CELEX: 51998PC0580
Language: en
Date: 1998-10-19
Title: Amended proposal for a Council Regulation (EC) amending Council Regulation (EEC) No 295/91 establishing common rules for a denied-boarding compensation system in scheduled air transport

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