CELEX: 52013PC0130
Language: en
Date: 2013-03-13
Title: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 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 and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air

|
			
		
		
		52013PC0130
		
			Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 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 and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air /* COM/2013/0130 final - 2013/0072 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
1.1.        The current legal
framework
Regulation (EC) No 261/2004[1] depending on the circumstances of the travel disruption, requires
air carriers to:
·      provide passengers with assistance, such as meals, refreshments,
telephone calls and hotel accommodation; 
·      offer re-routing and refunds; 
·      pay a flat-rate compensation of up to €600 per passenger, depending
on the flight distance; and
·      proactively inform passengers about their rights.
The airline is not obliged to pay financial
compensation if it can prove that the cancellation or delay was caused by
extraordinary circumstances. However, the obligations for care and assistance
are upheld even in such situations.
The Regulation also requires Member States
to establish National Enforcement Bodies (NEBs) to ensure the correct
application of the Regulation.
The rights of passengers under the
Regulation should not be confused with their rights under the Montreal
Convention: whilst the Convention provides for individualised damage to
travellers, assessed on a case-by-case basis depending on the individual
circumstances of the passenger, Regulation (EC) No 261/2004 establishes
standardised entitlements (with regard to assistance and care) applicable to
all passengers, regardless of their individual circumstances.
Under the Montreal Convention (as
translated by Regulation (EC) No 2027/97[2]
into EU law), a passenger may be entitled to compensation in case of mishandled
baggage (but with a limit of about €1200), except if the airline can
demonstrate it has taken all reasonable measures to avoid the damages or it was
impossible to take such measures. Unlike Regulation (EC) No 261/2004, neither
Regulation (EC) No 2027/97 nor the Montreal Convention requires the
establishment of enforcement bodies to ensure their correct application.
1.2.        Recent
developments
Airlines often fail to offer passengers the
rights to which they are entitled in instances of denied boarding, long delays,
cancellations or mishandled baggage, in particular under Regulation (EC) No 261/2004
("the Regulation") and Regulation (EC) No 2027/97.
The Commission EU Citizenship Report
of October 2010 on dismantling obstacles to EU citizens' rights[3] announced measures to ensure a
set of common rights for passengers travelling by any transport mode across the
EU and the adequate enforcement of these rights.
The Commission White Paper on Transport adopted on 28 March 2011 mentioned among
its initiatives the need to "develop a
uniform interpretation of EU law on passenger rights and a harmonised and
effective enforcement, to ensure both a level playing field for the industry
and a European standard of protection for the citizens".[4]
The Commission Communication of 11 April
2011[5]
reported on the varying interpretation being taken on the provisions of
Regulation (EC) No 261/2004, due to grey zones and gaps in the current text,
and the non-uniform enforcement across Member States. Furthermore, it is
difficult for passengers to enforce their individual rights.
On 29 March 2012, the European
Parliament (EP) adopted a resolution[6] in response to the above
Commission Communication. The EP believes that proper application of the
existing rules by Member States and air carriers, enforcement of sufficient and
simple means of redress and providing passengers with accurate information
concerning their rights should be the cornerstones of regaining passengers’
trust. The EP regrets that the national enforcement bodies do not always ensure
effective protection of passenger rights. With regard to Regulation (EC) No 261/2004,
the EP asks the Commission to propose a clarification of the passengers'
rights, in particular the notion of ‘extraordinary circumstances’.
EU legislation must be in full conformity
with the Charter of Fundamental Rights[7].
More specifically, it follows from Article 38 that a high level of consumer
protection should be attained in all Union policies. Other relevant provisions
include the right to the protection of personal data (Article 8), the
prohibition of any form of discrimination and the integration of persons with
disabilities (Articles 21 and 26) and the right to an effective remedy and to a
fair trial (Article 47).
Case law has
had a decisive impact on the interpretation of the Regulation. In case C-344/04
(IATA), the ECJ confirmed its full compatibility with the Montreal Convention
and the complementarities between the two legal instruments. In case C-549/07
Wallentin-Herrman, the Court clarified when a technical problem in an aircraft should
not be regarded as an ‘extraordinary circumstance’. In the Sturgeon case (Joined
Cases C-402/07 and C-432/07), the ECJ held that a long delay of at least three
hours at arrival entitles passengers to compensation.
This
proposal aims to promote the interest of air passengers by ensuring that air
carriers comply with a high level of air passenger protection during travel
disruptions, while taking into account the financial implications for the air
transport sector and ensuring that air carriers operate under harmonised
conditions in a liberalised market.
2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENT
2.1.        Consultation process
A public consultation was carried out
between 19 December 2011 and 11 March 2012; 410
submissions were received. The results are available on the Commission's
website[8].
Moreover, a consultant undertook individual and more
detailed interviews and consultations with 98 stakeholders from all stakeholder
groups. 
Finally, on 30 May 2012, the Commission and
the European Economic and Social Committee co-organised a conference giving
stakeholders the opportunity to respond to the results of the public
consultation. The presentations and the minutes of the conference can be found
on the Commission's website[9].
The consumer and passenger
representatives mainly focused on poor compliance and inadequate
enforcement, especially with regard to financial compensation in case of delay.
Airlines and their associations mainly considered that the financial
cost of the Regulation is excessive, particularly that airlines face unlimited
liability for incidents which are not their fault (e.g. volcanic ash cloud
crisis in April 2010). The airlines heavily criticised the consequences of the
Sturgeon judgement as causing excessive costs. The views of the travel agent
and tour operator associations were similar to those of the airlines, but
with some notable exceptions such as in regard to the right to rerouting or to
the use of individual segments of a flight ticket ("no show" policy).
Airports expressed strong opposition towards being given any
responsibilities under the revised Regulation.
The national and sub-national
authorities that responded to the public consultation expressed views on
most issues which were similar to those of the consumer/passenger associations,
but were more sensitive to economic, budgetary and legal constraints.
2.2.        Impact assessment
The Commission has assessed four policy
options in view of improving the application and enforcement of air passenger
rights. They differ by the chosen trade-off between stronger enforcement and
adjusted economic incentives for airlines: a heavier cost is an incentive for
airlines for minimising costs of compliance and trying not to grant passengers
their rights. A stronger sanctioning policy is an incentive for compliance.
Therefore, for options where the cost imposed by the obligations of the
Regulation is higher, the enforcement policy must be stricter and better
coordinated, and vice versa.
Such a selection was considered because a
full focus on enforcement without addressing the economic disincentives for
compliance would require considerable public resources to be devoted to the
enforcement bodies.
Option 1: focus on economic incentives
(moderate change of enforcement): under option
1, enforcement is better coordinated, mainly via a better stream of information
between the NEBs and the Commission. The option mainly focuses on the reduction
of costs by replacing some of the obligations with regard to care (i.e. catering,
accommodation) by the obligation for airlines to propose optional insurance to
passengers.
Option 2: balancing stronger enforcement
policy with economic incentives: enforcement policy
is reinforced through stronger coordination of NEBs. NEBs would be required to
improve the information they provide to the Commission about their activities
and the Commission may request investigations, especially in cases involving
several Member States. Additional costs flowing from enhanced care and
assistance are compensated by adjustments in the global amount of financial
compensation. This can be achieved by reducing the frequency of compensation
payments via two variants:
·              
Variant 2a:
increasing the time threshold after which the passenger has a right to compensation
in case of delays from the current three hours to at least five;
·              
Variant 2b:
extending the scope of "extraordinary circumstances" to include most
technical defaults.
For both variants 2a and 2b, the impact
assessment report analyses whether an additional adjustment of the lump-sum
compensation amounts would be useful.
Under option 2, there would be a limit of 3
or 4 days on the obligation of accommodation in situations of extraordinary
events of long duration. To mitigate the impact on passengers, contingency
planning and a quicker rerouting are introduced.
Option 3: focus on enforcement: this option entirely focusses on stronger enforcement and
clarifies existing passenger rights to render their application more effective.

Option 4: centralised enforcement: option 4 entirely focuses on a fully centralised enforcement policy
which must counteract the negative incentives from the compliance cost: a
central EU enforcement body is therefore part of this option.
In options 3 and 4, an industry fund – financed
by a levy on every airline ticket - would ensure continued care in cases of extraordinary
events of long duration by reimbursing at least part of the costs airlines
incurred.
All policy options have some common
features such as:
·                        
the clarification of a number of issues (e.g. extraordinary
circumstances as mentioned above, rerouting obligations, care during tarmac
delays, rights in case of missed connections, etc.);
·                        
a functional separation of general enforcement
and of individual complaint handling where the latter may be taken charge of by
alternative dispute resolution bodies (ADR). Both, the air carriers and the
bodies in charge of individual complaints would be submitted to clear complaint
handling procedures (including maximum response times);
·                        
involvement of other market players: enhanced
possibility for recourse of airlines against third parties responsible for
disruptions; setting up of contingency plans among airport users.
