ERA passenger rights webinar

3 February 2023: ERA held a webinar focussed on passenger rights on 25 January with the support of its law firm members. The webinar took place in the context of the new EC ‘Better protection for passengers and their rights’ initiative and aimed to provide an opportunity for airlines to interact directly with experts on EU261-related topics.

ERA's Director General gave some introductory remarks, pointing out that the revision of whole EU261 Regulation based on the 2013 proposal is still blocked at Council level and that DG MOVE does not have much room for negotiation on file as it is all in the hands of the Member States. DG MOVE launched last year an additional revision of EU261, focussing on policy areas that are not covered by the 2013 proposal. However, she stressed that those issues cannot be successfully addressed by EU policymakers without a revision the whole EU261 basic regulation which should therefore remain the absolute priority.

ERA's Legal Counsel focussed on the pro-consumer attitude of the ECJ and need for an adjustment of the EU261 Ppreamble to the level playing field. He stressed that no proper Impact Assessment of the ECJ rulings was conducted across the years and that these rulings are clearly having a negative impact on connectivity, safety and sustainability. Finally, he pointed out that the current wording of EU261 – amended by ECJ extensive rulings – are benefiting the claim agencies to the detriment of the passengers themselves who, in most cases, receive only half the compensation to which they are entitled.

Many topics related to practice of EU261 Regulation were discussed during the webinar, including:

• Reimbursement of tickets when passengers book via intermediary ticket vendors.
• Single ticket booking issues, focussing on wet-lease/interline agreements/codesharing.
• Island traffic and passenger rights, focussing on PSO routes.
• Risks & opportunities arising from a future EC regulatory framework on multimodal passenger rights.
• Concept of ‘reasonable measure’ and its application.
• Discrepancies between ECJ rulings and their applications by national court.
• Latest ECJ rulings on strikes, OTAs, connecting flights.

During the Q&A sessions, carriers expressed their concerns about the current interpretation of extraordinary circumstances, in particular with regard to bad weather and the opposition of national courts to requesting preliminary rulings before the ECJ. Indeed, some national courts consider that bad weather is normal and common in certain geographical areas, which means that in such cases there is no justification to request the use of extraordinary circumstances.

Claims agencies were also mentioned in the exchanges.  In particular, airlines referred to the difficulty of refusing to engage with a claims agency and asking to deal only with the passenger – i.e., refusing to recognise anything that is managed by the claims agency, including discussions or funds where the claim agency has been duly mandated by the passenger. In these situations, some airlines require a power of attorney.

When it comes to the next steps, ERA will identify in the coming months opportunities through other EU regulatory files (upcoming EC proposals on MDMS and the ASR review) to address issues related to EU261.

ERA will also organise a further webinar in the coming months, which will potentially address the following topics: airlines' defences before courts, rights of passengers to be represented by claims agencies before courts, application of the ‘extraordinary circumstances’ by national courts (especially in relation to bad weather conditions and bird strikes), the disproportion between the value of the compensation and the value of tickets.