An evaluation of air passenger rights within the European Union

Abstract

This thesis will examine the development, identification of shortcomings and the road to reform in air passenger rights legislation as highlighted in public consultations and relevant commission communications. Much of the thesis focuses on Regulation 261/2004 which entered into force in 2005, and provides for compensation and assistance to passengers who are denied boarding, whose flights are cancelled, or whose flights are subjected to delays. However, since its entry into force, the application, interpretation and even the validity of key provisions of the Regulation became the subject of controversy. The first chapter discusses delays, cancellations and denied boarding. The Regulation contains lacunaes which led to divergent interpretations, and the complexity of the rules led to a negative effect on passenger rights. Much focus is placed on the relationship between delay and cancellation, on the definition of extraordinary circumstances, on the issue of compensation for delays and finally on the way keywords have been interpreted. The second chapter analyzes the reform required with regards to bagging. Most of the rules relating to the delay, loss and damage to luggage are defined in the Montreal Convention, which was implemented into EU law by Regulation 889/2002. Apart from a number of limitations to the airlines liability and no definition of what constitutes luggage, the Convention is silent on issues such as assistance in case of delayed or lost luggage. The question of whether passengers should be left the choice to take out such insurance or whether it is preferable to have standardised forms of assistance provided by the airlines is also dealt in this part of the thesis. Chapter three deals with the measures that are needed to improve the enforcement of the Regulation. The lack in the uniformity enforcement of the Regulation affects the passengers' means to obtain redress. Linked with the right of redress is management of passenger's complaints, which is currently trailing behind as there are no specific rules to be observed by the National Enforcement Bodies with regard to complaint handling. The Thesis addresses these issues by analyzing the proposed Directive on alternative dispute resolution, the Regulation on online dispute resolution for consumer disputes, the enactment of contingency plans and the creation of a specific enforcement body for baggage. Chapter four examines the considerable and unreasonable economic burden on airlines, which may be passed on to passengers in the form of higher fares notably due to carriers' unlimited obligations with respect to care and assistance in cases of extraordinary circumstances, and the fact that the current system of shared liability within the aviation industry is being hindered by contract limitations.