nor are they prevented from using another carrier's flights  under  any 
agreement between the carriers. This is clearly stated by the legislator in article 2 (h) where it 
provides  the  definition  of  final  destination  and  it  limits  carriers'  liability  by  specifying  that 
"alternatives connecting flights shall not be taken into account if the original planned arrival 
time is respected".  

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Recitals 7 and 8 
p 41-42 of Sturgeon 
Recital 12 
p.17 Wallentin-Hermann; p. 45 Sturgeon 
p.95 of IATA Case 

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The legislator has consistently chosen the concept of the final destination to determine both 
the carrier's liability (which may be reduced if arrival time is respected) and the appropriate 
rights  of  passengers  (to  minimise  any  inconvenience  suffered).  Article  6  imposes  the 
obligation  to  care  on  the  operating  carrier  when  it  reasonably  expects  passengers  to  be 
delayed beyond the timeframes fixed in this article, and this obligation covers passengers that 
find  themselves  delayed  at  a  connecting  point  towards  their  final  destination.  Article  13 
affirms the right of the operating carrier (which must provide the care) to seek redress from 
the  carrier  responsible  for  causing  the  delay,  e.g.  the  contractual  carrier  or  the  carrier 
operating a preceding (delayed) flight.  

If  the  ECJ  has  played  a  key  role  in  clarifying  some  of  the  most  controversial  points,  the 
Commission  is  aware  however  that,  given  the  complexity  of  current  rules,  the  number  of 
questions that may still need ECJ interpretation remains high.  

Moreover,  as  mentioned  in  point  2.4,  the  volcano  crisis  highlighted  the  importance  of  clear 
interpretation. Air Passenger Rights must be analysed as a whole, thus it becomes necessary 
to  assess  whether  loopholes  in  current  legislation  -i.e.  on  luggage  related  issues-  or  new 
practices  from  the  market  should  be  addressed.  Therefore,  in  the  light  of  experience  and 
recent  developments,  the  Commission  considers  that  an  assessment  of  current  measures  is 
necessary  and  that,  in  this  context,  proper  coordination  with  the  ongoing  revision  of  the 
Package Travel Directive is required. 

The Commission will work with the NEB Network to agree on harmonised interpretation, and 
it  will  launch  in  2011  an  Impact  Assessment  to  assess  the  proportionality  of  the  current 
measures  in  the  light  of  experience  and  the  costs  of  the  regulation  for  stakeholders,  with  a 
view to propose further measures on Air Passenger Rights (APR), including of a legislative 
nature, in 2012.  

3.2. 

Lack of uniform enforcement through the EU 

The  2010  Report  concluded  that  problems  with  enforcement at EU level are due to the fact 
that,  in  many  Member  States,  enforcement  is  not  effective,  proportionate  and  dissuasive 
enough to provide carriers with an economic incentive to comply with the Regulation. As a 
consequence,  these  national  differences  in  the  approach  to  enforcement  risk  of  distorting 
competition in air transport. 

In 2010 the Commission has encouraged several joint NEB actions against carriers to ensure 
the  successful  harmonised  correction  of  any  improper  practice.  NEBs  have  started  carrying 
out new measures, like the monitoring both the information published by the carriers as well 
as  letters  sent  to  passengers  in  order  to  correct  any  wrong,  misleading  or  incomplete 
information.  This  work  is  supported  by  structured  contacts  with  carriers  when  non-
compliance  is  suspected,  and  the  use  of  official  warnings  to  encourage  compliance.  Even  if 
these warnings and NEB joint actions have improved enforcement at EU level, shortcomings 
which require further actions remain: 

3.2.1.  Differences in national laws and procedures 

The 2010 Report analysed and explained the main reasons that make enforcement in most of 
Member  States  too  complex,  too  slow  or,  in  practice,  inapplicable.  These  divergences  in 
national legal frameworks, administrative systems and judicial procedures increase costs and 
legal uncertainty for both the aviation industry, which is heavily reliant on cross-border traffic 

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for business, and passengers. Working with Member States to detect and overcome obstacles 
in national law hampering proper application of the Regulation –including, if necessary, the 
opening of infringement procedures- will improve enforcement at EU level. 

Regulation  261/2004  is  covered  by  the  Regulation  EC  2006/2004  (CPC  Regulation)21  to 
investigate  and  to  enforce  cross-border  infringement  on  collective  consumer  interest. 
However, national authorities have not made use of these possibilities presented by the CPC 
Regulation in the past. Regulation 261/2004 provides for the appointment of its own national 
enforcement authorities which have to apply their national penalty schemes on both national 
and non-national operators working on their territory. This may have contributed to a limited 
use of the CPC Network in this sector. All options aiming at ensuring better enforcement of 
Regulation 261 at cross border level should be explored. 

