Aviation Law
In the second edition of our series on the reform of the EU Air Passenger Rights Regulation 261/2004, we address one the most fundamental aspects of the reform: the explicit statutory inclusion of flight delays in Article 6. For two decades, delay compensation was a product of CJEU decisions. This reform now regulates it explicitly with some very critical technical adjustments.
For airlines this reform also includes one very big advantage: the standardization of arrival times, moving away from the more passenger-friendly “door opening” standard toward the industry-standard “on-block” time. Additionally, the introduction of statutory compensation reductions might offer a meaningful financial relief in specific scenarios.
The new arrival standard: the “on-block” time in Article 2(x)
One of the most significant gains in legal certainty for carriers is the new definition of arrival time. Up until now the definition of arrival delay was based on case law and followed CJEU jurisprudence. Arrival was defined as the time when at least one cabin door opens, allowing passengers to leave. After the reform Article 2 (x) now explicitly refers to “the time when the aircraft reaches the arrival stand and its parking brakes are engaged (on-block time)”.
This can be described as one positive outcome for airlines with the reform. On-block time is a verifiable, automated data point. By moving the relevant point in time back from door opening to brake engagement, airlines might gain a few minutes that can be critical to prevent a flight from crossing the three-hour compensation threshold.
Procedural thresholds: the “upon request” mandate and 9-months limit
The reform introduces stricter procedural requirements for passengers to exercise their rights in general irrespective of whether based on delay or cancellation:
Under the new Article 6(4) compensation is not automatic, passengers only have a right to receive it “upon request”. This reinforces the airline’s position that they are not required to proactively pay out any funds until they a receive a formal request for payment .
Furthermore, Article 7(9) establishes a uniform EU-wide limitation period for compensation claims. All requests for compensation – irrespective of whether it is based on a delay or a cancellation – must be submitted by the passenger within nine months of the actual date of departure. This provides carriers with significantly higher financial predictability compared to the previous patchwork of national statutes of limitation.
Financial relief: strategic compensation reductions
The reform also codifies specific scenarios in Article 7(2) where carriers can reduce their compensation liability for delays. Carriers may reduce compensation by 50 %, if the delay at arrival at the final destination does not exceed four hours. Currently, reduction rights are only codified in respect to re-routing after cancellation. These rights remain in place with the following adaptation: If a passenger is rerouted after a cancellation and the new flight departs earlier than planned, the carrier may reduce compensation in accordance with Article 7(3), meaning by 50 % if the flight is brought forward by less than two hours and 25 % for less than three hours.
Explicit integration of delay and tarmac protocols
A new “disruption” category (“tarmac delay”) is introduced in Article 1(y) for periods exceeding thirty minutes where the aircraft remains on the ground after doors closed (departure) or after touchdown (arrival). In the event of a tarmac delay, the operating air carrier shall, to the extent possible, provide passengers with regular and real-time updates.
According to Article 6a carriers must ensure adequate heating or cooling, toilet access and free drinking water (unless safety-reconciled). There is also a 2-hours limit, meaning that once a tarmac delay reaches two hours at a Union airport, the aircraft must proceed to a disembarkation point. The carrier can, however, decline disembarkation “if there are safety, immigration, air traffic control or security-related reasons why the aircraft cannot leave its position on the tarmac”. One example could be if Air Traffic Control (ATC) informs flight deck that the flight is authorized for imminent take-off.
When it comes to the questions, whether the passenger has additional rights, such as compensation, the referral in Article 6a (4) to Article 6 is to be noted. It can be assumed that this is a reference to the underlying legal provision, meaning that all of the requirements set forth in Article 6, including e.g. the necessary delay of three hours for compensation, must also be met. Otherwise passengers would be in a better legal position in the event of a tarmac delay than in any other disruption situation.
Art. 6 vs. Art. 8: “limited” vs. “unlimited” choice
Another very important point for airlines involves the referral from Article 6(3) and Article 6b(2) (delay) to Article 8(1)(a) (reimbursement). The questions is what are the legal consequences in case of delay/tarmac delay when it comes to re-routing and reimbursement under Art 8?
Under the general Article 8(1), passengers usually have three options to choose from: (a) reimbursement, (b) rerouting at the earliest opportunity or (c) rerouting at a later date. When a delay at departure reaches five hours, the regulation specifies in Article 6 (3) that the carrier shall offer the choice of reimbursement in accordance with Article 8(1)(a). That the referral is explicitly mentioning the five hours threshold before the right of reimbursement kicks in reducing the three options from Article 8(1) in case of a delay and a tarmac delay is supported by the fact that this referral was explicitly changed from a referral to the whole Article 8 to a referral to only Article 8(1)(a) in the last step of the drafting process of the reform.. Therefore with the change of the wording this was a very conscious decision to delete the other two options including the earliest possible or a later rerouting.
This airline-friendly interpretation is based n the fact that the wording in Art. 6(3) is narrower than the general Art. 8. By specifically pointing to point (a) reimbursement, the legislator creates a “limited” legal consequence for long departure delays. Airlines might argue that at the five-hour mark, the proactive mandatory offer is strictly the refund, preventing situations where a passenger demands expensive last-minute rerouting with a competitor. This limits open-ended liability during the initial phase of a major disruption.
Of course, there is no guarantee that the national courts or the CEUJ will not expand the rights of the passengers and opens the full range of choices of Art. 8 to be exercised by the passengers. Nevertheless, what would counteract the explicit decision of the legislator.
Conclusion
The reform effectively trades a more passenger-critical arrival definition for a more carrier-oriented and industry standard definition. While the three-hour compensation limit remains, the shift to on-block time provides airlines with a much more predictable and manageable regulatory environment.
Moreover, airlines have gained possibilities to reduce compensation in some cases, which is an important advantage. Especially the new regulations on tarmac delays, however, raises new legal questions about compensation claims and can be expected to produce a variety of new cases for courts across the member states and possibly the CJEU to answer.
Finally, a very positive development is the introduction of the limitation period of 9 months. Passengers and Claim Management Companies will have to file the claims with the airlines soon after the event, which provides for certainty on possible liabilities resulting out of disruption at a much earlier state compared to the situation we see now.
