EU Air Passenger Rights

Author: Dr. Luis Martín-Domingo

1. Background on the EU Passenger Rights

Taking into account the 1999 Montreal Convention, the premise being that both national and regional legislation should be consistent and in accordance with international agreements, where they exist.

The European air transport market was liberalised through a series of packages commencing in the 1980’s. This led to the creation of a single market for aviation in the 1990’s which saw new airlines entering the market, some of them applying new business models as for instance the Low-Cost Carriers (LCC). The increase of competition among airlines resulted in lower fares to air passengers.

In order to secure increasing level of standards for passengers, in terms of services, the European Union (EU – previously the European Community – EC) adopted Regulation (EC)261/2004, (herein, the Regulation) introducing common rules on compensation and assistance to passengers in the event of denied boarding, cancellation and long delay of flights.

2. The EU Regulation – (EC)261/2004

On 11 February 2004 the European Parliament established common rules on compensation and assistance to passengers in the event of long delay, cancellation and denied boarding through the Regulation, which entered into force, one year later, on 17 February 2005.

Taking into account the geographical scope of the Regulation (EC, 2016) it limits its scope to passengers departing from an airport located in the territory of a Member State to which the Treaty applies and to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies if the operating air carrier is an EU carrier.

The Regulation also provides for a mechanism in terms of infringements of the Articles within the Regulation, whereby each Member State ‘shall’ designate a national enforcement body (NEB) responsible for the enforcement of the Regulation. The scope broadly relates to flights from airports situated on its territory and flights from a third country to such airports.

In the EU, the jurisprudence of the Court of Justice (CJEU) has aided the different interpretation of the Regulation which has occurred across the EU. A 2011 EC Communication highlighted three cases in particularly in terms of the decisive impact on the interpretation of the Regulation.

i) The IATA ruling, wherein the CJEU confirmed its full compatibility with the Montreal Convention and the complementary nature between the two legal instruments;

ii) The Wallentin-Hermann case, whereby the Court clarified that a technical problem in an aircraft could not be regarded as an ‘extraordinary circumstance’;


iii)  The Sturgeon case in respect to long delays, whereby the ECJ judgment held that a long delay of at least three hours at arrival at final destination may entitle passengers to the same amount of compensation as in the case of a flight cancellation.

In 2016 the European Commission issued interpretative guidelines on the Regulation wherein it recommended that passengers’ should make complaints to the NEB where the incident took place (EC 2016).  In terms of stages it was identified, however, that the complaints to the NEB should only be made after firstly raising the matter with the airline and then only where there is disagreement with the answer received from the airline; or, if a response has not been forthcoming from the airline.

The Commission recommended that airlines should furthermore reply within a 2-month period.  It was identified that NEB’s are not required to take enforcement action against airlines for each individual complaint; however, the Regulation does not prevent Member States from introducing legislation which compels the NEB to adopt measures for individual complaints.  NEBs however, do have the obligation to provide informative answers to address passenger’s complaints and should take actions against air carriers which infringe the Regulation.

3. Rules on Compensation and Assistance to Passengers

The Regulation only applies to flights departing from the EU or flights from a non-EU country to the EU country with a european registered airline. For instance,  if a passenger flies with the German airline Lufthansa from Beijing to Frankfurt and arrive with a delay of 4 hours. In this case the passenger is entitled to compensation. However, if the same passenger uses Air China on the same routing, according to the Regulation, will not have a right to compensation.   

The Regulation can be difficult to interpret for passengers, so passengers should be informed by the airline about their rights when there is any irregularity. However, there is a conflict of interest for airlines when informing about potential compensations that they should be paying to affected passengers. This situation has resulted in new start up firms  commonly referred as claim management companies (CMC’s), which act as intermediaries between passengers and airlines.

In general it can be affirmed that passengers will be entitled to receive a compensation from airlines when arrive to final destination with more than three hours’ delay. This can be a consequence of

i) Denied boarding: which is often referred as ‘overbooking’ occurs when the passenger is in time at check-in desk, but not allowed boarding the booked flight.  Airlines needs to provide an alternative flight, which arriving with more than three hours’ delay entitles the passenger for a compensation.

ii) Cancellations: of flights by airlines might entitle passengers for compensation. It depends on the moment passenger are informed about the flight cancellation.

  • When passengers are informed with more than 2 weeks in advance, passengers are not entitled for compensation.
  • When passengers are informed between 14 days and 7 days in advance, passengers are entitled for compensation if the alternative flight provided arrives with more than four hours to the final destination.
  • When passengers are informed within 7 days before the flight, passengers are entitled for compensation if the alternative flight provided arrives with more than two hours to the final destination.

iii) Delays of flights resulting in passengers arriving to their final destination with a delay or three hours or more are entitled to a compensation.

Extraordinary circumstances will prevent airlines to pay economic compensations to passengers. Some examples can be bad weather conditions (e.g. heavy snow affecting operations), strikes from personnel from other organizations (e.g. air traffic controllers) or natural disasters (e.g. Eruption of Iceland’s Eyjafjallajökull volcano that closed the European air space for few days in 2010). However, technical problems on the aircraft or strikes by airline personnel are not considered extraordinary circumstances.  

The compensation amount will depend on the flight distance

i)  250 Eur for flights up to 1500 Km

ii)  400 Eur for intra EU flights of more than 1500 and other flights between 1500 and 3500 Km.

iii) 600 Eur for flights over 3500 Km between the EU and other destinations

4. Regulation Controversy

The regulation has never been welcomed by airlines operating in Europe. For instance, the association of Airlines for Europe (A4E), founded in 2015 by a combination of legacy carriers and low cost carriers, made a clear call for the revision of the regulation:

“A4E also supports legislation on air passenger rights that make the rules fairer, clearer, and easier to apply. The revision of Regulation 261/2004 on air passenger rights is extremely important in terms of legal certainty and a fair balance of consumer and industry interests. The European legislators need to urgently proceed with the file. The current Regulation 261/2004 is too detailed and prescriptive and, at the same time, too vague on essential points. This continues to generate numerous Court rulings across the EU, with judges interpreting the Regulation in varying ways and often extensively (A4E, 2020).”

The International Air Transport Association (IATA), position is very similar and demands a revision of the regulation: “Rather than regulations “defending” passengers, they should be framed as a partnership between consumers and the industry, to encourage competition, innovation, consumer confidence and enhanced air connectivity (IATA, 2021).

The Association of Passengers Rights Advocates (APRA), which help passengers with their claims to airlines, has a different view: The proposed revision of Regulation (EC) 261/2004 would thus de facto
harm air passenger instead of help them. APRA recommends for the European Commission to
return to the drawing board and strongly appeals for the withdrawal of the current proposal
(APRA, 2021).

A revision of the regulation carried out by the EU in 2010 identified that the wording of the regulation was subject to different interpretation. Another finding of the revision was the ineffective enforcement undertaken in a number of Member States. Thus, some revision of the regulation might be required at some point.

One of the main objectives of the EU when implementing the Regulation was to secure high standards of service, after the European market was deregulated. Perhaps one element to add to the discussion would be up to what extend such objective has been achieved. For instance, in terms of number of flights cancelled and long delays.


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