Latest developments in air passenger rights and their application to UK travel companies
The following article appeared in ABTA's issue of Travel Law Today - Autumn 2021.
Hayley Kiely, Legal Assistant – Weightmans LLP
As the travel industry continues to recover from the effects of COVID-19, the issue of air passenger rights post-Brexit is once again under the spotlight. Following the Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 and the EU-UK Trade and Cooperation Agreement, the question of interaction between the UK and EU Regulations is a hot topic.
Regulation EC261/2004 has been subject to much debate and comment, especially since the introduction of flight delay compensation rights in October 2012. Initially, airlines attempted to limit the application of existing rules for cancellation compensation to flights delayed over three hours, subject to the defence of ‘extraordinary circumstances’. Over time, and following some very surprising Court of Justice for the European Union (CJEU) decisions, the scope for airlines to defend claims was severely reduced.
Despite the UK formally leaving the EU on 31 January 2020, EC261/2004 has remained applicable as a result of the European Union (Withdrawal) Act 2018, this directly applying EU legislation into UK law at the end of the transitional period. This ‘retained EU law’, in the context of EC261/2004, has been subject to minor amendments, by way of The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019. In principle, the same passenger rights apply albeit there is now overlap of the regulations where both sets of regulations apply to EU carriers departing from and returning to the UK.
Flights departing the UK
- UK Carrier – The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 applies.
- EU Carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 and EC261/2004 rules apply.
- Non-UK and Non-EU Carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 applies.
Return flight to the UK from the EU
- UK Carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 applies.
- EU Carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 and EC261/2004 rules apply.
- Non-UK and Non-EU carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 applies.
Return flight from the UK from outside the EU
- UK Carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 applies.
- EU Carrier - The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019 applies.
- Non-UK and Non-EU Carrier – Neither Regulation applies.
Case law
CJEU judgments handed down on or before 31 December 2020 are retained ndefinitely and binding on claims presented under the new UK regulations. The UK Supreme Court and Court of Appeal will be able to depart from this existing case law in limited circumstances. CJEU judgments handed down after 31 December 2020 will not be binding. The question, therefore, is whether the UK courts will adopt a similar approach to the EU’s application of the regulation, or will there be divergence between UK and EU case law?
It is expected that UK consumers will present claims under the new UK regulation. However, passengers who travel on a flight that attracts both regulations retain their rights under EC261/2004, unless they have received compensation or benefits under UK law. This creates the potential for consumers, to select the forum for their claim, be that under the UK or EU regulations. In this scenario, a key factor will no doubt be the development of UK case law and the perception of how ‘consumer friendly’ it is.
Whilst it is too early to predict the future application of the UK regulations by the UK court, the focus on consumer protection is likely to play a significant role. In circumstances where the travel and aviation industry attempt to recover from the continued impact of the COVID-19 pandemic, the EU continues to demonstrate its approach to passenger rights, which are considered by many in the industry to be significantly imbalanced and overly pro-consumer.
The recent investigation by the Consumer Protection Cooperation (CPC) in relation to airline cancellation and reimbursement policies in the context of the pandemic is an indicator of the expected EU standard of consumer protection. The investigation was the biggest CPC action in the CPC network’s history and the first that was based on an alert from the Commission. It was alleged that airlines had systematically breached air passenger rights in 2020, specifically in terms of providing refunds and vouchers for flights cancelled because of the pandemic. Subsequently, 16 airlines have committed to adopting better practices when it comes to flight cancellations. For those without knowledge of the realities of the travel sector, could this commitment to adopt better practices be misconceived as a failure to uphold passenger rights and indirectly influence application of the regulations?
The UK courts will inevitably seek guidance from other post-Brexit legislation and statute as claims are presented under the new UK regulations without the binding of future CJEU judgments. The EU-UK Trade and Cooperation Agreement states that there is an expected level of cohesion when it comes to consumer protection. Whilst the agreement does not specifically refer to the application of EC261/2004 or the UK regulations, Article 438 broadly refers to passenger rights including reference to compensation. Parties to the agreement are required to cooperate in providing a high level of consumer protection and have appropriate measures in place to achieve this. It may be considered that application of the UK regulations inconsistent with the CJEU approach may be contradictory to the agreement.
Considering the continued focus on air passenger rights, it would not be surprising for the UK court system to be influenced and persuaded by future CJEU judgments. Even if the UK courts eventually begin to redress the imbalance, for the time being, the UK travel industry continues to be at the mercy of historical CJEU judgments and finds itself in an all too familiar position – wait and see.