UK: EU Blacklist For Air Carriers

Last Updated: 26 January 2006
Article by Sue Barham

New rules on EU-wide blacklisting of airlines and on provision of information to passengers on carrier identity are likely to come into effect early in 2006 after the European Parliament approved the Commission’s proposals on 16 November 2005.

Hitherto, the banning of air carriers for safety-related reasons has been dealt with on a piecemeal basis by individual EU member states. The consequence is a lack of uniformity across the EU, with airlines subject to an operating ban in some countries but not in others.

The new EU regulation will provide for the establishment of a "Community list" of banned airlines and will require each Member State to enforce an operating ban within its territory in respect of those carriers listed. In order to establish the initial Community list, each EU member state will be required, within a month of the Regulation coming into force, to give to the Commission details of those carriers which that state has banned, together with the reasons for the ban. Within one further month, the Commission, applying "common criteria" which are set out in the Annex to the Regulation, will decide on whether those carriers should be subject to an EU-wide operating ban. If so, they will be placed on the Community list. Some assessments are that the new Regulation could lead to as many as 50 airlines being banned from operating in the EU.

Once the Community blacklist is established, the draft Regulation provides for its updating - to add or remove carriers from the list - by the Commission, either on its own initiative or at the request of a Member State. Although the idea is to promote cohesion across the EU as to which carriers may or may not operate in the EU, the draft Regulation does however also provide for individual Member States to impose or continue a ban in respect of a carrier who does not appear on the Community list if there is considered to be a specific safety issue affecting that particular Member State. It would seem, therefore, that there may remain a lack of uniformity across the EU.

Air carriers are to be given the opportunity to be heard in relation to any proposal to place them on the Community list. The impact on a carrier of an EU-wide ban is likely to be severe and the Regulation expressly recognises that such a hearing may have to be dealt with urgently. Time will tell whether the mechanism for hearing representations from carriers will be able to move at the pace necessary to address any carrier objections expeditiously.

The draft Regulation includes an Annex setting out "common criteria for consideration of an operating ban for safety reasons at Community level". Consideration of whether a carrier should be banned will require an assessment of whether the carrier is meeting safety standards. The following are some of the matters which are proposed to be taken into account:

  • Verified evidence of serious safety deficiencies on the part of the carrier, including persistent failure by the carrier to address deficiencies identified by ramp inspections, or an operating ban of the carrier by a non-EU country because of deficiencies related to international standards.
  • Lack of ability and/or willingness of a carrier to address safety deficiencies.
  • Lack of ability and/or willingness by the authorities responsible for regulation of the carrier to address safety deficiencies demonstrated, for example, by failure on the part of the third country regulatory authorities to implement and enforce relevant ICAO safety standards.

At present, although many countries maintain their own blacklist, they do not make the list available to the general public, one exception being the UK. The draft Regulation, however, will change that position. It is intended that the general public will have full access to the up-to-date Community list through the websites of air carriers, national civil aviation authorities, EASA and perhaps through the displaying of a notice at airports.

The other important aspect of the draft Regulation concerns the provision of information to passengers as to the identity of the carrier who will operate the flight for which a passenger holds a reservation. This part of the Regulation applies to "air carriage contractors", i.e. either the carrier which sells a ticket to a passenger or, if the flight forms part of a package holiday, the tour operator or, if a package or seat-only sale is made by an agent, the agent in question. The basic obligation will be that the "air carriage contractor" must, at the time the reservation is made, inform the passenger of the identity of the operating air carrier. An amendment to the draft Regulation’s provisions approved by the EU Parliament addresses one of the main objections the package travel industry had to the proposed new rule. Tour operators will often not be in a position to tell their customers the definite identity of the airline who will operate the flight element of the package at the time a holiday booking is made. Frequently, bookings are made many months before the tour operator has finalised its charter arrangements with the carriers concerned. Tour operators were concerned that compliance with the Regulation would therefore be impossible from their perspective. The draft Regulation now requires that, if the precise identity is not known at the time of reservation, the passenger must be told who the air carrier is likely to be and must then inform the passenger definitely as soon as the identity is known. This should ease the concerns of the package travel industry.

The information obligation applies to any flight which is part of a contract of carriage which started in the EU and, broadly, the flight is either departing from or returning to an EU member state. To take an example, if the passenger has a return trip ticket London-New York-London, he must be informed of the identity of the carrier who will be operating both sectors of the booking. However, a passenger who books to fly New York-London-New York has no such entitlement in respect of either sector of his air travel.

The draft regulation requires member states to establish "effective, proportionate and dissuasive penalties" for infringement of the information requirements. It can be expected that, in line with usual practice in implementing EU legislation, the UK will establish regulations which make non-compliance a criminal offence.

A final point to note is the consequence for a contract of carriage of the intended carrier being placed on the Community list of banned air carriers, necessitating cancellation of the flight. In these circumstances the draft Regulation:

  • provides that passengers are entitled to reimbursement or re-routing in accordance with their rights under EC Regulation 261/2004 on denied boarding and cancelled or delayed flights; and
  • if the flight is not covered by EC Regulation 261/2004, for example because it was to be operated into the EU by a non-EU carrier, it imposes an obligation on the air carriage contractor to provide reimbursement or re-routing. Bearing in mind that the air carriage contractor may simply be the travel agent who sold the air ticket, this latter provision could potentially be onerous; the travel industry will wish to examine the draft approved text closely and consider whether representations should be made to the Commission in relation to this aspect of the Regulation.

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.

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