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The Council of the European Union is advocating reduced EC 261/2004 compensation for passengers whose flights are delayed or cancelled by airlines, along with a longer delay threshold before passengers would be eligible for compensation.
Specifically, The EU Council is recommending that passengers on short-haul and medium-haul flights would have to be delayed 4+ hours, and passengers on long-haul flights would have to be delayed 6+ hours, before being eligible for any compensation. This is a significant increase from the current 3+ hour delay threshold. Compensation for medium-haul and long-haul flight delays/cancellations would also be reduced by EUR 100.
Since 2004, passengers on European airlines and on all airlines departing EU countries (but not on non-EU carriers flying to the EU) have been protected by EC 261/2004 regulations that stipulate compensation amounts for delays of 3+ hours, with the compensation amount dependent on the flight length. The only exemption was if the delay was caused by “extraordinary circumstances,” but over the years, the European Court of Justice (ECJ) has narrowed what is truly extraordinary. For example, a technical or maintenance problem that leads to a flight cancellation or delay is not considered an extraordinary circumstance, “unless the problem stems from events 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.” (Paragraph 34, Friederike Wallentin-Hermann v. Alitalia, also cited by Sturgeon v. Condor and Bock v. Air France).
Current EC 261/2004 Rules
| Flight length | Delay | Compensation |
|---|---|---|
| <1500 km | 3 hours or more | €250 |
| 1501 km to 3500 km | 3 hours or more | €400 |
| > 3500 km | 3 hours or more | €600 |
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Proposed New Rules
| Flight length | Delay | Compensation |
|---|---|---|
| < 3500 km | 4 hours or more | €300 |
| > 3500 km | 6 hours or more | €500 |
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The Bad News: Longer Delay Thresholds, Lower Compensation
As noted above, passengers mostly lose:
- Long-haul passengers have to endure double the delay, 6+ hours instead of 3+ hours, to be eligible for any compensation
- Short-haul and medium-haul passengers have to have a delay of 4+ hours instead of 3+ hours to qualify
- Compensation is reduced by €100 for medium-haul passengers to €300 (from €400) and for long-haul passengers to €500 (from €600)
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The Good News: Rerouting Right Failure Compensation, Protection If Initial Flight Not Taken
There isn't much good news in the proposal. For example, while the Council says that passengers will now have the right to compensation if informed of the cancellation <14 days prior to departure, they already have that right in EC 261/2004.
EC 261/2004 also already gives passengers the right to re-routing”under comparable transport conditions, to their final destination at the earliest opportunity,” but the Council's proposal does specify that if an airline fails to provide an appropriate rerouting within 3 hours of a disruption, passengers may arrange their own rerouting and claim reimbursement of up to 400% of the original ticket cost.
Another new right would be passengers' right to claim compensation if they did not take an outbound flight and the airline denies them boarding on the return flight. This will be interesting, as it's currently standard airline industry practice to cancel the return flight for passengers who don't take their outbound flight.
The Council also proposes a strict deadline for airline responses: 14 days from when passengers submit a compensation request. We don't see this as much value, however, as airlines often simply deny compensation, citing “extraordinary circumstances,” sometimes until taken to court, so this simply means getting a rejection faster.
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The Verdict
While the Council is selling its position as aiming to “strengthen and clarify several existing air passengers rights, together with the introduction of certain new rights” we find that disingenuous. Reducing delay and cancellation compensation (particularly when inflation has eroded the actual Euro value since 2004) and making it harder (via the increased delay thresholds for eligibility) is definitely not “strengthening” air passenger rights.
The next step is for the European Parliament to approve, amend, or reject the Council's position.
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