Procedural aspects of Regulation 261
The European Commission recently issued a notice containing guidelines for the interpretation of Regulation 261/2004. In the last couple of newsletters we have – on the basis of the newly issued guidelines – focused on some of the issues we often see in our daily work. In this last newsletter in the series regarding the guidelines we will focus on some of the procedural aspects of the regulation.
When passengers encounter delays, cancellations, etc. and wishes to be compensated, the passengers must first turn to the airline in order to make a formal complaint.
The European Commission’s recommendation in the Guidelines is that the airlines should reply within two months. If the passenger is not satisfied with the outcome of the complaint the passenger will have to turn to the National Enforcement Body (NEB) or the courts.
The national enforcement body
In order for Regulation 261 to be effective, the member states have to designate a National Enforcement Body were passengers can submit their complaint to. In Denmark, the Danish Transportation and Construction Agency (the Transportation Agency) is the designated NEB.
The NEB is – among other things – responsible for an effective enforcement of Regulation 261. According to the Guidelines and the case-law of the CJEU (C-145/15 and C-146/15), Regulation 261 makes it possible for countries to choose how this responsibility can be carried out, leaving room for flexibility.
Airlines should therefore be aware of the fact that the NEB can have different roles and procedures in different countries. In some countries, the NEB solely uses passengers’ complaints in their general monitoring and sanctioning of airlines which are not complying with Regulation 261. Thus, in these countries the NEB does not assist individual passenger claims regarding compensation pursuant to Regulation 261.
However, the CJEU has confirmed that the Regulation does not prevent countries from adopting legislation which obligates the NEB to apply measures in response to individual complaints. These measures can either be enforceable or not. In Denmark, decisions from the Transportation Agency must be complied with, otherwise the airline may be prosecuted. However, the decisions are not binding for the courts. Ultimately, passengers must therefore turn to the courts in Denmark if the airline is unwilling to act according to the decision of the Agency.
Jurisdiction of the courts
If passengers choose to go through the court system they must file a lawsuit in a court with jurisdiction.
When it comes to jurisdiction, passengers can – according to the Guidelines – choose between three different jurisdictions. The country
- where the airline is domiciled,
- where the agreed airport of departure is located, or
- where the agreed airport of arrival is located
Thus, if a passenger buys a ticket from London Heathrow Airport to Copenhagen Airport, but the plane is diverted to Malmö Airport in Sweden, the possible dispute arising hereof can be brought before either an English or Danish court.
In regards to procedural aspects, it is very important to note time limits for filing a complaint. However, Regulation 261 does not establish any time limits for bringing actions in the national courts. Thus, this issue is subject to the national legislation of each country and its notion varies from country to country.
In general, the time limits are calculated from the day of the event (e.g. the delay / cancellation). The only way to suspend the time bar is by bringing action before the courts. However, be aware that this is only in general.
Another important thing to note is that inaction runs simultaneously with the time limit. This means for instance, that in Sweden a case can in general be dismissed after 4 years of inaction from the passenger. In Denmark, no specific limit applies, except the general 3 year time bar.
Easy filing systems and airlines’ response to passengers
It is the opinion of IUNO that – in order for airlines to minimize the administrative work and to avoid unnecessary legal action from claims farmers – airlines should develop an accessible portal for passengers to submit their claims. Most of the international airlines have this system already. The Commission elaborates on this aspect and recommends that the airline should reply within two months. After that period of time, the passenger can freely apply the case to the NEB or the court. Thus, IUNO would advise airlines to let the passengers know that they have a maximum response time of two months and in this regard refer to the Commission’s Guidelines.