Post 8
Recent Developments since 2021
Britain's withdrawal from the European Union (Brexit)
The United Kingdom left the European Union in January 2020, and subsequently left the Single Market and transition arrangements at the end of December 2020. However EC261 lives on since the Regulation was integrated into UK law - and more than once - well before Brexit. The are some minor issues that arise.
1) The UK no longer falls under direct oversight of the Court of Justice of the European Union (CJEU - often also known as ECJ). This means that if the CJEU makes any future rulings relating to EC261, they will not necessarily carry over into UK law automatically. I use the word necessarily because the relevant appeal courts in the UK can certainly consider CJEU judgements, as they already do for judgements from many other international courts, and tribunals. So if the CJEU reaches a decision based on sound logic then it may well at some point find itself valid for the UK too. It just may take a little longer. On the other hand the UK courts could also make new rulings that assist consumers, without the CJEU being able to change them, and that would typically be a faster process than the CJEU.
2) The Trade and Co-operation Agreement agreed between the EU and the UK on Christmas Eve 2020 only mentions EC261 indirectly. The relevant aviation agreements were reasonably straightforward on the core issues such as Third, Forth and Fifth Freedoms for airlines (the latter for cargo only) but the treaty writers seemed to accept that there was a lot of detail left hanging. Separately a Patnership Council now exists as a new body which represents EU and UK shared ambitions and interests, with a lot of technical groups and committees set up underneath this top layer. The aviation clauses of the T&CA suggest that those bodies that handle aviation will work together to deal with the loose ends and futher develop the relationship going forward. None of this sounds like the UK going off in a completely different direction here so I see no immediate change of direction for EC261 or indeed any of the other ways that BA operates in the European space.
3) The biggest change relates to the fact that any
compensation payments are now denominated in Pounds Sterling, rather than Euros. This would apply to a flight leaving the UK OR for a flight to the UK from outside the European space. Flights from the European space to the UK continue to be denominated in Euros, though it remains to be seen whether pragmatically BA will only pay the Pounds Sterling amount. Depending on exchange rates, it may not make much difference, and a simple Statutory Instrument can change the UK figures anyway. So 250€ becomes £220 (short delays, typically within Europe), 400€ is £350 (typically longer flights within Europe) and finally 600€ - usually for longhaul flights -- is now £520. These sums can continue to be cut in half if BA rebooks you on earlier flights such that you arrive before your original scheduled time.
Link to the enabling legislation, there are other older Statutory Instruments that embeds EC261 into UK law.
The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019
And here is a statement from the Department for Transport dated 31 December 2020, confirming the continued consumer protections, even if they couldn't quite mention the Europe word in terms of the underlying source of these protections.
https://www.gov.uk/guidance/passenge...ling-to-the-eu
A word on the the wording....
UK261 is the shorthand way of relating to the post Brexit landscape of EC261 and it's now included to help searches. However there is no such thing as UK261 as a legal document, whereas EC261/2004 is the legal name used by the European Union, taking its name from the number sequence of legislation in the then European Community for the year 2004. The law that integrated EC261 into the UK's legal structure is the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019, so the correct equivalent - which is not used - is actually UK278/2019.
Covid-19 issues
The pandemic which so powerfully shook the entire aviation industry in 2020 will continue to dominate 2021 as well. The core impact on EC261, as deliberated by CEDR at the end of 2020 is
- Covid-19 is an "extraordinary circumstance", which may mean that you won't necessarily be able to get compensation if your flight is cancelled or delayed.
- However - and it's a big however - CEDR has said the second part of the clause - rarely mentioned by airlines - still applies. That clause reads: "which could not have been avoided even if all reasonable measures had been taken". In other words, just because there is a pandemic on, the airlines still need to take reasonable measures to meet their obligations to passengers. It's quite a high bar for airlines.
- Some major EC261 protections apply irrespective of extraordinary circumstances, notably Right to Care. So if BA changes a connecting flight that now means you have to stay over in LHR for the night, BA may well be on the hook for that.
As ever, the details matter.