Delays, cancellations and compensation: Why are air passengers still finding it difficult to enforce their EU rights under Regulation 261/2004?
| Published date | 01 April 2020 |
| DOI | 10.1177/1023263X20904235 |
| Author | Sara Drake |
| Date | 01 April 2020 |
| Subject Matter | Articles |
Article
Delays, cancellations and
compensation: Why are air
passengers still finding it
difficult to enforce their
EU rights under Regulation
261/2004?
Sara Drake*
Abstract
The aim of this article is to identify why air passengers travelling in the European Union, endowed
with the highest standard of consumer protection in the world under EU law, are still being denied
their rights and finding it difficult to seek effective legal redress. This article argues that the principal
cause of airlines’ non-compliance is the poor regulatory design of Regulation 261/2004, which has
been compounded by inadequate application by the Member States and regulatory resistance by
the airlines. This contribution will then demonstrate how the European Commission (‘Commis-
sion’) has responded through the adoption of both deterrence and compliance-based enforcement
strategies, and maps out the mechanisms, tools and actors harnessed by the Commission to create
a complex hybrid, multi-layered system of enforcement. The article reveals that enforcement gaps
persist and argues that the effectiveness of the regime is unlikely to improve without legislative
reform.
Keywords
Consumer protection, air passenger rights, Regulation 261/2004, enforcement
* Cardiff University, Cardiff, UK
Corresponding author:
Sara Drake, Senior Lecturer in Law, School of Law and Politics, Cardiff University, Cardiff CF10 3AX, UK.
Email: drakes@cardiff.ac.uk
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(2) 230–249
ªThe Author(s) 2020
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sagepub.com/journals-permissions
DOI: 10.1177/1023263X20904235
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MJ
1. Introduction
Air passenger rights as set out in Regulation 261/2004 (also known as EC261)
1
are routinely por-
trayed as one of the EU’s flagship policies for citizens, along with the Mobile Phone Roaming
Regulation
2
and, more recently, the General Data Protection Regulation (GDPR).
3
Regulation 261/
2004 is ambitious and confers an unprecedented standard of consumer protection on air passengers
who have their travel disrupted in the EU.
4
It reflects the EU’s commitment to a high standard of
consumer protection
5
which cuts across all policy sectors, including transport.
6
This ambition is
reflected in the regulatory design of the Regulation, since it explicitly grants passengers a minimum
range of consumer r ights with corresponding legal obligatio ns imposed on airlines through automat-
ically binding legislation. In essence, where air travel is disrupted through denied boarding,
7
invo-
luntary up-grading and down-grading,
8
delay,
9
or cancellation,
10
EU rights are triggered which are
directly applicable and enforceable before a national court.
11
Air passengersmay have a right to care
and assistancein the form of, for example,meals, drinks, telephonecalls and hotel accommodation,
12
1. Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing
common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or
delay of flights, and repealing Regulation (EEC) No. 295/91, [2004] OJ L 46/1.
2. Regulation (EU) No. 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public
mobile communications networks within the Union (recast), [2012] OJ 172/10.
3. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC, [2016] OJ L119/1. See for example, the Foreword of President Juncker in the European Commission’s 2017
Annual Report on the Monitoring the Application of Union Law, COM(2018) 540 final, p.2.
4. It replaces Council Regulation (EEC) No. 295/91 of 4 February 1991 establishing common rules for a denied boarding
compensation system in scheduled air transport, [1991] OJ L 36/5. It increases the standard of protection for passengers
denied boarding and extends protection to include cancellations without a prior warning and lengthy delays. The
Regulation applies to all passengers (not just EU citizens) departing from an airport located in the EU/EEA and to
passengers departing from an airport in a third country to an airport in the EU/EEA where the operating air carrier is a
EU/EEA carrier unless they receive benefits or compensation and were given assistance in that third country, see
Article 3 of Regulation 261/2004.
5. The EU’s commitment to a high level of consumer protection was strengthened by the Treaty of Lisbon 2007 and is
reflected in Article 12 TFEU (ex Article 153(2) EC), a cross-cutting provision which states that ‘Consumer protection
requirements shall be taken into account in defining and implementing other Union policies and activities’, and can be
found in Article 38 of the EU Charter of Fundamental Rights, which states that ‘Union policies shall ensure a high level
of protection’.
6. The Regulation was adopted on the basis of Article 100(2) TFEU (ex Article 80(2) EC) (transport) rather than Article
169 TFEU (ex Article 153 EC) (consumer protection).
9. Article 6 of Regulation 261/2004, but see also the CJEU’s controversial 2009 judgment in Joined Cases C-402/07 and
C-432/07 Sturgeon, EU:C:2009:716, in which the right to compensation for cancellation under Articles 5 and 7 was
extended to passengers who suffer a long delay of three hours or more. The Sturgeon judgment was confirmed in 2012
by the CJEU in Joined Cases C-581/10 Nelson and Others v. Deutsche Lufthansa AG and C-629/10 TUI Travel and
Others v. Civil Aviation Authority, EU:C:2012:657.
12. The right to care set out in Article 9 arises where passengers are disrupted by denied boarding (Article 4), cancellation
(Article 5) and delay (Article 6), depending on the distance to be travelled and the length of the delay.
Drake 231
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