Denied Boarding Compensation - Summary of responses to second consultation
Summary of responses to the second consultation on the enforcement of the Denied Boarding Compensation regulation (EC) No. 261/2004 in the United Kingdom
Background
On 16 August 2004 the Department for Transport launched a consultation document on proposals for a set of enforcement Regulations aimed at ensuring industry compliance with the provisions of Regulation (EC) 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding, cancellations or lengthy flight delays. It was clear from the responses received that the proposed enforcement regime raised some concerns, particularly within the industry. In light of this, the Department carried out a review of the enforcement Regulations to see whether they could be simplified, and the potential regulatory burden lightened, without reducing the level of protection available to passengers. The result of that review was an amended set of enforcement Regulations upon which the Department again consulted.
This second consultation exercise closed on 11 February 2005. By 15 February eleven responses had been received, six from individual airlines and five from airline representative bodies. The majority of respondents were supportive of the Department's amendments, but a number of further comments and observations were made, some of which were directed at the provisions of the EC Regulation itself rather than the enforcement Regulations, and so fell outside the scope of the consultation. A summary of the key points raised during the second consultation follows, together with the Department's responses.
Key Issues
Level of fine for non-compliance
Five respondents commented on the level of fine proposed. Although now limited to a maximum of £5,000 per offence, two airline respondents considered the fine remained disproportionate, particularly for no-frills carriers where the potential fine would significantly exceed the fare paid. One respondent argued that the enforcement Regulations should allow for the imposition of non-fiscal judgements to be made on any carrier found guilty of a one-off offence, while another suggested that any fine should be waived until the outcome of the current legal challenge to the Regulation in the European Court of Justice (ECJ) is known.
Government response
As noted in the Government's response to the first consultation exercise, it is envisaged that the majority of cases where there is a dispute between a passenger and an airline over the entitlements provided under the EC Regulation will be resolved between the parties or through the small claims court. Enforcement action will usually only be considered where there is evidence of flagrant or systematic non-compliance. The enforcement Regulations provide for the courts to impose a fine, upon conviction, of up to level 5 on the standard scale (currently £5,000) for each offence. It does not follow that this maximum fine will be imposed on every occasion, and the court will consider the facts of each case when determining the penalty to impose. However, the maximum penalty for systematic non-compliance needs to be sufficient to deter repeat offending. The Government considers the proposed fine to be the most appropriate and proportionate penalty for non-compliance with the provisions of the Regulation in the circumstances detailed above.
Notwithstanding the current legal challenge to the Regulation before the ECJ, as stated previously, the Government has been advised that the Regulation will have direct application in the this country from 17 February and accordingly the UK will be obliged to establish effective, proportionate and dissuasive sanctions to ensure compliance.
Enforcement in other Member States
Five respondents commented on the application of enforcement action elsewhere in Europe. Respondents were concerned that the provisions of the EC Regulations should be enforced evenly in all Member States, in order to avoid the burden of compliance falling unfairly on UK carriers. Two respondents argued that the UK should postpone bringing in its enforcement regime until equal treatment could be guaranteed across Europe. Two respondents also commented that the UK appeared to be acting almost unilaterally in designating an enforcement body or in bringing forward enforcement Regulations.
Government response
The Government acknowledges the desire of airlines to ensure that the EC Regulation is enforced evenly across Member States, indeed the maintenance of a level regulatory playing field is a precondition for the continued success of the European single market in aviation. The majority of Member States have now designated a national enforcement body and the Government would expect the remainder to follow suit shortly. Any perceived lack of rigor in the actions of other Member States could not of itself absolve the UK from its obligation to put in place its own effective sanctions for non-compliance. It will be for the European Commission to investigate alleged inactivity in the enforcement of the provisions of the EC Regulation in other Member States.
Provision for the limiting of private prosecutions
One respondent expressed concern that the proposed enforcement Regulations would not preclude an individual passenger from bringing a private prosecution where the Civil Aviation Authority has chosen not to do so.
Government response
The Government's legal advice is that the proposed summary, non-imprisonable, offence for non-compliance with the provisions of this EC Regulation is not one to which it would be appropriate to apply a prior consent requirement.
Exemption from the provision of the EC Regulation for operators in small niche markets
Although going beyond the scope of the consultation paper, two respondents argued for the provision of an exemption from the EC Regulation, for those operations in small niche markets, or for carriers operating flights of less than 150 km, particularly where the geographical location of the service means that the operation can routinely be affected by adverse weather conditions.
Government response
The Government understands the position of the operators of such flights, but the EC Regulation has been adopted in its current form. It is applicable to all fixed wing passenger operations, and does not provide scope for Member States to grant individual exemptions from its provisions.
Enforcement action in the UK
One respondent argued that the enforcement Regulations should recognise various factors that can combine to create a cumulative delay over the course of an operating day, such as safety or security alerts and air traffic control delays.
Government response
As explained in the Government's response to the first consultation exercise, the Government is resolved to apply the enforcement Regulations with a light regulatory touch. However, the Regulation is clear that care and assistance should be provided where a lengthy delay occurs, regardless of the cause, unless the provision of that assistance would delay departure further. Airlines should therefore seek to comply with the provisions of the EC Regulation, as provided for.
Due diligence defence
While the majority of respondents welcomed the addition of a due diligence defence, one respondent considered that the second limb, dealing with information provided by a third party, was confusing and should be deleted.
Government response
The Government considers the second limb of this defence to be an appropriate requirement where an air carrier seeks to avoid liability by claiming to have relied upon information received from a third party. The same text has been used in similar defences in other UK domestic legislation and is considered to be sufficiently clear.
Recognition of the legal challenge to the EC Regulation in the ECJ
One respondent requested that the enforcement Regulations should acknowledge the legal challenge pending in the ECJ and the possible need to review the Statutory Instrument in light of the ECJ's ruling in due course.
Government response
While acknowledging the fact that the legality of the EC Regulation is currently the subject of challenge before the Court, the Regulation in its current form is due to enter force on 17 February. It would be inappropriate to attempt to prejudge the ruling of the ECJ or to reflect concerns of the industry on the face of the enforcement Regulations. Following the ECJ ruling, the Department will review the UK enforcement Regulations and make any necessary amendments.