The Commission will work with relevant Member States to identify and overcome obstacles 
in national law hampering proper application and uniform enforcement of the Regulation, and 
will  assess  the  opportunity  to  remove  them  by  the  opening  of  infringement  procedures  if 
necessary. 

3.2.2.  Lack of clear mandate and internal rules of the "NEB Network" Group 

Article 16 of the Regulation envisages enforcement at national level without establishing any 
tool to ensure the necessary harmonised, consistent and efficient application of the regulation 
at EU level. To overcome this shortcoming the Commission has encouraged NEBs to work as 
an informal group (the NEB Network) within which they may agree on enforcement matters. 
This  experience  has  shown  the  benefits  of  ensuring  that  NEBs  agree  on  a  common 
interpretation of the Regulation and that coordinated enforcement measures are coordinated. 

Experience  has  identified  three  main  obstacles  that  currently  prevent  agreements  reached 
within the NEB Network from being fully respected: the lack of adequate mandate defining 
the  tasks  allocated  to  it;  the  lack  of  officially  appointed  members  with  capacity  to  take 
decisions on behalf of their national administrations; and the lack of internal rules defining, 
notably, the effects of its decisions and how they are adopted. This can be achieved by setting 
up  mechanisms  designed  to  ensure  that  agreements on the application of  the law within  the 
current  NEB  Network  are  honoured  by  all  Member  States.  This  network  of  enforcement 
authorities will cover the various EU regulations on APR, by adapting the appointed members 
to  the  regulations  under  discussion,  notably,  Regulations  261/2004,  1107/200622  or 
889/200223.  

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OJ L 364/1 of 9.12.2004 
OJ L 204/1 of 26-7-2006 
OJ L 140/2 of 30-5-2002 

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The Commission will implement a mandate and internal working rules for the existing NEB 
network -which will cover the various APR regulations- to improve their coordination at an 
appropriate  level  and  to  facilitate  the  adoption  of  common  and  relevant  decisions  on  the 
interpretation  and  enforcement  of  the  Regulation,  including  further  clarification  on 
extraordinary circumstances and on a reasonable and proportionate right to care.  

3.2.3.  Lack  of  carriers'  provision  of  information  on  their  procedures  to  comply  with  the 

Regulation 

In  order  to  operate  carriers  are  not  obliged,  either  under  EU  law  or  national  law,  to  have  a 
certified  APR  contingency  plan.  This  means  that  a  NEB  has  to  be  extremely  proactive  and 
judge  how  each  carrier  interprets  and  fulfils  their  obligations  under  the  Regulation  on  the 
basis of the information they receive from indirect sources. The lack of obligation to inform 
NEBs  in  advance  of  the  procedures  in  place  to  comply  with  the  Regulation  unnecessarily 
complicates  the  NEB's  task  of  preventing  unfair  practices.  This  may  be  improved  by  better 
coordination at national level between the licensing authority and the NEB, and by increased 
cooperation with all relevant stakeholders An expert group will be set up to provide opinions 
to the Commission on all APR legislation. 

The Commission will: 

–  encourage  better  coordination  at  national  level  between  the  authority  that  issued  the 
operating  licence  and  the  NEB  to  enhance  enforcement  measures,  and  between  the 
different national bodies appointed as NEBs to step up the exchange of information about 
carriers' compliance; 

–  structure  its  contacts  with  all  other  key  stakeholders  through  the  creation  of  an  Air 
Passenger Rights Consultative Group, reflecting industry and passenger perspective on all 
issues related to air passengers' rights. 

3.2.4.  Lack of integrated data, reporting obligation and "recueil" of jurisprudence 

The 2010 Report highlighted that better coordination at EU level of all the data available at 
national  and  EU  Level  could  improve  uniform  enforcement.  This  could  be  achieved  by 
agreeing  within  the  NEB  network  group  common  definitions  and  categories  of  data  to  be 
shared;  where  information  exchanged  comprises  of  personal  data,  Directive  95/4624  applies. 
Currently there is no compilation of national rulings on the application of the Regulation. This 
hinders  harmonisation  of  the  interpretation,  even  within  the  same  country.  A  more 
harmonised enforcement of the Regulation by NEBs and national judges could be achieved by 
compiling and publishing relevant judgements both at EU and national level. Finally, NEBs 
do not publicly report on sanctions and other measures taken to ensure carriers' compliance 
and neither the NEBs nor the industry currently report on the operators' overall performance 
in  complying  with  the  Regulation.  Public  reporting  on  sanctions  and  carriers'  performance 
would offer more transparency to the general public and thus help to achieve a more correct 
application of the Regulation and promote a level playing field among air carriers.  

