EU 261/2004 - Further developments for passengers on delayed or cancelled flights or when boarding is denied

Posted by Ian Skuse on
Once again, airlines face financial claims for passengers left stranded at airports.  The closure of Sharm el Sheikh Airport led to significant liability attaching to carriers under Article 9 of Regulation EU 261/2004 for meals, refreshments and hotel accommodation. 

Similar duties are placed upon tour operators, and the smarter carriers are able to pass on this liability in their commercial agreements with them. 

Meanwhile, in the Scottish case of Dunbar v. EasyJet, the flight delay between Glasgow and Malaga was due to Air Traffic Control relating to earlier routings.  This resulted in the late arrival of the flight and other suitable aircraft were not available.  The Judge found that ATC amounted to extraordinary circumstances which resulted in a 6 hour delay.  But, he was not satisfied that everything reasonable was done, and that other measures could have been taken to minimise the delay which occurred.  The passenger accordingly was entitled to compensation.

In another Scottish case Caldwell v. EasyJet, the passengers complained that they had turned up on time to depart but on arrival faced a very long queue of passengers waiting to check-in for different EasyJet flights.  This delay meant they were late going through security and Passport Control and this was the reason why the gate was closed for their flight on arrival. The Judge had to decide whether this was a case of passengers arriving late at the gate or whether they had been denied boarding.  The Judge found that this was denied boarding, and compensation was awarded. 

What happens without Safe Harbour?

Safe Harbour is an agreement between the EU and the USA agreed in 2000, relating to the usual rule that the Data Protection Act forbids personal data from being transferred outside Europe.  Safe Harbour was intended to be a system similar in quality to the European scheme, thus protecting data migrated to the United States.  However, in October 2015, the European Court of Justice determined that Safe Harbour was inadequate to meet European standards.  This has raised an immediate issue for those exporting personal data to the U.S, including airline data and PNR's, payroll data and  traveller information.  Following the ECJ decision, data controllers should rely upon "model contract clauses" and understand what data might be exported and the protection given by the other party. 

Compliance with the new Anti-Slavery Laws

The Modern Slavery Act 2015 requires companies with an annual turnover exceeding £36m to produce an annual statement which clarifies the steps which have been taken with suppliers to ensure they do not engage in using slave labour or engage in human trafficking.  This is likely to result in additional compliance provisions in contracts so that the Company can identify steps taken relating to its business and supply chain and internal policies relating to slavery and human trafficking relating to all of its suppliers. There is statutory guidance about how compliance can be achieved. 

For those dealing with consumers in the travel sector, further statutory protection has been provided by the Consumer Rights Act 2015 particularly requiring service providers to perform services with reasonable care and skill, within a reasonable time and at a reasonable cost.  If the service is performed badly, the consumer has a right to request performance be repeated, and a right to a price reduction.  There are specific provisions for class actions where a breach of contract occurs to enable groups of consumers to bring claims against the same supplier for defective services.

Once again, it's time to check and update contracts to take these new Regulations into account.

Originally published in Buying Business Travel. 

About the Author

Ian is a leading Commercial Lawyer in the airline, business travel and leisure travel sectors. He is a well-known and respected key adviser to travel businesses, and regular presenter and commentator on airline and travel trade issues.

Ian Skuse
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