The impact assessment concludes that option
2 is preferable over the others as it would most effectively and efficiently
enhance passengers' rights while taking into account the financial impact on
the air transport sector. Variant 2a is slightly preferred over 2b because
keeping the delay threshold too short (as in 2b) might lead to more
cancellations and because 2a ensures a better consistency between the right to
compensation and the right to reimbursement (both arise at the earliest after 5
hours). The impact assessment does not indicate a preference with regard to
further sub-variants of option 2a (i.e. adjusted compensation levels and/or
multiple time thresholds for delay compensation).
Compliance costs for air carriers would be
similar under option 2 compared to today's Regulation, but its upward potential
would be limited in case a growing proportion of passengers claim their
compensation or in an extraordinary event of long duration.
The Commission has decided to present a
proposal in line with the conclusion of the impact assessment, i.e.
corresponding to its option 2a, including a uniform 5-hour threshold for delay
compensation for all intra-EU journeys. With regard to the sub-options, the
proposal does not modify the compensation levels, but it introduces a longer threshold
for delay compensation for extra-EU journeys of more than 3500 km, given the specific
problems encountered by long-haul journeys to deal with the causes of delays
far from the air carrier's home base (9 hours for extra-EU journeys between 3500
and 6000 km and 12 hours for extra-EU journeys of 6000 km and more).
3.           LEGAL ELEMENTS OF THE PROPOSAL
3.1.        Legal basis
The proposal is based on Article 100(2)
TFEU.
3.2.        Subsidiarity and
proportionality
Firstly, there is limited scope for Member
States to act alone to protect consumers, as the Air Services Regulation (EC)
No 1008/2008[10]
does not allow Member States to place additional requirements on air carriers operating
intra-EU services.
Secondly, most of the
problems with air passenger rights refer to divergences of
application/enforcement of Regulations (EC) No 261/2004 and (EC) No 2027/97
across Member States weakening passengers' rights and affecting the
level-playing field between air carriers. Only coordinated EU intervention can address
these problems.
Furthermore, the proposal complies with the
proportionality principle. Any additional costs for economic operators and
national authorities are limited to those necessary to improve the application
and enforcement of passengers' rights. Cost increases related to the provision
of care and assistance or to compensation in case of long delays are offset by modifications
in the time thresholds giving rise to the right to compensation.
3.3.        Detailed explanation of
the proposal
3.3.1. Ensure effective and
consistent enforcement of passenger rights
The proposal aims to improve enforcement by
clarifying key principles and implicit passenger rights that have given rise to
many disputes between airlines and passengers in the past; and by enhancing and
better coordinating the enforcement policies carried out on a national level.
3.3.1.1. Clarification of key principles
·                        
Definition of "extraordinary
circumstances": the proposal clearly defines
the term in line with the European Court's decision in the case C-549/07
(Wallentin-Herman), i.e. circumstances which, by their nature or origin, are not
inherent in the normal exercise of the activity of the air carrier concerned
and are beyond its actual control. Furthermore, for further legal certainty,
the proposal introduces a non-exhaustive list of circumstances to be regarded
as extraordinary and of circumstances to be regarded as non-extraordinary
(Article 1(1e) of the proposal – Article 2(m) of the amended Regulation
261/2004 – and Annex 1).
·                        
Right to compensation in case of long delays: the proposal explicitly introduces the right to compensation in
case of long delays - as announced by the ECJ in the joined cases C-407/07 and
C-432/07 (Sturgeon) - into the text of Regulation (EC) No 261/2004. However, to
avoid an increase in cancellations (which are in general more inconvenient to
passengers), the time threshold after which the right to compensation arises is
proposed to be increased from three to five hours for all journeys within the
EU. While a single threshold is proposed for the EU, for journeys to/from third
countries, the threshold will be made dependent upon the journey distance to
take into account the practical problems encountered by air carriers when
addressing the causes of delays at remote airports (see below; paragraph 3.3.2)
(Article 1(5) of the proposal – Article 6(2) of the amended Regulation (EC) No 261/2004).
·                        
Right to rerouting: the proposal clarifies that if the air carrier cannot reroute the
passenger on its own services within 12 hours, it must consider other carriers
or other transport modes, subject to seat availability (Article 1(8) of the
proposal – Article 8(5) of the amended Regulation (EC) No 261/2004).
·                        
Right to care:
where currently the time threshold for care is dependent on the flight distance
(2, 3 or 4 hours), the proposal simplifies by introducing a single time
threshold of 2 hours for flights of all distances (Article 1(5) of the proposal
– Article 6(1)(i) of the amended Regulation (EC) No 261/2004).
·                        
Missed connecting flight: the proposal confirms that passengers that miss a flight
connection because their previous flight was delayed have a right to care (to
be provided by the operating air carrier of the missed flight which is best
positioned to provide this care) and, under certain circumstances, a right to
compensation (to be provided by the air carrier operating the delayed flight as
it was at the origin of the total delay). However, such right would only apply
where the connecting flights are part of a single contract of carriage as in
that case the air carriers concerned have committed to and are aware of the
intended connection between the flights. The air carriers retain the right to
agree on distributing costs between themselves (Article 1(6) of the proposal –
Article 6a of the amended Regulation (EC) No 261/2004).
·                        
Rescheduling: the
proposal confirms that passengers of flights rescheduled with a notice of
period of less than two weeks in advance of the originally scheduled time have
similar rights to delayed passengers (Article 1(5) of the proposal – Article 6
of the amended Regulation (EC) No 261/2004).
·                        
Tarmac delays:
the proposal clearly sets out the rights of passengers when their aircraft is
delayed on the tarmac, in particular a right to disembark after five hours (in
line with the right to reimbursement) (Article 1(5) of the proposal – Article
6(5) of the amended Regulation (EC) No 261/2004).
·                        
Partial ban of the "no show" policy: the proposal confirms that passengers may not be denied boarding
on a return journey of the same ticket on the grounds that they did not take
the outward journey. However, such ban does not affect the right of airlines to
impose particular rules with regard to the sequential use of flights within a
same journey. The Commission decided against a full ban of the "no
show" policy because it would impair airlines from offering indirect
flights at lower prices than direct flights and therefore hurt competition
(Article 1(3(b)) of the proposal – Article 4(4) of the amended Regulation (EC) No 261/2004).
·                        
Right to information: passengers should have a right to information about the flight
disruption as soon as the information is available (Article 1(13) of the
proposal – Article 14 of the amended Regulation (EC) No 261/2004).
3.3.1.2. Ensure effective and consistent
sanctioning
The proposal clarifies the role of the
National Enforcement Bodies (NEBs) by clearly allocating the role of general
enforcement to the NEBs while out-of-court handling of individual complaints
will be a role for complaint handling bodies which may become Alternative
Dispute Resolution Bodies (ADR) under the new ADR Directive[11]. Both types of bodies will
closely cooperate (Article 1(15) of the proposal – Articles 16 and 16a of the
amended Regulation (EC) No 261/2004).
The NEBs will adopt a more proactive
monitoring policy than today and their role will be extended to the
monitoring of compliance with the baggage provisions of Regulation (EC) No 2027/97 (and of the Montreal
Convention) (Article 2(4) of the proposal – Article 6b of the amended
Regulation (EC) No 2027/97).
The exchange of information and the
coordination between the NEBs, and between the NEBs and the Commission,
will be enhanced with reporting obligations and formal coordination procedures (Article
1(15) of the proposal – Article 16b of the amended Regulation (EC) No 261/2004).
3.3.1.3. Ensure effective handling of
individual claims and complaints
Under the proposal, air carriers should
inform passengers, at the time of reservation, about their claim and complaint
handling procedures, provide electronic means to submit complaints and give information
about competent complaint handling bodies. Airlines will be required to respond
within a deadline of two months to passengers (Article 1(15) of the proposal –
Article 16a of the amended Regulation (EC) No 261/2004).
3.3.2. Better take into account the
financial capacities of the air carriers
A limited number of measures aim to reduce
the most costly aspects of Regulation (EC) No 261/2004:
·                        
The right to compensation in case of delay will arise
after five hours for all journeys within the EU. For journeys to/from third
countries, to take into account the particular problems encountered by air
carriers to handle causes of delays at remote airports, these thresholds will
be made dependent upon the journey distance: 5 hours for extra-EU journeys of 3500
km or less, 9 hours for extra–EU journeys between 3500 and 6000 km, and 12
hours for extra-EU journeys of 6000 km and more (Article 1(5) of the proposal –
Article 6(2) of the amended Regulation (EC) No 261/2004).
