Aviation Law
In this edition of our series on the air passenger rights reform we examine the changes to a passenger’s right of reimbursement and rerouting under Article 8. For over two decades the unclear nature of rerouting costs has been a source of significant financial risks for carriers. The reform tries to address this by introducing a standardized timeframe and a statutory liability ceiling.
As already specified in the last newsletter edition on delays, 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. According to Article 8(5) options (a) and (c) remain in place until the passenger accepts a carrier’s offer according to Article 8(1)(b) or until the decision to self-rerouting according to Article 8(3). We will take a closer look now on how the rerouting regime works.
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.
Rerouting options according to Article 8(2)
Under Article 8(2) the operating carrier is required to offer the passenger at least one specific rerouting option falling into one of the following alternative categories, including flights with third carriers, routes from alternative airports with a transfer or alternative transport model like rail or bus or ship. The option shall enable the passenger to reach the final destination at the earliest opportunity with a total travel time as close as possible to the originally scheduled itinerary.
Upon the departure of any third-party services, the original operating carrier’s duty to provide information, care and assistance terminates and transfers onto the new service operator. The original carrier, however, remains liable for any final arrival delays and possible compensation under Article 7. In case of a second disruption, one concerning the new service operator’s transport, it might not be as clear how the liability is distributed. This shows that the certainty asserted in this subparagraph does not in fact exist in practice.
The new three-hour offer window in Article 8(3)
The reform introduces a strict time limit for airlines to take action before self-rerouting will be possible for the passenger. If a passenger chooses to be rerouted at the earliest opportunity under Article 8(1)(b), the operating air carrier now has a three-hour window to provide a specific rerouting offer. It is unclear, however, when this three-hour window commences. Only in the case of cancellation it is made clear that it begins from the time of scheduled departure indicated on the passenger’s ticket.
To comply with its duty, the airline must offer rerouting under “comparable transport conditions” according to Article 8(3) subparagraph 1. Otherwise, the passenger has a right to refuse the offered rerouting options. This right to refusal is also granted according to Article 8(4), if the original stopovers change in the presented rerouting option(s). Only if the airline actually fails to provide an offer within this three-hour window the passenger is entitled to arrange his/her own alternative transport. If the carrier presents a comparable offer within this timeframe, unauthorized passenger self-rerouting does not trigger a reimbursement obligation according to Article 8(3).
While recital 27 tries to give an answer to what “comparable transport conditions” are, it only ends up stating facts that did not require any clarification. It is not contributing to any kind of clarity when it comes to for example other modes of transport. It is also unclear, whether an airline might have to reroute the passenger in a higher class due to the prohibition of rerouting in a lower class.
Most importantly, the statutory rerouting process also establishes cooperation duties for the passenger, namely he/she has to inform the carrier about the request to be rerouted according to Article 8(1)(b) and about the intention to organize self-rerouting options. This requires modes of direct communication between the passenger and the airline, which might lead to further complications when a third party is involved. However, the reform fails to provide clear consequences on what happens, if the passenger does not comply with his/her duties.
The financial shield: the 400 % liability cap
Perhaps the most significant clarification for the industry in this reform is the introduction of a maximum liability threshold for self-rerouting. Where a passenger arranges his/her own transport after the three-hour window has expired, the airline’s reimbursement duty is now capped at 400 % of the full price of the ticket in accordance with Article 8(3) subparagraph 3. This cap includes the ticket price and, where applicable, intermediary fees. Passengers are explicitly required to limit his/her expenses to those that are “necessary, reasonable and appropriate”. While it is a positive attempt that the legislators introduced a financial limit, it is also set at a very high level. Airlines should be cautious about the fact that exhausting this limit is in fact not always “necessary, reasonable and appropriate”.
The passenger has to be reimbursed within 14 calendar days after submitting the reimbursement request. Only when an airport managing body activates its contingency plan, may the carrier extend the time for the reimbursement up to 30 calendar days.
Additional carrier duties
Under Article 8(6) of the reformed Regulation, operating air carriers are legally required to provide all information regarding a passenger’s rights under Article 8 in paper form upon request. Furthermore, the carrier must ensure that the specific choice selected by the passenger is explicitly confirmed on a durable medium. According to Article 2(z)(ae) it means any instrument that enables a passenger to store information in a way accessible for future reference, for a period of time adequate for its purpose and which allows the unchanged reproduction of the stored information. It is used to ensure that a passenger’s explicit agreement or choice regarding rerouting options and reimbursement is properly confirmed and stored.
Under Article 8(7) of the reformed Regulation, operating air carriers must display all passenger options under Article 8(1) clearly and neutrally, strictly prohibiting pre-selection, default settings, or additional procedural burdens that favor one option over another.
Missed connections and rerouting options
The new regulation explicitly links a missed connecting flight to the general rerouting procedure codified in Article 6b by referring to Article 8(1)(b). Therefore, the carrier is responsible for providing rerouting at the earliest opportunity and care under Article 9.
If the carrier is not able to reroute the passenger within five hours of the scheduled time of departure of the missed connecting flight, it must immediately offer a full ticket reimbursement under Article 8(1)(a).
Moreover, a possible compensation under Article 7 in the case of a delay of over three hours is calculated from the original time of arrival at the final destination in accordance with Article 6b(3).
Conclusion
The changed framework of Article 8 regulates how carriers must manage the rerouting at the earliest opportunity. By codifying a strict three-hour window, this limits the time for carriers to offer rerouting before the passenger may take action. While the obligation to consider flights of third carriers and alternative transport networks like high-speed rail under comparable conditions manifests the complexity of rerouting processes, it is balanced out by a financial limitation: The new 400 % statutory liability cap on rerouting done by the passenger. This effectively ends an exposure to the risk of unlimited financial liability but also poses the new risk of very high rerouting costs in general.
