12.11.2013   

EN

Official Journal of the European Union

C 327/115

1.1

The EESC welcomes the additional legal certainty that the current proposal brings for both passengers and air carriers by offering more precise definitions of the relevant concepts used by the regulation, thus reflecting the principles of the Court of Justice of the European Union (CJEU) decisions and providing a sound legal framework. But the EESC regrets that the Commission's proposal does not contain a high level of consumer protection.

1.2

The EESC approves in principle of the measures that air carriers must take under different conditions to compensate passengers in the event of long delays, rerouting and rescheduling, and increase their overall comfort when flights are delayed or missed. But the EESC disagrees in particular with the planned compensation for delays, long delays to flights and to short-haul flights, where the proposal moves away from the relevant case-law of the CJEU.

1.3

The EESC appreciates that the proposal is made after an extensive impact assessment and reminds that the effective and timely implementation of the SES II+ legislation package is an important tool which should decrease air carriers’ costs.

1.4

The EESC rejects the Commission's proposal to increase the time threshold after which the right to compensation arises, deviating from the three consecutive rulings of the CJEU.

1.5

The EESC understands the reasons for increasing substantially the threshold for delay compensation for long-haul journeys, but urges the Commission to continue its efforts to find incentives for air carriers to actually perform considerably below these thresholds. The above delay times should be reduced further for people with disabilities or reduced mobility to take into account the particular costs to these people of any long delay.

1.6

The EESC appreciates that a deadline is introduced and that if the air carrier cannot reroute the passenger on its own services, it must consider other carriers or other transport modes. But in the Committee's view, 12 hours before being able to use other services or carriers is too long. Moreover, the passenger should have the right to refuse travel by another mode of transport (e.g. bus, train or ship). To cover the additional costs of transferring to another carrier as swiftly as possible, the EESC reiterates its proposal of creating a "shared liability" fund for repatriating or rerouting passengers with other carriers.

1.7

Regarding the definition of "extraordinary circumstances", in the EESC's view it should be clearly stated that delays, changes of schedule or cancellations are only to be considered extraordinary if these circumstances:

It will then have to be checked each time extraordinary circumstances are invoked, if they really meet all three conditions, which will not always necessarily be the case for some of the circumstances listed in Annex 1 of the proposal for a regulation (e.g. health or safety risks, weather conditions or labour disputes).

1.8

The EESC urges the Commission to prepare a regulation that is neutral with regard to other modes of transport, in order not to break with the principle of equal treatment or give rise to favouritism to the detriment of other modes of transport.

2.1

The improvement of air transport in Europe has remained high on the agenda of the European Commission in recent years. Compliance with increasingly rigorous Community rules on the Single European Sky safety, efficiency and the environmental impact of aviation (1) have improved the operation of air services and strengthened the established rights of people travelling by air. The EESC has drawn up opinions on all of the relevant texts (2), and encouraged the Commission to continue its efforts along the same course, on the understanding that more work is needed.

2.2

In view of the fact that travelling by air is no longer a luxury, but a necessity to meet business needs and allow European citizens to exercise their self-evident right to free movement, the EESC believes that there are still areas that need to be further explored in order both to guarantee passengers' rights and to provide air carriers with a sound legal and business environment which will allow them to be successful in a highly competitive market. The areas where improvement of the legal framework and more effective application of existing legislation are required include rules on compensation and assistance to air passengers.

3.1

This proposal amends the current act, Regulation No 261/2004, and is motivated by a number of developments:

3.2

The main goal of the proposal is to guarantee the basic rights of passengers travelling by air – namely the right to information, reimbursement, rerouting, assistance while waiting to travel, and compensation under certain conditions (3), while taking into account the financial implications for the air transport sector and ensuring that air carriers operate under harmonised conditions in liberalised market.

3.3

The proposal addresses the three main areas where the Commission considers that measures are still needed to improve application of the regulation i.e. the effectively harmonised enforcement of EU rights, the facilitation of their enjoyment in practice, and the raising of the public's awareness of these rights. It meets the EP's recommendation for "enhanced legal certainty, more interpretative clarity and uniform application of the regulations across the EU" (4).

3.4

The legislative reform of Regulation No 261/2004 proposed by the European Commission thus:

4.1

The EESC regrets that the proposal does not follow the case law of the CJEU in its entirety, departing from it on one of the most important points in terms of passengers' rights. However, it acknowledges that in the areas in which the Commission has incorporated CJEU case law the proposal improves the current regulation.

4.2

The EESC expresses its satisfaction that the current proposal seems to have corrected most of the shortcomings of the previous version identified by both the industry and passengers (5) and at the same time clarified a number of definitions.

4.2.1

For the industry the added value of the proposal compared with the existing rules could be found in the way it:

4.2.2

For the passengers the added value of the proposal could be found in the way it:

4.2.3

The EESC recognises that it is very challenging to satisfy at the same time the requirements of all the stakeholders, so the added value offered to one party could mean less satisfaction for the other.

4.3

The EESC sees the Commission's actions aimed at improving passenger protection in the event of airline insolvency (6) as a step in the right direction, but underlines that these measures are not sufficient to ensure a comprehensive and effective passenger protection in case of insolvency of the airline; considers that a mechanism should be established to guarantee that the air carriers comply with the proposed Regulation in case of insolvency.

4.4

The proposal draws a demarcation line between itself and Council Directive 90/314/EEC, giving passengers the right to choose under which law they introduce their claim, but not giving them the right to cumulate compensation for the same problem under both legal acts.