·                        
In the case of delays and cancellations due to
extraordinary circumstances, the air carrier may limit the right to
accommodation to 3 nights with a maximum of EUR 100 per night and passenger
(Article 1(9) of the proposal – Article 9(4) of the amended Regulation (EC) No 261/2004). However, the impact on
passengers is mitigated by two additional measures: first, faster rerouting
should reduce the risk of passengers being stranded for so long (see above);
second, airports, air carriers and other actors in the air transport chain will
be required to set up contingency plans to optimise the care and assistance to stranded
passengers (Article 1(4) of the proposal – Article 5(5) of the amended
Regulation (EC) No 261/2004). Furthermore,
the limitation in the provision of accommodation does not apply to passengers
with reduced mobility (PRMs), those persons accompanying them, pregnant women,
persons in need of specific medical assistance and unaccompanied children -
provided they have pre-notified the air carrier 48 hours before the scheduled
time of departure (Article 1(11) of the proposal – Articles 11(3) and 11(4) of
the amended Regulation (EC) No 261/2004).
·                        
In view of the specificities of small-scale
(regional) operations, air carriers are not compelled to provide accommodation
to passengers of flights of less than 250 km on aircraft with a maximum
capacity of 80 seats (except on connecting flights). Again, this derogation
does not apply to PRM, persons accompanying them, pregnant women, persons in
need of specific medical assistance and unaccompanied children (Articles 1(9)
and 1(11) of the proposal – Articles 9(5), 11(3) and 11(4) of the amended
Regulation 261/2004).
·                        
The proposal specifies that national law may not
restrict the air carriers' right to seek compensation from third parties
responsible for delays or cancellations (Article 1(12) of the proposal –
Article 13 of the amended Regulation (EC) No 261/2004).
3.3.3. Ensure better enforcement of
passenger rights with regard to mishandled baggage
Taking into account the UN Convention on
the Rights of Persons with Disabilities and the Charter of Fundamental Rights
(Articles 21 and 26), passengers with reduced mobility should have the
same right to free movement, freedom of choice and non-discrimination as other
citizens.
The liability of air carriers with regard
to mobility equipment will be increased up to the actual value of the
equipment. This is achieved, in conformity with the Montreal Convention, by
compelling air carriers to automatically offer the option to make a special
declaration of interest laid out within the Convention, at no additional cost
(Article 2(4) of the proposal – Article 6a of the amended Regulation (EC) No 2027/97).
The proposal enhances the transparency with
regard to baggage allowances. It explicitly requires air carriers to
clearly indicate the cabin and hold baggage allowances, at booking and at the
airport (Article 2(4) of the proposal – Article 6d of the amended Regulation (EC) No 2027/97).
The proposal includes measures with regard
to musical instruments. It compels air carriers to accept small
instruments inside the passenger cabin, subject to certain conditions, and to
clarify their rules with regard to the carriage of larger instruments in the cargo
compartment (Article 2(4) of the proposal – Article 6e of the amended Regulation
(EC) No 2027/97).
Taking into consideration the strict time
limits of the Montreal Convention within which passengers can submit claims
for mishandled baggage to air carriers, it is proposed that air carriers
issue a claim form at the airport where passengers can complain about delayed,
damaged or lost baggage (such as the common Property Irregularity Report or
PIR) and then to accept this as a claim for the purposes of Regulation (EC) No 2027/97 and the Montreal Convention
(Article 2(1) of the proposal – Article 3(2) of the amended Regulation (EC) No 2027/97).
Under the proposal, the National
Enforcement Bodies designated under Regulation 261/2004 will also be
responsible for the enforcement of the provisions of Regulation 2027/97
that relate to the rights of passengers with regard to delayed, lost or damaged
baggage (Article 2(4) of the proposal – Article 6b of the amended Regulation (EC) No 2027/97).
3.3.4. Adapt liability limits in
accordance to general price inflation
Regulation (EC) No 2027/97, as amended by Regulation (EC) No 889/2002, introduces the Montreal Convention into EU law and extends
its scope to domestic flights (in addition to international flights). The
Convention sets limits of liability with respect to the carriage of passengers,
baggage and cargo, which have been revised upwards by 13.1% with effect from 30
December 2009. The present proposal updates the limits in the EU Regulation to
take into account these revised amounts in the Convention (Articles 2(2) and
2(3) and annex 2 of the proposal – Articles 5(2) and 6(1) and the annex of the
amended Regulation 2027/97).
4.           Budgetary implication
The proposal has no implications for the
EU budget.
2013/0072 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
amending Regulation (EC) No 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 and
Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage
of passengers and their baggage by air 
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 100(2) thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[12],

Having regard to the opinion of the
Committee of the Regions[13],
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)       Regulation (EC) No
261/2004 of the European Parliament and of the Council of 11 February 2004
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[14],
and Regulation (EC) No 2027/97 of the Council of 9 October 1997 on air carrier
liability of the carriage of passengers and their baggage by air[15] have significantly contributed
to protecting the rights of air passengers when their travel plans are
disrupted by denied boarding, long delays, cancellations or mishandled baggage.
(2)       A number of shortcomings
revealed during the implementation of the rights under the Regulations, have
however prevented their full potential in terms of passenger protection from
being realised. In order to ensure a more effective, efficient and consistent
application of air passenger rights across the Union, a series of adjustments
to the current legal framework is required. This was underlined in the
Commission 2010 EU Citizenship Report on dismantling obstacles to EU citizens'
rights[16]
which announced measures to ensure a set of common rights notably for air
passengers and the adequate enforcement of these rights.
(3)       In order to increase legal
certainty for air carriers and passengers, a more precise definition of the
concept of "extraordinary circumstances" is needed, which takes into
account the judgement of the European Court of Justice in the case C-549/07
(Wallentin-Hermann). Such a definition should be further clarified via a non-exhaustive
list of circumstances that are clearly identified as extraordinary or not.
(4)       In the case C-173/07
(Emirates), the European Court of Justice held that the concept of ‘flight’
within the meaning of Regulation No 261/2004 must be interpreted as consisting
essentially of an air transport operation, as a ‘unit’ of such transport,
performed by an air carrier which fixes its itinerary. In
order to avoid uncertainty, a clear definition of a "flight" should
now be provided, as well as for the associated notions of "connecting
flight" and "journey".
(5)       In the case C-22/11
(Finnair), the European Court decided that the concept of ‘denied boarding’
must be interpreted as relating not only to cases where boarding is denied
because of overbooking but also to those where boarding is denied on other
grounds, such as operational reasons. Given this confirmation, there is no
reason to modify the current definition of "denied boarding".
(6)       Regulation
(EC) No 261/2004 also applies to passengers that have
booked their air transport as part of a package travel. However, it should be
clarified that passengers may not cumulate corresponding rights, in particular
under both this Regulation and Council Directive 90/314/EEC of 13 June 1990 on
package travel, package holidays and package tours[17]. The passengers should be able
to choose under which law they introduce their claims, but should not have the
right to cumulate compensation for the same problem under both legal acts. Passengers
should not be concerned about how air carriers and tour operators allocate such
claims between them.
(7)       In order to improve levels
of protection, passengers should not be denied boarding on the return journey
of a two-way (return) ticket because they have not taken the outward journey.
(8)       At present, passengers are
sometimes penalised for spelling errors in their names by the application of punitive
administrative fees. Reasonable corrections of booking errors should be provided
free of charge provided they do not imply a change of times, date, itinerary or
passenger.
(9)       It should be clarified
that in cases of cancellation the choice between receiving reimbursement,
continuation of travel by rerouting or travel at a later date is the decision
of the passenger and not that of the air carrier.
(10)     Airports and airport users
such as air carriers and ground handling companies should cooperate to minimise
the impact of multiple flight disruptions on passengers by ensuring their care
and rerouting. To this end, they should prepare contingency plans for such
occurrences and work together in the development of such plans.
(11)     Regulation (EC) No 261/2004
should explicitly include the right to compensation for passengers suffering
long delays, in line with the judgement of the European Court of Justice in the
Joined cases C-402/07 and C-432/07 (Sturgeon). At the same time, the thresholds
above which delays give rise to a right to compensation should be increased to
take account of the financial impact on the sector and to avoid any increase in
the frequency of cancellations as a consequence. To ensure that citizens
travelling within the EU face homogenous conditions for compensation, the threshold
should be the same for all travel within the Union, but it should depend upon
the journey distance for travel to and from third countries to take into
account the operational difficulties encountered by air carriers to deal with
delays on remote airports.
(12)     To ensure legal certainty,
Regulation (EC) No 261/2004 should explicitly confirm that the changing of
flight schedules has a similar impact on passengers to long delays and should
therefore give rise to similar rights.
(13)     Passengers missing a
connecting flight should be properly cared for while waiting for rerouting. In
line with the principle of equal treatment, such passengers should be able to
claim compensation on a similar basis to passengers whose flights are delayed
or cancelled in light of the delay upon reaching the final destination of their
journey.
(14)     In order to enhance
passenger protection, it should be clarified that delayed passengers enjoy
rights to care and compensation irrespective of whether they are waiting in the
airport terminal or are already seated on board the aircraft. However, as the
latter have no access to the services available in the terminal, their rights
should be reinforced with regard to basic needs and with regard to the right to
disembark.
