Craig Dickson looks at whether the Air Passenger Rights Regulations do indeed protect us when we travel.
Few things in life are guaranteed: death, taxes and that, inevitably, at some point you will find yourself stuck in an airport lounge looking at a departure board telling you that your flight is delayed or cancelled. This inescapable truth does not discriminate between age, race, faith, or whether your ticket is economy or first class, and will undoubtedly continue to affect air travellers as the number of passengers continues to increase.
Of course, consumers now have the confidence that they can, at least, fall back on the rights provided by the EU's flagship Air Passenger Rights regulations when things do go wrong, can't they?
Well, it seems, not quite....
The theory still seems good enough. With much fanfare, and despite the significant (and predictable) resistance from the travel industry, passengers were assured by Brussels that the implementation of EU Regulation 261/2004 would go some way to addressing the rather weak position they would otherwise inevitably find themselves in when looking to airlines to deal with their complaints. At the very least, it was thought, it would make airlines think twice before cancelling flights or leaving passengers miserably alone at airports without having to turn more than a passing thought to their well being.
Amongst other things, the Regulation envisaged that, provided they check in on time for any flight from an EU airport (or to an EU airport from one outside of the EU but operated by an EU airline) a passenger could expect an airline to comply with certain obligations in the event of delay, cancellation or denied boarding.
Before the Regulation came into force, it was widely predicted that the main problem consumers would face in pursuing their newly acquired rights would be that airlines would seek to escape from their responsibilities by reliance upon the "due diligence" provisions of the Regulations. There are also arguments about precisely what constitutes an "extraordinary" circumstance that allows airlines to escape liability. Not until brave souls come forward to test these issues in litigation within the various jurisdictions will the answers and the true extent of the Airlines responsibilities be known..
Interpretation of the Regulations is far from the only difficulty to be experienced. Particularly in the period immediately following the implementation of the Regulation, it was not uncommon for airlines to simply refuse to entertain perfectly justified complaints and to encourage passengers to accept vouchers or discounts on future flights as an alternative to compensation. In some cases, passengers were merely offered the opportunity to upgrade the class of their ticket on future flights with the airline. In the vast majority of cases, it appears that consumers in England and Wales remain reliant on the stretched, and limited, resources of the Air Transport Users Council or, alternatively, the small claims court.
Far, then, from offering passengers the opportunity to exercise their new rights, the Regulation appears to have done little more than dangle a somewhat unreachable carrot. The travel industry has been able to flex its collective might and ensure that the much vaunted legislation has had little or none of the intended impact. The reality is that passengers remain in a weak position. The minimal criminal sanction for an airline's non-compliance, currently £5,000.00, is little deterrent and it is expected that the travel industry will continue to lobby against the Regulation, despite the unsuccessful challenge to the European Court of Justice in early 2006. It, therefore, seems unlikely that the current position will change to the benefit of passengers without further intervention from those in Brussels or individual members.
There have been notable exceptions however where passengers have achieved a degree of success mainly in the Small claims court. Harbord v Thomas Cook Airlines (2006) is the most widely reported decision of a success, although it is probably important to note that it is unlikely that we will see many, if any, of such cases leave the County Court. In this particular instance, the Claimant successfully argued that he should be entitled to compensation as his flight, which was originally due to depart from Stanstead airport but eventually departed from Manchester 24 hours later, was materially altered such that it amounted to a cancelled flight where there we no exceptional circumstances.
With 17 February 2007 bringing the second anniversary of the implementation of Regulation 261/2004, media interest in the plight of passengers continues to grow; the recent runway problems at Bristol airport causing extensive disruption being only the most recent example. This, together with the general perception in Europe that the Regulation has largely failed to meet its objectives, may be the push that will lead to the legislation being revisited considerably sooner than first anticipated. The Financial Times has recently reported that Jacques Barot, the European Union transport commissioner, is considering measures to strengthen the current law and will recommend ways to increase its effectiveness when he presents a review within a matter of weeks.
Perhaps, then, both travellers and the travel industry can expect some clarity in the application of Air Passenger law in the near future, after all.
Unless, of course, the report is delayed. Or cancelled....
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