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 widely used - is actually UK278/2019. UK261 is widely used now, a more accurate wording would be "the UK's version of EC261". BA and easyJet increasingly use the shorthand version of "APR", referring to the first few words of the 2019 regulation.

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.

Azurair and the 50% haircut
If you are rebooked, typically due to a cancelled flight, BA may put you on a service that departs earlier than your original booking. If it's more than 1 hour early it's still valid for compensation (so long as the flight was not cancelled for Extraordinary Circumstances). Though this wasn't in the conclusions, in the middle of that judgement there was a ruling that whenever a flight is brought forward by more than 1 hour or more, it should be treated as if a cancellation and the relevant EC261 protections would thus apply. However BA, and many other airlines, are in the habit of using a particular reading of EC261 to cut the compensation due by 50%, on the basis that you arrived less than (say) 2 hours late. This interpretation is wrong and the CJEU has ruled in Azurair that this provision does not apply if you depart more than an hour early, since the inconvenience can often be greater than leaving 2 hours late. CEDR sometimes agrees with this, so if BA does cut your compensation on this basis, consider going to CEDR. The events behind Azurair happened when the UK was still inside the EU, but the CJEU came after the UK had left. Under Lipton there would be arguments that therefore Azurair is applicable in UK law, but there isn't a substantive case in the UK system to confirm this. CEDR has both applied and not applied Azurair in different cases.

Lipton versus British Airways CityFlyer 2024
On 10 July 2024 the Supreme Court - the UK's most senior court - made a ruling in respect of staff illness in a case known as Lipton v. BA Cityflyer. Mr and Mrs Lipton were travelling in January 2018 from Milan Linate to London City Airport. The Supreme Court said that staff illness, even if it is away from the airline's base, is not Extraordinary Circumstances. So under Article 5 of the Regulation, this means that airlines may be liable for paying compensation for delays and cancellations if staff sickness was the cause. Moreover, the Supreme Court went further and said that staff absences generally are not extraordinary circumstances, thus widening the consumer protection, to cover any failure by staff to attend work - including interrupted rest periods (paragraph 170 of the judgement). The Supreme Court also emphasised the consumer focus of EC261 including the version currently in place after Britain's departure from the European Union. The judgement reaffirmed the view that technical problems are not extraordinary circumstances, and also suggested that even one-off events may still be in scope for compensation. The Courts here did not review the impact of "all reasonable measures", this is part of the Regulations' wording which modifies airlines' abilities to invoke Extraordinary Circumstances.

In practical terms, if you have in the last 6 years had a claim for EC261, relating to airline staff sickness, rejected in the UK,you should consider requesting BA to review that claim. If it was over 6 years ago (5 years in Scotland) then there may still be leeway to get compensation, but this will be less straightforward. If you had a claim rejected for other staff related reasons - reach out here for advice, but you may now be able to claim. The occasional problem that we sometimes get is when departures from out-stations are delayed for either crew rest regulations, or if that rest gets interrupted (e.g. fire alarm in their hotel). This case only currently applies directly to the UK based claims, but there was a separate CJEU case in 2022 in respect of TAP which was broadly similar in scope and outcome and will cover other European countries.

More generally, this was the Supreme Court's first ability to review EC261 since Brexit, and overall the Court did not depart from the principles used by the CJEU.

US Department of Transport (DOT) Final Rule regulations 28 October 2024: Customer Refunds and Other Consumer Protection Regulation
From 28 October 2024 there is a new DOT regulation for flights to or from the USA - and applies to connections, so if one part of the itinerary touches the USA then your booking is in scope. The main impact of this is to require airlines to offer refunds for any cancellation or delays that exceed 6 hours. - both for arrival and departure. Now BA offers this already for delays over 5 hours and for all cancellations. However there is a signficant twist here: the DOT requires automated refunds to happen to those who have not accepted a rebooking, and these refunds must take place within 7 calendar days on credit cards, 20 calendar days for other payment methods. Regular listeners will know that the EC261 and the UK's APR equivalent has a rebooking option provided the customer doesn't claim a refund, so there can be a conflict here on this one, however airlines can't avoid European regulations because of this, in my view it's for the airlines to work through the issues with the customer.