(15)     Where a passenger has taken
up the choice of rerouting at the earliest possibility, the air carrier often
makes the rerouting conditional upon the availability of seats on its own
services, thereby denying their passengers the option of being rerouted more
quickly by alternative services. It should be established that after a certain period
of time has elapsed, the carrier should offer rerouting on another carrier's
services or on other transport modes where this can speed up rerouting.
Alternative rerouting should be dependent upon the availability of seats.
(16)     Air carriers currently face
unlimited liability for the accommodation of their passengers in the case of
extraordinary circumstances of long duration. This uncertainty linked with the
absence of any foreseeable limit in time may risk endangering a carrier's
financial stability. An air carrier should therefore be able to limit the
provision of care after a certain duration of time. Moreover, contingency
planning and speedy rerouting should lessen the risk of passengers being
stranded for long periods.
(17)     The implementation of
certain passenger rights, in particular the right to accommodation, has been
shown to be out of proportion to air carriers' revenues for certain small-scale
operations. Flights performed by small aircraft on short distances should
therefore be exempted from the obligation to pay for accommodation, although
the carrier should still help the passenger to find such accommodation.
(18)     For disabled persons,
persons with reduced mobility and other persons with special needs such as
unaccompanied children, pregnant women and persons in need of specific medical
attention, it may be more difficult to arrange accommodation when flight
disruptions occur. Therefore, any limitations on the right for accommodation in
cases of extraordinary circumstances or for regional operations should not
apply to these categories of passenger.
(19)     The reasons behind the
current level of long delays and cancelled flights in the EU are not
attributable solely to air carriers. In order to incentivise all actors in the
aviation chain to seek efficient and timely solutions to minimise the
inconvenience that long delays and cancellations cause to passengers, air
carriers should have the right to seek redress from any third party which
contributed to the event triggering compensation or other obligations.
(20)     Passengers should not only
be correctly informed about their rights in cases of flight disruption, but
they should also be adequately informed about the cause of the disruption
itself, as soon as the information becomes available. This information should
also be provided where the passenger has acquired the ticket through an
intermediary established in the Union.
(21)     In order to ensure a better
enforcement of passenger rights, the role of the National Enforcement Bodies
should be more precisely defined and clearly distinguished from the handling of
individual passenger complaints.
(22)     Passengers should be
adequately informed about the relevant procedures for submitting claims and
complaints to air carriers and should receive a reply within a reasonable time
period. Passengers should also have the option to complain about air carriers
via out-of-court measures. However, since the right to an effective remedy
before a tribunal is a fundamental right recognised in Article 47 of the
Charter of Fundamental Rights of the European Union, those measures should
neither prevent nor hinder passengers' access to courts.
(23)     In case C-139/11 (Moré vs
KLM), the European Court of Justice clarified that the time-limits for bringing
actions for compensation are determined in accordance with the national rules
of each Member State.
(24)     A regular flow of
information between the Commission and enforcement bodies would enable the
Commission to better fulfil its monitoring and coordinating role of the
national bodies and to support them.
(25)     In order to ensure uniform
conditions for the implementation of Regulation (EC) No 261/2004, implementing
powers should be conferred to the Commission. These powers should be exercised
in accordance with Regulation (EC) No 182/2011 of the European Parliament and
of the Council of 16 February 2011 laying down the rules and general principles
concerning mechanisms for control by the Member States of the Commission's
exercise of implementing powers[18].
(26)     The advisory procedure
should be used for adopting implementing decisions with regard to the content
of the activity reports provided by the Member States to the Commission.
(27)     In order to ensure that the
damage to or loss of mobility equipment is compensated to its full value, air
carriers should offer free of charge to persons with reduced mobility the
opportunity to make a special declaration of interest, which pursuant to the
Montreal Convention, allows them to seek full compensation for loss or damage.
(28)     Passengers are sometimes
confused about the baggage they are allowed to take on board, in terms of
dimensions, weight or number of items. In order to ensure that passengers are
fully aware of the baggage allowances included in their ticket, both for cabin
and hold baggage, air carriers should clearly indicate these allowances at
booking and at the airport.
(29)     Musical instruments should
as far as possible be accepted as baggage within the passenger cabin and, where
this is not possible, should where possible be carried under the appropriate
conditions in the cargo compartment of the aircraft. Regulation (EC) No 2027/97
should be amended accordingly.
(30)     In order to ensure the
correct and consistent application of the rights conferred to passengers by
Regulation (EC) No 2027/97, the National Enforcement Bodies designated under
Regulation (EC) No 261/2004 should also monitor and enforce the rights under
Regulation (EC) No 2027/97.
(31)     Given the short deadlines
for the submission of complaints for lost, damaged or delayed baggage, air
carriers should give passengers the possibility to submit a complaint by
providing a complaint form at the airport. This could also take the form of the
common Property Irregularity Report (PIR).
(32)     Article 3(2) of Regulation (EC)
No 2027/97[19]
has become obsolete as insurance matters are now regulated by Regulation (EC)
No 785/2004. It should accordingly be deleted.
(33)     It is necessary that the
monetary limits expressed in Regulation (EC) No 2027/97 should be amended in
order to take into account economic developments, as reviewed by the
International Civil Aviation Organization (ICAO) in 2009 pursuant to Article
24(2) of the Montreal Convention.
(34)     In order to ensure the
continued correspondence between Regulation (EC) No 2027/97 and the Montreal
Convention, the power to adopt acts in accordance with Article 290 of the
Treaty on the Functioning of the European Union should be delegated to the
Commission. This power will allow the Commission to amend the monetary limits
expressed in Regulation (EC) No 2027/97 in case they are adapted by the
International Civil Aviation Organization (ICAO) pursuant to Article 24(2) of
the Montreal Convention.
(35)     This Regulation should
respect fundamental rights and observe the principles recognised in particular
by the Charter of Fundamental Rights of the European Union, notably consumer
protection, the right to protection of personal data, the prohibition of any
form of discrimination and the integration of persons with disabilities, the
right to an effective remedy and to a fair trial.
HAVE ADOPTED THIS REGULATION:
Article 1
Regulation 261/2004 is amended as follows:
1.           Article 2 is amended as
follows:
(a)                   
The definition in point (c) is replaced by the
following:
'«Community air carrier» means an air carrier
with a valid operating licence granted by a Member State in accordance with the
provisions of Regulation (EC) No 1008/2008 of 24 September 2008 on common rules
for the operation of air services in the Community[20].'
(b)                   
The definition in point (d) is replaced by the
following:
'«Organiser» means a person within the meaning
of Article 2(2) of Council Directive 90/314/EEC of 13 June 1990 on package
travel, package holidays and package tours[21];
(c)                   
The definition in point(i) is replaced by the
following:
'«person with reduced mobility» means any
person as defined in Article 2(a) of Regulation (EC) No 1107/2006 concerning
the rights of disabled persons and persons with reduced mobility when
travelling by air[22].'
(d)                   
The following sentence is added to the
definition of "cancellation" in point (l):
'A flight where the aircraft took off but, for
whatever reason, was subsequently forced to land at an airport other than the
airport of destination or to return to the airport of departure, shall be
considered a cancelled flight.'
(e)                   
The following definitions are added: 
'(m)   «extraordinary circumstances» means circumstances
which, by their nature or origin, are not inherent in the normal exercise of
the activity of the air carrier concerned and are beyond its actual control.
For the purposes of this Regulation, extraordinary circumstances shall include
the circumstances set out in the Annex;
(n)     «flight» means an air transport
operation between two airports; intermediate stops for technical and
operational purposes only shall not be taken into consideration;
(o)     «connecting flight» means a flight
which, under a single contract of carriage, is intended to enable the passenger
to arrive at a transfer point in order to depart on another flight, or, where
appropriate in the context, means that other flight departing from the transfer
point. 
(p)     "journey" means a flight or
a continued series of connecting flights transporting the passenger from an
airport of departure to his final destination in accordance with the contract
of carriage;
(q)     «airport» means any area specifically
adapted for the landing, taking-off and manoeuvring of aircraft, including the
ancillary installations which these operations may involve for the requirements
of aircraft traffic and services, including the installations needed to assist
commercial air services;
(r)      «airport managing body» means a body
which, in conjunction with other activities or not as the case may be, has as
its objective under national laws, regulations or contracts the administration
and management of the airport or airport network infrastructures and the
coordination and control of the activities of the different operators present
in the airports or airport network concerned;
(s)     « ticket price" means the full
price paid for a ticket and including the air fare, and all applicable taxes,
charges, surcharges and fees paid for all optional and non-optional services
included in the ticket;
(t)      "flight price" means the
value obtained by multiplying the ticket price by the ratio between the
distance of the flight and the total distance of the journey(s) covered by the
ticket;
(u)     «time of departure» means the time
when the aircraft leaves the departure stand, pushed back or on its own power
(off-block time);
(v)     «time of arrival» means the time when
the aircraft reaches the arrival stand and the parking brakes are engaged (in-block
time);
(w)    «tarmac delay» means, at departure, the
time the aircraft remains on the ground between the start of boarding of the
passengers and the take-off time of the aircraft or, at arrival, the time
between the touch-down of the aircraft and the start of disembarkation of the
passengers;
(x)     "night" means the period
between midnight and 6 a.m.,
(y)     "unaccompanied child" means
a child who travels without an accompanying parent or guardian and where the
air carrier has accepted responsibility for care in accordance with its
published rules.'
