This Commission staff working document concerns complaint handling and enforcement by Member States of the Air Passenger Rights Regulations.

It seeks to show the Commission's on-going commitment to monitor the implementation of EU legislation on air passenger rights.

The first document on complaint handling and enforcement by EU Member States was published in 2011. It covered the period from 2007 to 2009 and related to Regulation (EC) No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.

The present document reflects the period from 2010 to 2012 (by comparing data, where possible, with the previous reporting period) and makes a step forward by also providing data related to Regulation (EC) No 1107/2006 of the European Parliament and of the Council concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

The present statistical document responds to the continuous calls from various sources (inter alia the European Parliament, Member States and air transport industry) for statistics on complaint handling and enforcement. The Commission services have taken over the task to present such data in the absence, in the current legislation, of reporting obligations.

To summarise, over the period reported ( 2010-2012 ), National Enforcement Bodies of the Member States (NEBs) received a total of 201 879 complaints under Regulation (EC) 261/2004 . The numbers recorded show that sanctioning as a means to ensure compliance with the Regulation was not widely made use of . NEBs applied sanctions rather as an exceptional remedy. Moreover, even where sanctions were imposed, Member States had difficulty in collecting them, partly owing to time consuming administrative and/or legal procedures.

On denied boarding , although the number of denied boarding situations significantly decreased since the entry into force of the Regulation, the number of complaints about denied boarding more than doubled in 2011 and their proportion remained stable in 2012 (7%).

On compensation , passengers may be entitled to compensation for flights where delay in arrival is 3 hours or more and when the delay is not due to extraordinary circumstances. According to the data available, within the period concerned and again with the exception of 2010, this potentially affected less than 0.4% of all flights in 2011-2012 (those which were delayed for more than 3 hours). In fact, this figure is an overestimate because it represents all delays, including those caused by extraordinary circumstances (in which case the obligation to offer compensation does not apply). The proportion of flights affected by the obligation of Regulation 261/2004 to offer reimbursement for long delays, including the exceptional year 2010, is on average 0.176% (0.273% for 2010, 0.130% for 2011 and 0.125% for 2012).

As regards Regulation 1107/2006 , the number of complaints recorded during the period covered is relatively low (a total of 514 complaints). The fact that the number of complaints reported by NEBs is relatively low might be due to several reasons such as the rate of awareness among persons with disabilities and/or reduced Mobility about their rights when travelling is still relatively low and the fact that they are still facing in air transport, complicated and time-consuming complaint handling procedures which might dissuade them from lodging a complaint.

The statistical document also gives an overview of the quantitative data for delays for the period concerned provided by Eurocontrol.

Lastly, the Commission proposed a revision of air passenger rights legislation which mainly aims at confirming and clarifying rights and ensuring a better application of the Regulation. This clarification is needed in the light of the many disputes observed between passengers and airlines. A better coordination of enforcement policies should ensure a more effective and consistent enforcement of these rights across the EU. But the proposal also fine-tunes the existing rights to ensure a more proportionate balance between the interests of passengers and those of the industry.

The Commission presents a Communication on the application of Regulation 9EC) 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

The Regulation became applicable in 2005 and in 2007 the Commission issued a Communication where the main shortcomings related to the application of the Regulation were identified with a set of remedial measures. After 6 years, the Commission is again assessing the implementation of the Regulation. This report is part of the Commission's work to remove obstacles to preventing citizens from effectively exercising their rights under EU law, as launched by the EU Citizenship Report 2010 "Dismantling the obstacles to EU citizens' rights".

Thus, the objective of this report is threefold: (i) to list the developments since the adoption that may have an impact on the application of the Regulation; (ii) to follow up the measures undertaken since 2007, taking stock of the improvements in its application and the remaining obstacles; (iii) to identify further actions to ensure at short term further improvement of its application within the current legal framework provided by the Regulation, and to evaluate possible changes that may help to better achieve its political goals.

