Australia: The volcanic ash crisis - One year on …

Legalflyer - July 2011

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:

  1. 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.
  2. 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.
  3. 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:

  1. The harmonised enforcement of the rights afforded by the regulation throughout the EU;
  2. Facilitation of enjoyment of the passenger rights in practice, including a clear and easily accessible means of complaint handling; and
  3. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

This article is part of a series: Click Update on the inclusion of aviation into the EU Emissions Trading Scheme for the next article.
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.