2.           Article 3 is amended as
follows:
(a)                   
Paragraph 2 is replaced by the following:
'Paragraph 1 shall apply on the condition that
passengers:
(a) have a confirmed reservation on the flight
concerned and, except in the case of cancellation referred to in Article 5 and
in the case of change of schedule referred to in Article 6, present themselves
for boarding,
- as stipulated and at the time indicated in
advance and in writing (including by electronic means) by the air carrier, the organiser
or an authorised travel agent,
or, if no time is indicated,
- not later than 45 minutes before the
scheduled departure time; or
(b) have been transferred by an air carrier or organiser
from the flight for which they held a reservation to another flight,
irrespective of the reason.'
(b)                   
Paragraph 4 is replaced by the following:
'4. Without prejudice to Article 8(6), this
Regulation shall only apply to passengers transported by motorised fixed wing
aircraft. However, where a part of the journey is carried out, in accordance
with a contract of carriage, by another mode of transport or by helicopter,
this Regulation shall apply for the whole journey and the part of the journey
carried out by another mode of transport shall be considered as a connecting
flight for the purposes of this Regulation.'
(c)                   
Paragraph 6 is replaced by the following:
'6. This Regulation shall also apply to
passengers transported according to package travel contracts but shall not
affect the rights of passengers under Council Directive 90/314/EEC. The
passenger shall be entitled to present claims under this Regulation and under Council
Directive 90/314/EEC, but may not in relation to the same facts cumulate rights
under both legal acts if the rights safeguard the same interest or have the
same objective. This Regulation shall not apply in cases where a package tour
is cancelled or delayed for reasons other than cancellation or delay of the
flight.'
3.           Article 4 is amended as
follows:
(a)                   
Paragraph 3 is replaced by the following:
'3. If boarding is denied to passengers against
their will, the operating air carrier shall immediately compensate them in
accordance with Article 7 and assist them in accordance with Article 8. Where
the passenger opts for rerouting at the earliest opportunity pursuant to
Article 8(1)(b) and where the departure time is at least two hours after the
initial departure time, the operating carrier shall assist the passenger in
accordance with Article 9.'
(b)                   
The following two paragraphs are added:
'4. Paragraphs 1, 2 and 3 shall also apply to
return tickets where the passenger is denied boarding at the return journey on
the grounds that he/she did not take the outward journey or did not pay an
additional charge for this purpose.
5. Where the passenger, or an intermediary
acting on behalf of the passenger, reports a spelling mistake in the name of
one or several passengers included in the same contract of carriage that may
lead to a denial of boarding, the air carrier shall correct this at least once
up until 48 hours before departure without any additional charge to the
passenger or the intermediary, except where it is prevented from doing so by
national or international law.'
4.           Article 5 is amended as
follows:
(a)                   
Paragraph 1, points (a) and (b) are replaced by
the following:
'(a) be offered by the operating air carrier
the choice between reimbursement, continuation of their travel by rerouting or
travel at a later date, in accordance with Article 8; and
'(b) be offered by the operating air carrier in
the event of re-routing when the reasonably expected time of departure of the
flight is at least 2 hours after the planned departure of the cancelled flight,
the care specified in Article 9 and'
(b)                   
Paragraph 3 is replaced by the following:
'3. An operating air carrier shall not be
obliged to pay compensation in accordance with Article 7 if it can prove that
the cancellation is caused by extraordinary circumstances and that the
cancellation could not have been avoided even if all reasonable measures had
been taken. Such extraordinary circumstances can only be invoked in so far they
affect the flight concerned or the previous flight operated by the same
aircraft. '
(c)                   
The following paragraph 5 is added:
'5. At airports whose
annual traffic has been not less than three  million passengers for at least three consecutive years, the
airport managing body shall ensure that the operations of the airport and of
airport users, in particular the air carriers and the suppliers of ground
handling services, are coordinated through a proper contingency plan in view of
possible situations of multiple cancellations and/or delays of flights leading
to a considerable number of passengers stranded at the airport, including in
cases of airline insolvency or revocation of the operating licence. The
contingency plan shall be set up to ensure adequate information and assistance
to the stranded passengers. The managing body of the airport shall communicate
the contingency plan and any amendments to it to the National Enforcement Body designated pursuant to Article 16. At airports below
the above-mentioned threshold, the airport management body shall make all
reasonable efforts to coordinate airport users and to assist and inform
stranded passengers in such situations.
5.           Article 6 is replaced by
the following:
‘Article
6
Long
delay
1.       When an operating air carrier
reasonably expects a flight to be delayed, or an operating carrier postpones the
scheduled time of departure, beyond its originally scheduled time of departure,
passengers shall be offered by the operating air carrier:
(i)       when the delay is of at least two
hours, the assistance specified in Article 9(1)(a) and 9(2); and
(ii)      when the delay is of at least five
hours and includes one or several nights, the assistance specified in Article
9(1)(b) and 9(1)(c); and
(iii)     when the delay is of at least five
hours, the assistance specified in Article 8(1)(a).
2.       Passengers shall have a right to
compensation from the operating air carrier in accordance with Article 7 where
the passenger arrives at its final destination:
(a) five hours or more after the scheduled time
of arrival for all intra-Community journeys and for journeys to/from third
countries of 3500 kilometres or less;
(b) nine hours or more after the scheduled time
of arrival for journeys to/from third countries between 3500 and 6000
kilometres;
(c) twelve hours or more after the scheduled
time of arrival for journeys to/from third countries of 6000 kilometres or more.
3.       Paragraph 2 shall also apply where the
operating air carrier has modified the scheduled times of departure and arrival
causing a delay compared to the time of arrival of the original schedule,
unless the passenger was informed of the schedule change more than fifteen days
in advance of the originally scheduled time of departure.
4.       An operating air carrier shall not be
obliged to pay compensation in accordance with Article 7, if it can prove that
the delay or change of schedule is caused by extraordinary circumstances and
that the delay or change of schedule could not have been avoided even if all
reasonable measures had been taken. Such extraordinary circumstances can only
be invoked insofar they affect the flight concerned or the previous flight
operated by the same aircraft.
5.       Subject to safety constraints, where a
tarmac delay exceeds one hour, the operating air carrier shall provide free of
charge access to toilet facilities and drinking water, shall ensure adequate
heating or cooling of the passenger cabin, and shall ensure that adequate
medical attention is available if needed. Where a tarmac delay reaches a maximum
of five hours, the aircraft shall return to the gate or another suitable
disembarkation point where passengers shall be allowed to disembark and to
benefit from the same assistance as specified in paragraph 1, unless there are
safety-related or security-related reasons why the aircraft cannot leave its
position on the tarmac.'
6.           The following Article is
inserted:
‘Article
6a
Missed
connecting flight
1.       Where a passenger misses a connecting
flight as a result of a delay or change of schedule to a preceding flight, the Community
air carrier operating the onward connecting flight shall offer the passenger:
(i) the assistance specified in Article 9(1)(a)
and 9(2) if the passenger's waiting time for the connection is prolonged by at
least two hours; and
(ii) re-routing as specified in Article
8(1)(b); and
(iii) when the scheduled time of departure of
the alternative flight or other transport offered under Article 8 is at least 5
hours after the scheduled time of departure of the flight missed and the delay includes
one or several nights, the assistance specified in Article 9(1)(b) and 9(1)(c).
2.       Where a passenger misses a connecting
flight as a result of a delay to a preceding connecting flight, the passenger
shall have a right to compensation by the Community air carrier operating that preceding
flight in accordance with Article 6(2). For these purposes, the delay shall be
calculated by reference to the scheduled time of arrival at the final
destination.
3. Paragraph 2 shall be without prejudice to any
indemnity arrangements made between affected air carriers.
4. Paragraphs 1 and
2 apply also to third country air carriers operating a connecting flight to or
from an EU airport.'
7.           Article 7 is amended as
follows:
(a)                   
In Paragraph 1, the word "flights" is
replaced by "journeys".
(b)                   
Paragraphs 2, 3 and 4 are replaced by the
following:
2. Where the passenger has opted for the continuation
of his travel pursuant to Article 8(1)(b), the right to compensation can arise only
once during his travel to the final destination, even if a new cancellation or
missed connection should arise during rerouting.
3. The compensation referred to in paragraph 1
shall be paid in cash, by electronic bank transfer, bank orders or bank
cheques. 