The paper discusses developments since 2007 and notes that the number of passengers has increased by roughly 35% since 2000. It examines relevant case law and the lessons drawn from the volcano crisis of April 2010 , stating that there is no doubt that, without the Regulation, the chaos and cost for both European citizens and society as a whole would have been much bigger. NEBs now have to take the necessary measures against those few carriers which have refused to comply with the Regulation, to avoid both distortion of competition among carriers and passengers' frustration at any lack of compliance with the law.

Nonetheless, the volcano has illustrated some of the structural limits of the Regulation , which have been tested under the magnified scale of the crisis. The proportionality of some current measures, like the unlimited liability regarding the right to care under major natural disasters, may merit assessment. Member States and the Commission need to reflect on how to ensure that, in the future, this vital support which in the volcano crisis was provided solely by part of the industry is correctly shared and financed. An assessment of the financial cost of the crisis istaking place. However this requires industry to provide the necessary relevant data, which may not yet be available given that a large number of passenger claims are still pending with NEBs or the competent national Courts. Among the measures aimed at preserving the mobility of passengers in a crisis situation, the Commission will explore possible ways to enhance the level of preparedness of all the different actors concerned. The temporary lifting of operational restrictions such as night flight restrictions could be envisaged.

Follow up since 2007 : regarding the application of the Regulation the Commission in its Communication of 2007 identified different areas for improvement, namely, the lack of:

uniform interpretation and enforcement throughout the EU; clear and easily accessible means of complaint handling; and adequate information to passengers.

The paper outlines the actions taken to help harmonise the application and enforcement of the Regulation. It concludes, however, that:

the difficulties in the application linked to the lack of both uniform interpretation and consistent enforcement at national level are still high; the striking differences between complaint handling procedures, deadlines to answer passengers and the non-legally binding nature and the scope of the NEBs' opinions frustrate passengers as well as weaken the application of the Regulation; passengers' awareness of their rights does not appear to have increased.

While some of the shortcomings are directly linked to the Regulation, part of them stems from fragmented consumer protection legislation and the enforcement of such legislation in practice, particularly in cross-border situations.

The report identifies 12 actions to overcome the obstacles that passengers and the industry still face when applying and enjoying the rights provided by the Regulation. In the short term, these actions build on the mechanisms already in place. In the medium term, the Commission will carry out an assessment to evaluate the impact of the current Regulation and the different scenarios that may help to improve the protection of APR and to keep pace with evolving socio-economic realities. This should allow the Commission to announce in 2012 which further measures, including those of a legislative nature, may appear necessary.

Thus, the Commission will:

work with relevant Member States to identify and overcome obstacles in national law hampering proper application and uniform enforcement of the Regulation, and will assess the opportunity to remove them by the opening of infringement procedures if necessary; implement a mandate and internal working rules for the existing NEB network –which will cover the various APR regulations- to improve their coordination at an appropriate level and to facilitate the adoption of common and relevant decisions on the interpretation and enforcement of the Regulation, including further clarification on extraordinary circumstances and on a reasonable and proportionate right to care; encourage better coordination at national level between the authority that issued the operating licence and the NEB to enhance enforcement measures, and between the different national bodies appointed as NEBs to step up the exchange of information about carriers' compliance; structure its contacts with all other key stakeholders through the creation of an APR Consultative Group, reflecting industry and passenger perspective on all issues related to air passengers' rights. It will also work with the future APR Consultative Group to encourage air carriers to establish reasonable and precise timeframes to handle passenger claims; encourage NEBs to make use of effective tools to exchange information, including on relevant national administrative and judicial decisions, to seek further coordination of their databases and further reporting on the application of the Regulation; promote a better level playing field among operators across the European area, particularly by encouraging the publication of issued sanctions and/or of the operators' overall performance in complying with the Regulation; work with relevant Member States to identify and overcome shortcomings in their current national complaint handling bodies and procedures to lead towards a more efficient, quick and consistent complaint handling (at EU level) while ensuring the indispensable flow of information between the complaint handling and the enforcement bodies; ensure proper coordination of passenger rights legislation with the ongoing revision of existing or future EU measures on enforcement and redress, like those on alternative dispute resolution mechanisms or collective consumer redress; 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; work with the NEB Network and the APR Consultative Group to encourage airlines and other relevant operators to regularly report to NEBs on relevant data on the application of the Regulation; raise passengers' awareness on their rights, through widespread communication tools, such as the on-going Commission information campaign on passengers' rights, as well as through existing consumer networks, as the European Consumer Centres; launch in 2011 an impact assessment to assess the proportionality of the current measures in the light of experience and the costs of the regulation for stakeholders, with a view to propose further measures on Air Passenger Rights and in coordination with the revision of the Package Travel Directive (Directive 90/314/EEC) in 2012.