24 

OJ L 281 , 23/11/1995 P. 0031 - 0050 

EN 

10 

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The Commission will:  

–  encourage  NEBs  to  make  use  of  effective  tools  to  exchange  information,  including  on 
relevant  national  administrative  and  judicial  decisions,  to  seek  further  coordination  of 
databases and further reporting on the application of the Regulation; 

–  promote  a  better  level  playing  field  among  operators  across  the  European  area,  amongst 
others by  encouraging the publication of issued sanctions and/or of  the operators' overall 
performance in complying with the Regulation. 

3.3. 

Lack  of  harmonised  and  accessible  complaint  handling  procedures  and  means 
of redress 

Article  16  establishes  two  different  tasks  for  the  NEBs:  the  enforcement  of  the  Regulation 
with recourse to sanction schemes in case of improper conduct, and the handling of individual 
complaints  from  passengers.  The  Regulation  leaves  complete  freedom  to  Member  States  to 
decide the nature of the Body in charge of this latter task, which may or may not be the same 
authority  as  that  in  charge  of  enforcement.  The  Regulation  does  not  provide  a  definition  of 
complaint  handling  nor  does  it  identify  a  specific  competent  NEB  for  complaint  handling. 
Three  major  criticisms  arise  from  a  passengers'  perspective:  firstly,  current  deadlines  by 
which carrier and NEBs respond to passengers are too long; secondly NEBs issue non binding 
opinions  which  may  not  be  followed  by  carriers  and  not  always  be  recognised  by  national 
Courts,  notably  when  the  decision  is  issued  by  NEBs  of  another  Member  State;  and  thirdly 
NEBs  do  not  always  mediate  between  passengers  and  carriers.  The  main  points  still 
unresolved are:  

3.3.1.  Divergences on the role of NEBs and the scope of their opinions  

Different  models  of  complaint  handling  have  been  developed  since  2005  and  have  been 
explained at length in the 2010 Report. The roles of NEBs, the scope of their opinions and the 
deadlines  for  handling  complaints  are  thus  still  very  different  in  the  EU.  According  to  the 
spirit of the Regulation, the complaint handling should provide passengers with a meaningful 
answer on their specific rights within a reasonable deadline, and not only with information on 
the  degree  of  the  carrier's  compliance  with  the  law  or  on  possible  sanctions.  Several  NEBs 
acknowledge  an  increase  in  the  number  of  passengers'  complaints  in  recent  years.  This  is  a 
good sign in terms of increased awareness of citizens' rights while travelling by air, but on the 
other  hand,  current  NEB  structures  may  not  be  able  to  handle  properly  an  increasingly  big 
number of complaints within a reasonable deadline. Working with Member States to identify 
and  overcome  shortcomings  in  their  appointed  national  complaint  handling  bodies  and 
procedures  -while  ensuring  the  necessary  flow  of  information  to  the  enforcement  authority- 
could  lead  towards  a  more  efficient  and  harmonised  complaint  handling  at  EU  level. 
Secondly,  efficient  means  for  private  redress  at  national  and  EU  level,  e.g.  establishing 
arbitration  or  mediation  bodies  that  could  help  passengers  seek  binding,  quick  and 
inexpensive redress, will help to improve application and passengers' satisfaction. 

EN 

11 

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The Commission will: 

–  work with relevant Member States to identify and overcome shortcomings in their current 
national complaint handling bodies and procedures to lead towards a more efficient, quick 
and  consistent  complaint  handling  at  EU  level  while  ensuring  the  indispensable  flux  of 
information between the complaint handling and the enforcement bodies; 

–  ensure proper coordination with the ongoing revision of existing or future EU measures on 
enforcement  and  redress,  like  those  on  alternative  dispute  resolution  mechanisms  or 
collective consumer redress. 