4. The distances given in paragraph 1 shall be
measured by the great circle route method.
5. The air carrier may reach a voluntary
agreement with the passenger that replaces the compensation provisions set out
in paragraph 1, provided that this agreement is confirmed by a document signed
by the passenger which reminds the passenger of his rights to compensation
under this Regulation.'
8.           Article 8 is replaced by
the following:
‘Article
8
Right
to reimbursement or re-routing
1. Where reference is made to this Article,
passengers shall be offered, free of charge, the choice between three options:
(a)      - reimbursement within seven days of
the passenger's request, by the means provided for in Article 7(3), of the flight
price, for the part or parts of the journey not made, and for the part or parts
already made if the flight is no longer serving any purpose in relation to the
passenger's original travel plan, together with, when relevant,
- a return flight to the first point of
departure, at the earliest opportunity;
(b)     continuation of the passengers' travel
plans by re-routing them, under comparable transport conditions, to their final
destination at the earliest opportunity; or
(c)      re-routing, under comparable transport
conditions, to their final destination at a later date at the passenger's
convenience, subject to availability of seats.
2. Paragraph 1(a) shall also apply to
passengers whose flights form part of a package, except for the right to
reimbursement where such right arises under Directive 90/314/EEC.
3 If an operating air carrier offers a
passenger a flight to or from an airport alternative to that for which the
reservation was made, the operating air carrier shall bear the cost of
transferring the passenger from that alternative airport to that for which the
reservation was made, or, with regard to the destination airport, to another neighbouring
destination agreed with the passenger.
4. Where agreed by the passenger, the return
flight or flights referred to in paragraph 1(a) or the re-routing referred to
in paragraph 1(b) or 1(c) may use services operated by another air carrier,
involve a different routing, or use another mode of transport.
5. Where passengers choose the option referred
to in paragraph 1(b), they shall, subject to availability, have the right to
re-routing via another air carrier or another mode of transport where the
operating air carrier cannot transport the passenger on its own services and in
time to arrive at the final destination within 12 hours of the scheduled
arrival time. Notwithstanding Article 22(1) of Regulation (EC) No 1008/2008[23], the other
air carrier or other transport operator shall not charge the contracting
carrier a price that goes beyond the average price paid by its own passengers
for equivalent services in the last three months.
6. Whenever passengers are offered, pursuant to
paragraph 1, a total or partial rerouting by another mode of transport, this
Regulation shall apply to the transport carried out by that other mode of
transport as if it were carried out by fixed wing aircraft.'
9.           Article 9 is amended as
follows:
(a)                   
Paragraph 1, point c is replaced by the
following:
'(c) transport between the airport and place of
accommodation (hotel, place of residence of the passenger or other)'
(b)                   
The following paragraphs are added:
'4. If the operating air carrier can prove that
the cancellation, delay or change of schedule is caused by extraordinary
circumstances and that the cancellation, delay or change of schedule could not
have been avoided even if all reasonable measures had been taken, it may limit
the total cost of accommodation provided according to paragraph 1(b) to EUR 100
per night and per passenger and to a maximum of 3 nights. If the operating air
carrier chooses to apply this limitation, it shall nevertheless provide the
passengers with information about available accommodation after the three
nights, in addition to the continued obligations for information specified in
Article 14.
5. The obligation to offer accommodation under
paragraph 1(b) shall not apply where the flight concerned is of 250 km or less
and scheduled to be operated by an aircraft with a maximum capacity of 80 seats
or less, except where the flight is a connecting flight. If the operating air carrier
chooses to apply this exemption, it shall nevertheless provide the passengers with
information about available accommodation.
6. Where a passenger opts for reimbursement
pursuant to Article 8(1)(a) while being at the departure airport of his
journey, or opts for rerouting at a later date pursuant to Article 8(1)(c), the
passenger shall have no further rights with regard to care under Article 9(1) in
relation to the relevant flight.'
10.         In paragraph 2, points (a),
(b) and (c) of Article 10, the term 'price of the ticket' is replaced by
'flight price'.
11.         The following paragraph is
added to Article 11:
'3. The operating air carrier shall not apply
the limitations set out in Articles 9(4) and 9(5) if the passenger is a person
with reduced mobility or any person accompanying him/her, an unaccompanied
child, a pregnant woman or a person in need of specific medical assistance, on
condition the air carrier or its agent or the organiser has been notified of
their particular needs for assistance at least 48 hours before the scheduled time
of departure of the flight, Such notification shall be deemed to cover the
entire journey and the return journey if both journeys have been contracted
with the same air carrier.'
12.         Article 13 is replaced by
the following:
‘Article
13
Right
of redress
In cases where an operating air carrier pays
compensation or meets the other obligations incumbent on it under this
Regulation, no provision of this Regulation or of national law may be
interpreted as restricting its right to seek compensation for the costs
incurred under this Regulation from any third parties which contributed to the
event triggering compensation or other obligations.'
13.         Article 14 is replaced by
the following:
‘Article
14
Obligations
to inform passengers
1. The airport managing body and the operating air
carrier shall ensure that at the check-in desks (including at self-service
check-in machines) and at the boarding gate, a clearly legible notice containing
the following text is displayed in a manner clearly visible to passengers: «If
you are denied boarding or if your flight is cancelled or delayed for at least
two hours, ask at the check-in counter or boarding gate for the notice stating
your rights, particularly with regard to assistance and possible compensation».
2. An operating air carrier denying boarding or
cancelling a flight shall provide each passenger affected with a written notice
setting out the rules for compensation and assistance in line with this
Regulation, including information on possible limitations pursuant to Articles
9(4) and 9(5). It shall also provide each passenger affected by a delay or a
change of schedule of at least two hours with an equivalent notice. The contact
details of the competent complaint handling bodies designated under Article 16a
shall also be given to the passenger in written form.
3. In respect of blind and visually impaired
persons, the provisions of this Article shall be applied using appropriate
alternative means.
4. The airport managing body shall ensure that
general information on passenger rights is clearly and visibly displayed within
the passenger areas of the airport. It shall also ensure that passengers
present at the airport are informed about the cancellation of their flight and about
their rights in case the airline unexpectedly ceases operations as in the case
of insolvency or revocation of its operating licence.
5. In the event of cancellation or delay in
departure, passengers shall be informed by the operating air carrier of the
situation as soon as possible and in any event no later than 30 minutes after
the scheduled departure time, and of the estimated departure time as soon as
this information is available, provided the air carrier has received the
passenger's contact details in accordance with paragraphs 6 and 7 in case the
ticket was acquired via an intermediary.
6. Where the passenger does not acquire a ticket
directly from the operating air carrier, but via an intermediary established within
the Union, this intermediary shall provide the passenger's contact details to
the air carrier, on condition that the passenger has given his explicit and
written authorisation. This authorisation may only be given on an
"opt-in" basis. The air carrier may use these contact details
exclusively for the purpose of fulfilling the information obligation under this
Article and not for marketing purposes and shall delete the contact details
within 72 hours after the completion of the contract of carriage. The processing,
access and storage of these data shall be undertaken in accordance with
Directive 95/46/EC of the European Parliament and of the Council on the
protection of individuals with regard to the processing of personal data and on
the free movement of such data[24].

7. An intermediary shall be exempted from
paragraph 6 if it can prove the existence of an alternative system that ensures
that the passenger is informed without the transmission of the relevant contact
details.'
14.         Article 16 is replaced by the
following:
‘Article
16
Enforcement
1. Each Member State shall designate a National
Enforcement Body responsible for the enforcement of this Regulation as regards
flights from airports situated on its territory and flights from a third
country to such airports. The Member States shall inform the Commission of the
body that has been designated in accordance with this paragraph.
2. The National Enforcement Body shall closely
monitor compliance with the requirements of this Regulation and take the
measures necessary to ensure that the rights of passengers are respected. For
this purpose, air carriers and airport managing bodies shall provide the
relevant documents to the National Enforcement Body at its request. In order to
carry out its functions, the National Enforcement Body shall also take account
of the information submitted to it by the body designated under Article 16a. It
may also decide on enforcement actions based on individual complaints
transmitted by the body designated under Article 16a.
3. The sanctions laid down by Member States for
infringements of this Regulation shall be effective, proportionate and
dissuasive.
4. Where the bodies designated under Articles
16 and 16a differ, reporting mechanisms shall be set up to ensure the exchange
of information between the various bodies in order to help the National
Enforcement Body to carry out its tasks of supervision and enforcement and for
the body designated under Article 16a to collect the information necessary to
examine individual complaints.
5. For each year, at the latest at the end of
April of the following calendar year, the National Enforcement Bodies shall
publish statistics on their activity, including on sanctions applied.
6. Air carriers shall communicate their contact
details, for matters covered by this Regulation, to the National Enforcement
Bodies of the Member States in which they operate.'
