Representatives of the European Commission have confirmed informally that we can expect the following in a legislative proposal by the end of this year:
Existing rights will be confirmed, not expanded. The intention is to fine tune the rights, clarify passenger rights and make the enforcement of those rights more effective
The Regulation will be adjusted to take account of financial limits so compensation will be more proportionate
Extraordinary circumstances will be better defined so as to reflect the CJEU judgments and either include a nonexhaustive list of extraordinary circumstances within the text of the revised Regulation, or as an Annex to the Regulation. The advantage of not including a non-exhaustive list in the text would be that it would not have to be submitted as part of the legislative proposal and would not as a consequence require a co-decision with the European Parliament and Council. If the non-exhaustive list is contained in an Annex to the revised Regulation, it could be adjusted by the use of delegated acts, so as to quickly take account of changes of circumstance and further CJEU rulings as they emerge
The Extraordinary Circumstances Working Group, which includes the UK CAA’s Safety Regulation Group and seven National Enforcement Bodies, has been going through instances of delay and cancellation caused by technical shortcomings in aircraft and consulted with certain airlines’ ops teams, and found that more often than not, the delay or cancellation was justified. The findings of the Working Group, which will report back to the European Commission, may lead to a less restrictive application of the principles laid down in the CJEU judgment in the case of Wallentin – Hermann, and a more consistent approach to the treatment of claims for compensation for delay and cancellation arising from aircraft “going tech” at the last minute
The Sturgeon ruling, giving fixed compensation payments to passengers on delayed flights will be written into the revised Regulation, but the length of delay triggers are likely to be extended out to 6, 9 and 12 hours from the Sturgeon trigger of 3 hours or more
There is likely to be a cap imposed on the obligation on airlines to provide accommodation in extraordinary circumstances to 2 nights and an allowance of €80 per night per passenger for accommodation. This will be balanced by the introduction of contingency plans for the repatriation of passengers stranded at airports where there is mass disruption, such as during the recent volcanic ash crisis, which will include looking at responsibility being taken by local public authorities to provide alternative temporary accommodation
There will be stronger rights of recourse against third parties (such as airport authorities and air navigation service providers) so that airlines can get real rights of redress against such parties to recover costs of care and assistance. It is envisaged that a new article will be included in the text of the revised Regulation stating that any contract or law limiting or excluding a third party’s liability will be considered illegal.
