As we reported on 19 April 2010, the eruption of Iceland's Eyjafallökull volcano, and the resultant ash cloud, caused the worst air traffic crisis in recent history, with the cancellation of over 100,000 flights, affecting over 10 million people. However, the ash cloud crisis appears to be far from over, with further disruption caused by Iceland's Grimsvotn volcano erupting in May 2011 and on the other side of the globe, Chile's Cordon Caulle which erupted in June 2011 causing chaos in Australian airspace. In fact, at the time of writing, yet another Icelandic volcano, Hekla (known by locals as "the gateway to Hell"), was also threatening to erupt...
So one year on, what has changed? Are the aviation industry and its regulators better prepared for the next crisis? This article examines the measures which have been implemented since last year and looks at what further changes still need to be made.
Since April 2010, a number of measures have been taken to ensure better coordination and improved preparedness for similar air traffic crises, including the following key developments:
- The creation of the European Aviation Coordination Crisis Cell (EACCC), to manage the effective coordination of a crisis in real time. The EACC, which can meet on a daily basis, is a core group co-chaired by the European Commission and Eurocontrol to include representatives from organisations including EASA, Air Navigation Services Providers, airlines, and airports and, as necessary, other organisations such as the National Civil Aviation Authorities and MET offices.
- New guidelines for managing volcanic ash for Member States and airlines which were published by the European Commission. In practice the guidelines provide for a graduated response to a crisis, whereby airlines submit safety risk assessments for their operations, based upon ash density maps produced by the Volcanic Ash Advisory Centre (VAAC) in London; and member states' safety authorities can then give permission (or not) to operate, based on the submitted assessments.
- The implementation of Single European Sky, pursuant to which EU member states are joining forces in managing their airspace.
Commentators agree that the new measures, including those above, have proven to be effective in responding to the recent ash clouds and a better co-ordinated response was evident during ICAO's volcanic ash crisis exercise on 13 and 14 April 2011 "VOLCEX 11/01".
However, whilst there have been many positive developments in addressing practical co-ordination between the authorities and stakeholders, crucially there has been little guidance on and no changes made to the relevant EU passenger rights legislation. EC Regulation 261/2004 was exposed by the crisis as sorely lacking both in the clarity of its provisions and the uniformity of its application, resulting in legal chaos which is still in evidence today with a large number of passenger claims still pending with national courts and the National Enforcement Bodies (NEBs).
The European Commission's April 2011 report to the European Parliament and Council, examining the application of Regulation 261/2004, admits that "the novelty of some provisions of the Regulation has led to different interpretations, and thus varied application, among air carriers and national enforcement authorities (NEBs), rendering it difficult for passengers and stakeholders to understand the scope and limits of the rights set out".
The report found according to that there were three main areas where further improvement is necessary in respect of Regulation 261/2004:
- The harmonised enforcement of the rights afforded by the regulation throughout the EU;
- Facilitation of enjoyment of the passenger rights in practice, including a clear and easily accessible means of complaint handling; and
- Raising awareness about the rights afforded by the Regulation - this needs to be done by the EU and by individual airlines.
The report identifies a number of measures to be taken in addressing each of these areas, as follows:
1. The harmonised enforcement of the rights afforded by the regulation throughout the EU.
The Commission's report found that EU wide enforcement by NEBs at a national level has varied substantially, potentially distorting competition between air carriers and causing passenger frustration at the lack of enforcement. Although the NEBs now work together informally (as the NEB network) to seek to agree a coordinated approach on enforcement, further coordination is needed.
Passengers were concerned that NEBs do not handle complaints quickly and efficiently; that decisions of the NEBs are not always binding and therefore are not always followed by carriers or recognised by judges; and that there is a lack of monitoring, measuring and publication of information on the performance of operators, relating to the application of the Regulation.
In order to redress these concerns, the following measures are proposed:
- The Commission will work with the Member States to overcome shortcomings in their national complaint handling bodies to ensure consistent complaint handling and uniform enforcement of the Regulation. The report noted that national authorities have not made use of the CPC Regulation, Regulation 2006/2004, which covers Regulation 261/2004, to investigate and enforce cross-border infringement on collective consumer interest.
- The Commission will promote a more uniform and quick handling of complaints, notably by submitting to the NEB network Group a common standard form to request information from carriers and a proposal on the competent NEB.
- The NEB Network should implement internal working rules to (i) facilitate the adoption of common decisions on the interpretation and enforcement of the Regulation; and (ii) encourage the exchange of information between NEBs on relevant national administrative and judicial decisions. Crucially, NEBs will also be encouraged to take the necessary enforcement measures against those few carriers which have refused to comply with the Regulation.
- The NEBs will also be encouraged to coordinate at national level with the relevant aviation regulatory authority regarding enforcement measures against carriers.
- An Air Passenger Rights (APR) Consultative Group is being created to reflect the industry and passenger perspectives on all issues related to air passengers' rights.
- The Commission will work with the NEB Network and the APR Consultative Group to encourage airlines and other relevant operators to regularly report relevant data on the application of the Regulation to NEBs.
- A more level playing field will be implemented among carriers by encouraging the publication of issued sanctions and/or of the operators' overall performance in complying with the Regulation.
2. Facilitation of enjoyment of the passenger rights in practice, including a clear and easily accessible means of complaint handling;
The report observed how the crisis had highlighted some of the limits of the Regulation, and the Commission now clearly recognises that the shortcomings "related to the wording and the content of the Regulation, [which] cannot be solved without an amendment of the current rules". Most notably:
Carriers were particularly concerned at the lack of a limitation of liability relating to the 'right to care' in extraordinary circumstances beyond the carrier's control (e.g. accommodation costs), which merits further assessment. An assessment of the financial cost of the crisis is currently ongoing and the aviation industry can assist in that process by providing necessary relevant data relating to passenger claims "to ensure no excessive burden is placed on the aviation industry whilst also ensuring that citizens do not bear the financial cost and inconvenience of natural catastrophes alone".
Passengers were concerned that the Regulation has not been applied by some carriers, particularly the right to be offered re-routing at the earliest opportunity by comparable transport conditions and to receive care whilst waiting to be re-routed. The Commission noted that passengers should be re-routed in comparable conditions based upon their class of travel, not the price they had paid for their ticket (e.g. a passenger who had booked a low cost economy ticket should not be precluded from being re-routed in the same class on a more expensive carrier).
- In this connection, the Commission proposes to launch an Impact Assessment into the proportionality of the current measures, with a view to proposing further measures on Air Passenger rights in 2012, including of a legislative nature, in coordination with the ongoing revision of the Package Travel Directive (90/314/EEC).
3. Raising awareness about the rights afforded by the Regulation - this needs to be done by the EU and by individual airlines.
The report noted that many passengers are still not aware of the rights afforded to them by the legislation. As such the Commission will:
- work with the NEB Network and the Air Passenger Rights Consultative Group to encourage airlines and other relevant operators to regularly report to NEBs on relevant data on the application of the Regulation for publication; and
- raise passengers' awareness on their rights through widespread communication, such as the ongoing information campaign on passengers' rights, as well as through the NEB Network and relevant consumer networks.
While it will come as welcome news to all concerned that the Commission remains committed to providing further clarity on Regulation 261/2004, it is disappointing that any further measures - including crucial proposed legislative amendments - will not even be announced until sometime in 2012 and that there is no timetable for any such legislative amendments to come into force.
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