15.         The following Articles are inserted:
‘Article
16a
Passenger
claims and complaints
1. At the time of reservation, air carriers
shall provide information to passengers on their claim and complaint handling processes
in relation to the rights set out in this Regulation and on the relevant
contact addresses, to which passengers can submit claims and complaints,
including via electronic means of transmission. The air carrier shall also
inform passengers of the body or bodies competent for handling passenger
complaints.
2. If a passenger wants to make a complaint to
the air carrier with regard to his rights under this Regulation, he shall
submit it within 3 months from the date on which the flight was performed or
was scheduled to be performed. Within 7 days of receiving the complaint, the
carrier shall confirm the receipt of the complaint to the passenger. Within two
months of receiving the complaint, the carrier shall provide a full answer to
the passenger. 
3. In accordance with relevant EU and national
law, each Member State shall designate a national body or bodies responsible
for the out-of-court resolution of disputes between air carriers and passengers
with regard to the rights covered by this Regulation.
4. Each passenger may complain to any national body
designated under paragraph 3, about an alleged infringement of this Regulation
at any airport situated on the territory of a Member State or concerning any
flight from a third country to an airport situated on that territory. Such
complaints may be submitted at the earliest two months after a complaint was
submitted to the concerned carrier unless the carrier has already provided a
final reply to such complaint.
5. Within 7 days of receiving the complaint,
the designated body shall confirm receipt of the complaint and shall send a
copy to the appropriate National Enforcement Body. The time taken to provide
the final reply to the complainant shall not be longer than three months from
the receipt of the complaint. A copy of the final reply shall also be provided
to the National Enforcement Body.
Article
16b
Cooperation
between Member States and the Commission
1. The Commission shall support dialogue between
Member States concerning national interpretation and application of this
Regulation through the Committee referred to in Article 16c.
2. Member States shall provide annually a
report on their activities to the Commission, at the latest at the end of April
of the following calendar year. The Commission may
decide on the issues to be addressed in these reports via
implementing acts. Those implementing acts shall be adopted in accordance with
the procedure referred to in Article 16c.
3. The Member States shall regularly send
relevant information concerning the national interpretation and application of
the Regulation to the Commission, which will make this information available in
electronic form to other Member States.
4. At the request of a Member State, or on its
own initiative, the Commission shall examine cases where differences in the
application and enforcement of any of the provisions of this Regulation arise
and particularly concerning the interpretation of extraordinary circumstances;
and shall clarify the provisions of the Regulation, with a view to promoting a
common approach. To this end, the Commission may adopt a recommendation after
consultation of the Committee referred to in Article 16c.
5. At the request of the Commission, the
National Enforcement Bodies shall investigate specific suspected practice by
one or several air carriers and report its findings to the Commission within 4
months of the request.
Article
16c
Committee
procedure
1. The Commission shall be assisted by the Passenger
Rights Committee, composed of two representatives of each Member State and of
which at least one will represent a National Enforcement Body. That committee
shall be a committee within the meaning of Regulation (EU) No 182/2011. 
2. Where reference is made to this paragraph,
Article 4 of Regulation (EU) No 182/2011 shall apply.
16.         Article 17 is replaced by
the following:
‘Article
17
Report
The Commission shall report to the European
Parliament and the Council by 1 January 2017 on the operation and the results
of this Regulation, in particular with regard to the impact of the compensation
for long delays and the limitation of accommodation in extraordinary
circumstances of long duration. The Commission shall also report on the
enhanced protection of air passengers on flights from third countries operated
by non-Community carriers, in the context of international air transport
agreements. The report shall be accompanied where necessary by legislative
proposals.
17.         Annex 1 to this Regulation
is added as Annex 1 to Regulation 261/2004.
Article 2
Regulation (EC) No 2027/97 is amended as
follows:
1.           Paragraph 2 of Article 3
is replaced by the following:
'2. The Community air carrier shall provide a
complaint form at the airport which allows the passenger to immediately submit such
a complaint about damaged or delayed baggage. Such a complaint form, which may
take the form of a Property Irregularity Report (PIR), shall be accepted by the
air carrier at the airport as a complaint pursuant to Article 31(2) of the
Montreal Convention. This possibility shall not affect the right of the
passenger to submit a complaint via other means within the deadlines given by
the Montreal Convention.'
2.           Paragraph 2 of Article 5
is replaced by the following:
'2. Without prejudice to paragraph 1, an
advance payment shall not be less than the equivalent in euro of 18 096 SDRs
per passenger in the event of death. 'The Commission
shall be empowered, by means of a delegated act in accordance with Article 6c,
to adjust this amount in light of a decision by the International Civil
Aviation Organisation pursuant to Article 24(2) of the Montreal Convention. Any adjustment in the before mentioned amount shall also modify the
corresponding amount in the Annex.'
3.           The following sentence is
added to Article 6(1):
'The Commission shall
be empowered, by means of a delegated act in accordance with Article 6c, to
adjust the amounts mentioned in the Annex, with the exception of the amount
mentioned in Article 5(2), in light of a decision by the International Civil
Aviation Organization pursuant to Article 24(2) of the Montreal Convention.'
4.           The following Articles are
inserted:
‘Article
6a
1. Whenever carrying checked wheelchairs or
other mobility equipment or assistive devices, the air carrier and its agents
shall offer each person with reduced mobility as defined in Article 2(a) of
Regulation (EC) No 1107/2006[25]
the option to make, free of charge, a special declaration of interest pursuant
to Article 22(2) of the Montreal Convention, at booking and at the latest when
the equipment is handed to the carrier. 
2. In case of destruction, loss of or damage to
mobility aids, the liability of the air carrier shall be limited to the sum
declared by the person at the time when the checked mobility equipment is
handed over to the Community air carrier.
3. In case of destruction, loss, damage or
delay in the carriage of checked wheelchairs or other mobility equipment or
assistive devices, the Community air carrier shall be liable to pay a sum not
exceeding the sum declared by the passenger; unless it proves that the sum claimed
is greater than the person's actual interest in delivery at destination.
Article
6b
1. The National Enforcement Body designated
under Article 16 of Regulation 261/2004 shall ensure compliance with this
Regulation. For this purpose, it shall monitor:
- the terms and conditions of air transport
contracts; 
- the systematic offer of a special declaration
of interest for checked mobility equipment, and of an appropriate level of
compensation in case of damage caused to mobility equipment; 
- the payment of an advance payment under Article
5(1) when applicable;
- the application of Article 6.
2. For the purpose of monitoring the protection
of passengers with reduced mobility and disabled passengers in case of damage
to their mobility equipment, the National Enforcement Body shall also examine
and take account of the information on complaints concerning mobility equipment
submitted to the bodies designated under Article 16a of Regulation 261/2004.
3. The sanctions laid down by Member States for
infringements of this Regulation shall be effective, proportionate and
dissuasive.
4. In their annual reports pursuant to Article
16(6) of Regulation 261/2004, the National Enforcement Bodies shall also
publish statistics on their activity and on the sanctions applied with regard
to the application of this Regulation.
Article
6c
1. The power to adopt delegated acts is
conferred on the Commission subject to the conditions laid down in this
Article.
2. The delegation of power referred to in
Article 6(1) shall be conferred on the Commission for an indeterminate period
of time from the date of entry into force of this Regulation. 
3. The delegation of power referred to in
Article 6(1) may be revoked at any time by the European Parliament or by the
Council. A decision of revocation shall put an end to the delegation of the
power specified in that decision. It shall take effect the day following the
publication of the decision in the Official Journal of the European Union
or at a later date specified therein. It shall not affect the validity of any
delegated acts already in force. 
4. As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and to the
Council.
5. A delegated act adopted pursuant to Article
6(1) shall enter into force only if no objection has been expressed either by
the European Parliament or the Council within a period of 2 months of
notification of that act to the European Parliament and the Council or if,
before the expiry of that period, the European Parliament and the Council have
both informed the Commission that they will not object. That period shall be
extended by two months at the initiative of the European Parliament or the
Council.'
Article
6d
1. Whilst air carriers have full commercial
freedom to establish the conditions under which they permit baggage to be carried, they shall clearly indicate, at booking and at the
check-in desks (including at self-service check-in machines), the maximum
baggage allowance passengers are permitted to carry within the cabin and hold
of the aircraft on each of the flights included within a passenger's
reservation, including any restrictions on the number of items that would be
applied within a given maximum baggage allowance. Where additional charges
are applied for the carriage of baggage air carriers shall clearly indicate
details of those charges at booking and on request at the airport.
2. Where extraordinary circumstances, such as
safety reasons or a change of the aircraft type since the booking was made,
preclude the carriage in the cabin of items included in the carry-on baggage
allowance, the air carrier may carry them in the hold of the aircraft, but at
no extra cost to the passenger.