4.5

In its previous opinions on air passenger rights, the EESC made various proposals that would strengthen those rights (7), many of which have been incorporated into this draft regulation. The EESC regrets to note, however, that the following proposals were not considered:

4.6

The EESC welcomes all improvements concerning the enforcement of the rights of disabled passengers and passengers with reduced mobility because they allow for the alignment with the provisions of the Convention on the Rights of Persons with Disabilities. In that frame the EESC proposes the following amendments:

5.1

The EESC approves the principle of the measures that air carriers must take under different conditions to compensate passengers in the event of long delays, provide better care, rerouting and rescheduling and increase passengers' overall comfort when flights are delayed or missed.

5.2

The EESC considers that the Commission's proposal to increase the time threshold after which the right to compensation arises from three to five hours for all journeys within the EU is not acceptable. The EESC does not understand why the reduction of the threshold to receive compensation would reduce the rate of cancelled flights as in the case of cancellation airlines have to pay compensation anyway.

5.3

It is understandable that journeys to/from third countries should be subject to thresholds that depend on the journey distance, taking into account the practical problems encountered by air carriers when addressing the causes of delays at remote airports. The EESC nevertheless considers the proposed times of nine or 12 hours to be too long and believes the Commission should continue its efforts to find incentives for air carriers to actually perform considerably below these thresholds. The above delay times should be reduced further for people with disabilities or reduced mobility to take into account the particular costs to these people of a long delay. The EESC sees the effective and timely implementation of the SES II+ legislation package as an important tool for decreasing air carriers’ costs, allowing them more flexibility in financing the reduction of the thresholds.

5.4

The EESC appreciates that a deadline is introduced and that if the air carrier cannot reroute the passenger on its own services within this deadline, it must consider other carriers or other transport modes (subject to seat availability). But in its view 12 hours before being able to use other services or carriers is too long. Moreover, the passenger should have the right to refuse travel by another mode of transport (e.g. bus, train or ship). To cover the additional costs of transferring to another carrier as swiftly as possible, the EESC reiterates its proposal of creating a "shared liability" fund for repatriating or rerouting passengers with other carriers, in close discussion with all the stakeholders.

5.5

The EESC believes it is necessary to more clearly define airports’ responsibilities to assist passengers in the case of multiple flight cancellations, caused by airport authorities' failure to provide the needed conditions for smooth flight service provision.

5.6

The EESC supports the second test of the application of the "extraordinary circumstances" clause in Article 1(4)(b) of the proposal and recommends that the National Enforcement Bodies (NEBs) ensure it is thoroughly performed.

5.7

The EESC supports the proposal to introduce a single time threshold of 2 hours for flights of all distances to replace the current thresholds for care, which now depend on flight distances. This is greatly in the interest of passengers and provides them with fair and comfortable conditions while waiting.

5.8

EESC welcomes the proposal that passengers who miss a flight connection because of a delayed previous flight have a right to care and, under certain circumstances, a right to compensation, because it also improves the position of passengers.

5.9

A step towards better guaranteeing passengers' rights is the proposal that passengers on flights rescheduled with advance notice of less than two weeks should have rights similar to those of delayed passengers.

5.10

The EESC strongly recommends to the Commission to find measures for improving the cooperation between the airports and the air carriers as to significantly decrease the time passengers should spend when their aircraft is delayed on the tarmac.

5.11

The EESC calls on the Commission to prohibit the current airline practice of cancelling the return flight if a passenger has not used the outward flight on the same ticket (8). The Committee agrees with strengthening the right of passengers to information about flight disruptions (as soon as this information becomes available) as this will also improve passengers' ability to plan their next course of action when their final destination is reached.

5.12

The EESC understands the need to limit the time during which the air carriers should take care for the accommodation of passengers in the event of extraordinary circumstances and accepts the proposed limit of 3 overnights. However, the Committee strongly advises the Commission to let the NEBs set a price limit for these overnights for each Member State. The price limit should not be applied for persons with reduced mobility (PRMs).

6.1

The proposal for an amendment to Regulation No 261/2004 clarifies the role of NEBs by allocating them the role of general enforcement. The out-of-court handling of individual complaints will become a job for complaint-handling bodies (Alternative Dispute Resolution Bodies); as suggested earlier by the EESC (9). These provisions give more power to the bodies responsible for the proper sanctioning of carriers' non-compliance with the provisions of Regulation 261/2004 and provide passengers with a more reliable means of pressing for proper application of their rights.

6.2

The proposed exchange of information and the coordination between the NEBs themselves and between the NEBs and the Commission brought about by enhanced reporting obligations and formal coordination procedures will allow a fast reaction to all identified compliance problems.

7.1

The EESC welcomes the fact that the proposed regulation:

These clarifications will benefit both passengers and carriers, allowing the former to determine their rights in this area and the latter their responsibilities.

7.2

The proposed non-exhaustive list of circumstances to be regarded as extraordinary and of circumstances to be regarded as non-extraordinary (set out in Annex I to the proposed regulation) will also help reduce the risk of unnecessary arguments between passengers and airlines.

7.3

Consequently, in the EESC's view it should be clearly stated in the proposal for a regulation that whenever extraordinary circumstances are invoked, it will have to be considered whether they really do meet this triple condition, which will not always necessarily be the case for some of the circumstances listed in Annex 1 (e.g. health and safety risks, weather conditions or labour disputes).