This article was written by Robertas Pogorelis. The opinion of the authors does not necessarily correspond with that of the editorial team. Want your opinion to be featured on AeroTime? Send us a line at [email protected].

The European Union is boasting about being the first “comprehensive” passenger rights area in the world. And rightly so: no matter whether you are an air, rail, bus or boat passenger, your rights are protected.

Well, SOME of the rights. And in some cases only... Still, it’s better than in most parts of the world. Indeed, many countries have taken the EU air passenger rights legislation as an example.

However, it is far from perfect. Since the start of its application, many problems have become evident. Some of them should be resolved by its update, which is currently under discussion in the EU Council and the European Parliament.

Since the beginning, airlines, especially low-cost ones, have considered the EU passenger rights regulation as placing a disproportionally high burden on them. Indeed, when you pay 10-50 euros for a ticket and the airline has to pay you 400 euro compensation, this may seem unfair. As is the wish of many social media influencers and lawyers to “squeeze all the juice” out of those “rich” airlines. Without much understanding that at the other end there are hard-working people running a very difficult business, often at a considerable initial loss.

Yet the rules are there to ensure fairness and protect passengers, who are the weaker party in the equation. So that the airlines don’t cancel flights for the mere reason of unprofitability. So that the passenger is assisted in case of cancellations or delays, and is compensated for potential losses in similar cases.

In many cases the EU air passenger rights regulation helps. Yet in some cases it doesn’t, when in fact it should. Below are just some examples.

Delays on connecting flights: what rights for passengers?

Take a passenger who has a ticket from Vilnius to Singapore via Istanbul. His Vilnius-Istanbul flight gets delayed, so he misses his second flight and arrives at his destination with considerable delay.

Although this is not stipulated in the current regulation, the European Court of Justice (ECJ) has equalised any delay longer than three hours to a cancellation in terms of passenger compensation. A harsh decision on airlines, which are now expecting to extend this period to five, nine or twelve hours depending on the flight time (this is in the planned update).

The whole regulation applies to flights operated by EU carriers, and also to flights operated by non-EU carriers from EU airports. It would simply be legally unenforceable otherwise: the EU has no jurisdiction on non-EU businesses operating outside the Union. So in the above example with the Istanbul-Singapore flight, the delayed flight operated from an EU airport (Vilnius), therefore the regulation is applicable, the ECJ has said. It should be clearly stated so in the updated regulation, whenever it’s adopted and enacted (count at least two years from now). Yet the airlines argue that it is unfair to them: imagine the first flight was only delayed by 40 minutes, yet it still caused the passenger to miss his connection in Istanbul for Singapore, so the airline owes him a hefty 600 euros compensation.

A somewhat different situation occurred to myself. The first flight to Istanbul was on time, yet the second one got delayed by five hours for operational reasons. The delay happened to be overnight, so I was offered a free airport lounge access. After the trip I claimed compensation. Both the airline and the Lithuanian Civil Aviation Administration refused, saying that the problem occurred with a flight outside EU jurisdiction. Later I addressed lawyers - the claim is still under consideration. Well, in practical terms, my routing and delay was identical to that discussed previously, in the case of delay with the first flight and missing the connection. So if the airline owes the passenger compensation in that case, why not in this one? Unfortunately the proposed update only speaks about delays in the cases of missed connections.

Yet even after a positive decision regarding compensation in similar cases, the responsibility is not always clear. Imagine the Istanbul-Singapore leg were operated by a different airline than the Vilnius-Istanbul leg. The whole ticket is on the first airline’s stock - yet the problem occurred with the second airline. Which one should compensate the passenger? It may seem unfair to ask compensation from the first airline, especially if its flight has been on time. Yet the second airline operates outside the EU, so the EU regulation may not be legally enforceable on it. Especially if you imagine a more exotic route, such as, say, Madrid-Lima-Cuzco, with the last leg operated by a minor Peruvian airline not having any representation in the EU. Well, just to be on a safe side, it may simply refuse any codeshare with EU-originating flights.

Danger: revoking passenger rights by “voluntary agreement”

There have been other innovations proposed, one of them especially unfavourable to passengers: a possibility for an airline and its passenger to reach a “voluntary agreement” on different compensation conditions than those provided for in the regulation. In practice it means the following: a stranded passenger is given a paper to sign, in which she rescinds any compensation rights that the EU has provided for. For a much lesser sum, or for a later departure without any compensation at all. In fact, some airlines do it already today. In many cases it is illegal, as it goes against the current EU regulation. If such a possibility appears in the updated regulation, the whole compensation mechanism becomes senseless. Therefore I do hope that this provision becomes deleted in the course of the negotiations. Knowing the strength of airline and passenger lobbies in Brussels, however, I only have limited hopes...

Limited improvements

To be fair, some of the other new provisions proposed are very favourable to passengers, such as an obligation to try to reroute the stranded or delayed passenger within 12 hours by any airline, or an obligation to keep the return booking in case the outward leg was not taken. The latter obligation only concerns the return leg, rather than any leg of a multi-segment booking. So if you book a ticket from London to Bangkok via Amsterdam, you will still be unable to board in Amsterdam. This allows airlines considerable leeway to set competitive prices in different markets, as they have done so far. However, consider such a booking: Vilnius-Beijing, Shanghai-Warsaw (or in fact Beijing-Warsaw). It is obvious that the second leg is essentially a return - yet will it be legally considered so? If not (and probably not), why should the passenger be treated differently than the one flying back from Beijing to Vilnius?

It is a pity that the updated proposal does not contain a much discussed need for an airline to include the standard-size hand luggage in the price of any ticket. Now it’s a complete chaos: some airlines allow a piece of luggage measuring 55x40x20 cm to be taken on board for free, others 56x40x22 cm, still others as little as 42x32x25 cm... As a frequent passenger, I can only hope that this proposal comes back one day.

Need for stricter regulation of travel agents

There is another serious issue that was never in the regulation, yet is should be. That’s stricter regulation of travel agencies selling airline tickets. Except for some low-cost airlines, most people still book tickets via travel agents, albeit online ones. According to the industry standards, any schedule changes more than one day before travel are normally handled by the agency that sold you the ticket, rather that the airline itself. To be more precise, the airline informs the agency, and then it’s up to the latter to inform the passenger and offer options to her.

Faced by fierce competition, online travel agencies have been forced to cut service costs. That’s why, when booking a ticket, they force the customer to choose between the options “no free service” or extra service - the latter, of course, comes with a fee. The problem is, any advance information about schedule changes and rebooking is considered “extra service” by such online agencies. So if you did not pay extra, you may not even get informed about an advance cancellation of your flight, even if the airline has informed the agency. And if you are a savvy traveller and have noticed the change yourself, try to ask your agency for rerouting - you will likely be asked to pay extra...

Of course, this is not in the spirit of the regulation. In fact, the EU law encourages the airline to inform the passenger directly about a cancellation, making the compensation amount directly dependent on the timing of such information. If the airline has informed the agency about the cancellation or a potential delay but not the passenger, this does not count. Well, it shouldn’t... Yet you may have to prove this in court, after having missed your business meeting due to belated information.

Thus there is an obvious need to state in the regulation that any involuntary changes to the original itinerary should be immediately communicated to the passenger and handled for free by any EU-based travel agency, and it should not be allowed to mislead a passenger otherwise by forcing him to pay for this basic service. Unfortunately this is not in the current proposal.

These are only several examples why we will not have a perfect EU air passenger rights regulation anytime soon, even after the update is confirmed. Let’s just hope that it does not become worse...