3.3.2.  The competent NEB to handle a complaint; Reasonable deadlines 

The two voluntary agreements on complaint handling are currently not fully respected by all 
parties. According to reports from ECCs and consumer organisations, it is difficult to find out 
how to lodge a complaint with some airlines. The timeframes within which a passenger can 
expect a final opinion from the NEB may currently vary roughly between four and 18 months, 
in  addition  to  the  time  taken  by  the  carrier  to  answer  a  claim.  Currently,  for  two  similar 
incidents  relating  to  the  same  return  ticket  with  the  same  carrier  -for  instance  lack  of  care 
during two long delays, one on the outbound and  another on the inbound flight- passengers 
must  complain  to  two  different  NEBs,  go  through  two  different  procedures  with  different 
deadlines, to get two different kind of opinions, one that might quantify his specific rights, the 
other regarding the status of compliance with the Regulation. Further political engagement of 
Member States to respect the deadlines set up in the voluntary agreements and to work in a 
more consistent manner would improve the current situation. 

These  differences,  still  prevalent  at  EU  level,  cause  passengers  frustration  due  to  the 
imbalance between their expectations regarding the NEBs' role and what NEB may actually 
do  within  the  framework  of  their  own  national  procedures.  Language  issues  may  present 
another  barrier.  These  are  all  the  more  apparent  because  of  the  cross-border  nature  of  air 
transport  and  the  agreed  principle  of  "incident  based"  competence  for  NEB  complaint 
handling. Experience shows that sometimes, due to the closer relation of the passenger with 
another relevant point of the trip, passengers seem to prefer to be given a choice regarding the 
competent NEB to handle a complaint (as it is the case regarding competent jurisdictions25). 
The  possibility  of  offering  passengers  a  similar  choice  regarding  the  competent  NEB  to 
handle their complaint could be explored as this may facilitate not only any legal actions by 
passengers  but  also  the  follow  up  of  NEB  decisions  by  the  competent  Court  of  the  same 
country. 

The Commission will: 

–  promote  a  more  uniform  and  quick  handling  of  complaints,  notably  by  submitting  to  the 
NEB network Group a common standard form to request information from carriers and a 
proposal on the competent NEB; 

–  work  with  the  future  APR  Consultative  Group  to  encourage  air  carriers  to  establish 

reasonable and precise timeframes to handle passenger claims. 

25 

Case C-204/08, Rehder p. 43 and 45 

EN 

12 

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3.4. 

Lack of information provided to passengers 

Passengers  need  to  receive  correct  information  to  assess  whether  their  rights  have  been 
properly respected and to know where they may turn in case of dissatisfaction. Inaccurate or 
misleading  information  -provided  to  passengers  through  carriers'  contractual  terms  and 
conditions,  general  information  in  their  publicity  and  press  statements  and  specific 
information  provided  in  the  carrier's  answers  to  passenger  claims-  is  a  major  wrong  which 
should be prosecuted in all cases, even in the absence of complaints. Immediate reaction from 
NEBs  is  essential.  Disparities  are  still  perceived  whenever  an  air  carrier  must  provide 
passengers with information under article 14.2 about the cause for the disruption of their trip. 
Encouragement  from  NEBs  for  the  industry  to  increase  the  use  of  new  technologies  (e.g. 
SMS, internet and social networking sites) to reach the affected passengers as soon as possible 
may help to minimise inconvenience to passengers and costs to carriers. 

Robust quantitative data are an invaluable tool for operators, consumers and decision-makers 
alike. The Regulation would be more effective if carriers provided more information to NEBs 
that would facilitate the publication of information on issues such as punctuality, number of 
flights  affected  by  disruption  and  the  APR  measures  applied,  in  full  compliance  with 
Directive  95/46/EC.  This  would  also  serve  to  increase  competition,  based  on  customer  care 
standards, between carriers and the general flow of information to the public, thus helping to 
achieve a level playing field among air carriers. 

The  Commission  will  work  with  the  NEB  Network  and  the  APR  Consultative  Group  to 
encourage airlines and other relevant operators to regularly report to NEBs on relevant data 
on the application of the Regulation for publication. 

The  number  of  passenger  complaints  when  a  carrier  fails  to  fulfil  its  obligations  in  case  of 
incident  remains  low26,  which  shows,  among  other  possible  reasons,  a  certain  lack  of 
passengers'  awareness  of  their  rights.  In  2010  the  Commission  launched  a  Europe-wide 
information campaign to increase citizen's awareness. Further measures carried out by NEBs, 
consumer  associations  or  Commission-related  services  like  the  ECC  Network  may  further 
increase  passenger's  awareness  of  the  scope  of  their  rights  and  how  to  exert  them.  In  the 
framework of its cross-modal approach to passenger rights, the Commission will continue to 
seek stakeholders' support to progressively transform transport hubs, including airports, into 
places  where  citizens  can  get  easy  access  to  information  about  their  EU  Rights,  especially 
when travelling across the EU. 