The Commission has presented its communication on the operation and the results of this Regulation establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

In order to have independent and unbiased quantitative and qualitative data on the application of this Regulation, the Commission contracted an external consultant. One of the most important characteristics of this study was the broad and intensive consultation of as many stakeholders as possible, including consumer associations and passenger federations.

After more than two years of application of the Regulation, progress has been made but substantial improvement is necessary if more consistent application of the rules by airlines and more consistent enforcement of the rules by the Member States are to be achieved. In contrast with the past, stranded passengers now have specific rights, but too often they are in a weak position compared to the airlines.

To address the issues for improvement, the Commission considers work in a number of areas to be necessary:

Improve enforcement : the Commission needs to enhance cooperation with and between the national enforcement bodies (NEB) in order to ensure an appropriate level of service to the public and better cooperation as a network. At a later stage, cooperation between the national enforcement bodies might take the form of a 'Code of Good Practice' dealing with issues not addressed by the Regulation such as: the timescale for complaint submission by passengers and the replies delivered by NEB, the conditions under which complaints can be referred between NEB and the languages acceptable for referred complaints as well as the improvement of the quality of statistics.

Clarify interpretation of those aspects of the Regulation which are unclear : the Commission intends to issue a communication setting out its interpretation of the Regulation after consulting with the NEB. It is expected that such Communication, while not being legally binding, will carry significant weight with airlines, facilitate the enforcement process and also make it easier for consumers to understand their rights under the Regulation.

Establish clarity between delays and cancellations : it would be helpful to discuss with airlines and NEB more precise criteria for differentiating between delays and cancellations. It would also be useful to improve collection of data to ensure that the status of a flight is clearly recorded both for purposes of enforcement of passenger rights and for better monitoring of overall service quality in the industry.

Establish guidelines on 'Exceptional Circumstances': exceptional circumstances seem to provide a source of persistent dispute between passengers, airlines and NEB. Assessment of such claims for cancelled flights accounts for about 30% of all complaints and takes up more than 70% of the resources of national authorities. As it stands at present, the Regulation makes no provision for financial compensation for delays.

Enhance the role of the NEB : given developments in passenger rights for other modes of transport, setting-up different NEB for different modes of transport once passenger rights have been created in all areas might be inefficient. The concept of ECC (European Consumer Centres), which are already dealing with cross-border (international nature of transport) complaints, could be an approach to help NEB in their day-to-day tasks. In addition, complaints could be centralised in this type of structure thereby ensuring that complaints handling is harmonised with no conflict of interest. It would also facilitate statistical follow up and monitoring (centralised), emphasising once more the horizontal and harmonised approach to passenger rights for each mode of transport. If there is a breach of the new Regulation, the ECC concerned could then forward the complaint to the appropriate Civil Aviation Authority or to a national ministry for legal action against the air carrier.

Over the next six months , the Commission will organise as many meetings as may be needed with the NEB to tighten up and strengthen enforcement procedures. The Commission will consider intensifying infringement proceedings against Member States where, after that six month period, enforcement regimes do not appear to be effective and dissuasive. During the coming six months, the Commission will examine, at airports, whether airlines provide passengers with the information, assistance and compensation. In particular, the Commission will check whether the information boards at check-in and the written notices in cases of flight disruptions are available and handed out.

In order to improve the information available on air passenger rights, the Commission will provide updated information material to the public before the summer of 2007.