3. These rights do not affect the restrictions
on carry-on baggage established by EU and international security rules such as
Regulations (EC) No 300/2008 and (EC) No 820/2008
Article
6e
1. A Community air carrier shall permit a
passenger to carry a musical instrument in the passenger cabin of an aircraft
subject to applicable safety rules and the technical specifications and
constraints of the aircraft concerned. Musical instruments shall be accepted
for carriage within an aircraft cabin provided such instruments can be stowed safely
in a suitable baggage compartment within the cabin or under an appropriate
passenger seat. An air carrier may determine that a musical instrument shall
form part of a passenger's hand luggage allowance and not be carried in
addition to that allowance.
2. Where a musical instrument is too large to
be stowed safely in a suitable baggage compartment within the cabin or under an
appropriate passenger seat, an air carrier may request the payment of a second
fare where such musical instruments are carried as hand luggage on a second
seat. Where a second seat is purchased an air carrier should make reasonable
efforts to seat the passenger and the musical instrument concerned together.
Where available and if requested, musical instruments shall be carried in a heated
part of an aircraft cargo hold subject to applicable safety rules, space
constraints and the technical specifications of the aircraft concerned. An air
carrier shall clearly indicate in its terms and conditions the basis on upon
which musical instruments will be transported and the applicable charges.'
5.           Article 7 is replaced by
the following:
‘Article
7
The Commission shall report to the European
Parliament and the Council by 1 January 2017 on the operation and the results
of this Regulation. The report shall be accompanied where necessary by
legislative proposals.' 
6.           The Annex to Regulation
2027/97 is replaced by Annex 2 to the present Regulation.
Article 3
This Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels, 
For the European Parliament                       For
the Council
The President                                                 The
President
Annex 1
'Annex: non-exhaustive list of circumstances
considered as extraordinary circumstances for the purposes of this Regulation
1. The following circumstances shall be
considered as extraordinary:
i. natural disasters rendering impossible the
safe operation of the flight;
ii. technical problems which are not inherent
in the normal operation of the aircraft, such as the identification
of a defect during the flight operation concerned and which prevents the normal
continuation of the operation; or a hidden manufacturing defect revealed by the
manufacturer or a competent authority and which impinges on flight safety;
iii. security risks, acts of sabotage or terrorism rendering impossible the safe
operation of the flight;
iv. life-threatening health risks or medical
emergencies necessitating the interruption or deviation of the flight concerned;
v. air traffic management restrictions or closure
of airspace or an airport;
vi. meteorological conditions incompatible with
flight safety; and
vii. labour disputes at the operating air
carrier or at essential service providers such as airports and Air Navigation Service
Providers.
2. The following circumstances shall not be
considered as extraordinary:
i. technical problems inherent in the normal
operation of the aircraft, such as a problem identified during the routine
maintenance or during the pre-flight check of the aircraft or which arises due
to failure to correctly carry out such maintenance or pre-flight check; and
ii. unavailability of flight crew or cabin crew
(unless caused by labour disputes).
Annex 2
'ANNEX
Air
carrier liability for passengers and their baggage
This information notice summarises the
liability rules applied by Community air carriers as required by EU legislation
and the Montreal Convention.
Compensation
in the case of death or injury
There are no financial limits to the
liability for passenger injury or death caused by an accident on board the
aircraft or during any of the operations of embarkation and disembarkation. For
damages up to 113,100 SDRs (approximate amount in local currency), the carrier
cannot exclude or limit its liability. Above that amount, the air carrier is
not liable if it proves that it was not negligent or otherwise at fault, or
that the damage was solely due to the negligence or other fault of a third
party.
Advance
payments
If a passenger is killed or injured, the
air carrier must make an advance payment, to cover immediate economic needs,
within 15 days from the identification of the person entitled to compensation.
In the event of death, this advance payment shall not be less than 18 096
SDRs (approximate amount in local currency).
Passenger
delays
In case of passenger delay, the air carrier
is liable for damage unless it took all reasonable measures to avoid the damage
or it was impossible to take such measures. The liability for passenger delay
is limited to 4 694 SDRs (approximate amount in local currency).
baggage
loss, damage or delay
In case of baggage loss, damage or delay,
the air carrier is liable for damage up to 1 113 SDRs (approximate amount in
local currency), the compensation limit being applicable per passenger and not
per piece of checked baggage, unless a higher limit has been agreed upon
between the carrier and the passenger through a special declaration of
interest. For damaged or lost baggage, the air carrier is not liable if the
damage or loss is caused by an inherent quality or defect of the baggage. For
delayed baggage, the air carrier shall not be liable when it has taken all
reasonable measures to avoid the damage resulting from the delay of the baggage
or when it was impossible to take such measures. In case of hand luggage,
including personal items, the airline is only liable if the damage has resulted
from its fault. 
Higher
limits for baggage
A passenger can benefit from a higher
liability limit by making a special declaration at the latest at check-in and
by paying a supplementary fee if so required. Such supplementary fee shall be
based on a tariff which is related to the additional costs involved in
transporting and insuring the baggage concerned over and above the liability
limit of 1 131 SDRs. The tariff shall be made available to passengers upon
request. Disabled passengers and passengers with reduced mobility shall systematically
be offered free of charge the option of making a special declaration of
interest for the transportation of their mobility equipment.
Time
Limit for complaints on baggage
If the baggage is damaged, delayed, lost or
destroyed, the passenger must in all cases write and complain to the air
carrier as soon as possible. A time limit to complain of 7 days applies in case
the baggage was damaged and 21 days in case it was delayed, in both cases from
the date on which the baggage was placed at the passenger's disposal. In order
to easily meet these deadlines, the air carrier must offer passengers the
possibility to fill in a complaint form at the airport. Such complaint form,
which may also take the form of a Property Irregularity Report (PIR), must be
accepted by the air carrier at the airport as a complaint.
Liability
of contracting and actual carriers
If the air carrier actually performing the
flight is not the same as the contracting air carrier, the passenger has the
right to address a complaint or to make a claim for damages against either. This
includes cases where a special declaration of interest at delivery has been
agreed with the actual carrier.
Time
limit for action
Any action in court to claim damages must
be brought within two years from the date of arrival of the aircraft, or from the
date on which the aircraft ought to have arrived.
Basis
for the information
The basis for the rules described above is
the Montreal Convention of 28 May 1999, which is implemented in the Community
by Regulation (EC) No 2027/97 (as amended by Regulation (EC) No 889/2002 and by
Regulation (EU) No xxx) and national legislation of the Member States.'
[1]               Regulation (EC) No 261/2004 of the European
Parliament and of the Council of 11 February 2004 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, (OJ L46, 17.2.2004, p.1).
[2]               Regulation (EC) No 2027/97 of the Council of 9
October 1997 on air carrier liability in respect of the carriage of passengers
and their baggage by air (OJ L 285, 17.10.1997, p.1) as amended by Regulation
(EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002
(OJ L 140, 30.5.2002, p.2)
[3]               COM(2010) 0603, 16 Octobre 2010
[4]               Roadmap to a Single European Transport Area - Towards
a competitive and resource efficient transport system COM(2011) 144 final, see
page 23: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0144:FIN:EN:PDF
[5]               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 (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0174:FIN:EN:PDF).
COM (2011) 174 final
[6]               European Parliament resolution on the functioning and
application of established rights of people travelling by air, 2011/2150(INI), http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-99
[7]               OJ C364, 18.12.2000, p. 1
[8]               http://ec.europa.eu/transport/passengers/consultations/2012-03-11-apr_en.htm
[9]               http://ec.europa.eu/transport/passengers/events/2012-05-30-stakeholder-conference_en.htm
[10]             Regulation (EC) No 1008/2008 of the European Parliament
and of the Council of 24 September 2008 establishing common rules for
the operation of air services in the Community, OJ L 293 of 31.10.2008.
[11]             See the Commission's proposals: http://ec.europa.eu/consumers/redress_cons/adr_policy_work_en.htm
[12]             OJ C , , p. .
[13]             OJ C , , p. .
[14]             OJ L46, 17.2.2004, p.1
[15]             OJ L285, 17.10.1997, p.1; modified in OJ L140,
30.5.2002, p.2
[16]             COM(2010) 603 final
[17]             OJ L158, 23.6.1990, p.59
[18]             OJ L55, 28.2.2011, p.13
[19]             Regulation (EC) No 2027/97 of the Council of 9 October
1997 on air carrier liability in respect of the carriage of passengers and
their baggage by air, OJ L 285, 17.10.1997, p.1p as modified by Regulation (EC)
No 889/2002 of the European Parliament and of the Council of 13 May 2002, OJ L
140, 30.5.2002, p.2
[20]             OJ L293, 31.10.2008, p. 3.
[21]             OJ L158, 23.6.1990, p. 59
[22]             OJ L204, 26.7.2006, p.1
[23]             OJ L293, 31.10.2008, p.3
[24]             OJ L 281, 23.11.1995, p.31
[25]             Regulation (EC) No 1107/2006 of the European Parliament
and of the Council of 5 July 2006 concerning the rights of disabled persons and
persons with reduced mobility when travelling by air, OJ L 204, 26.7.2006, p.1