The  Commission  will  raise  passengers'  awareness  on  their  rights,  through  widespread 
communication,  such  as  the  on-going  Commission  information  campaign  on  passengers' 
rights, as well as through existing consumer networks, as the ECCs and in coordination with 
the NEB network.  

4. 

CONCLUSIONS AND FURTHER STEPS 

In spite of the progress made since 2007, the Commission considers that there are three areas 
where  measures  are  still  necessary  to  improve  the  application  of  the  Regulation:  effectively 

26 

Less than 7% from the 2009 Eurobarometer 

EN 

13 

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harmonised enforcement of EU rights, facilitation of their enjoyment in practice, and raising 
awareness about these rights.  

In  this  report  the  Commission  has  identified  12  actions  to  overcome  the  obstacles  that 
passengers and the industry still face when applying and enjoying the rights provided by the 
Regulation. In the short term, these actions build on the mechanisms and procedures already 
in place, to better structure and use them. In the medium term, the Commission will carry out 
an assessment to evaluate the impact of the current Regulation and the different scenarios that 
may help to improve the protection of APR and to keep pace with evolving socio-economic 
realities.  This  should  allow  the  Commission  to  announce  in  2012  which  further  measures, 
including those of a legislative nature, may appear necessary.  

Thus, the Commission will:27 

(1)  Work with relevant Member States to identify and overcome obstacles in national law 
hampering  proper  application  and  uniform  enforcement  of  the  Regulation,  and  will 
assess  the  opportunity  to  remove  them  by  the  opening  of  infringement  procedures  if 
necessary; 

(2) 

(3) 

(4) 

(5) 

(6) 

Implement a mandate and internal working rules for the existing NEB network -which 
will  cover  the  various  APR  regulations-  to  improve  their  coordination  at  an 
appropriate level and to facilitate the adoption of  common  and  relevant decisions on 
the interpretation and enforcement of the Regulation, including further clarification on 
extraordinary circumstances and on a reasonable and proportionate right to care; 

Encourage  better  coordination  at  national  level  between  the  authority  that  issued  the 
operating  licence  and  the  NEB  to  enhance  enforcement  measures,  and  between  the 
different  national  bodies  appointed  as  NEBs  to  step  up  the  exchange  of  information 
about carriers' compliance; 

Structure its contacts with all other key stakeholders through the creation of an APR 
Consultative Group, reflecting industry and passenger perspective on all issues related 
to air passengers' rights; Work with the future APR Consultative Group to encourage 
air carriers to establish reasonable and precise timeframes to handle passenger claims; 

Encourage NEBs to make use of effective tools to exchange information, including on 
relevant national administrative and judicial decisions, to seek further coordination of 
their databases and further reporting on the application of the Regulation; 

Promote  a  better  level  playing  field  among  operators  across  the  European  area, 
amongst  others  by  encouraging  the  publication  of  issued  sanctions  and/or  of  the 
operators' overall performance in complying with the Regulation; 

(7)  Work  with  relevant  Member  States  to  identify  and  overcome  shortcomings  in  their 
current  national  complaint  handling  bodies  and  procedures  to  lead  towards  a  more 
efficient,  quick  and  consistent  complaint  handling  (at  EU  level)  while  ensuring  the 
the 
indispensable  flow  of 
enforcement bodies; 

the  complaint  handling  and 

information  between 

27 

These conclusions repeat the boxes in the text above 

EN 

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(8) 

(9) 

Ensure proper coordination of passenger rights legislation with the ongoing revision of 
existing or future EU measures on enforcement and redress, like those on alternative 
dispute resolution mechanisms or collective consumer redress; 

Promote a more uniform and quick handling of complaints, notably by submitting to 
the NEB network Group a common standard form to request information from carriers 
and a proposal on the competent NEB; 

(10)  Work with the NEB Network and the APR Consultative Group to encourage airlines 
and  other  relevant  operators  to  regularly  report  to  NEBs  on  relevant  data  on  the 
application of the Regulation; 

(11)  Raise passengers' awareness on their rights, through widespread communication tools, 
such as the on-going Commission information campaign on passengers' rights, as well 
as through existing consumer networks, as the European Consumer Centres; 

(12)  Launch  in  2011  an  Impact  Assessment  to  assess  the  proportionality  of  the  current 
measures  in  the  light  of  experience  and  the  costs  of  the  regulation  for  stakeholders, 
with a view to propose further measures on Air Passenger Rights and in coordination 
with the ongoing revision of the Package Travel Directive (90/314/EEC), including of 
a legislative nature, in 2012. 

EN 

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