New Government

On 6th May 2010 there was a general election which resulted in a new Conservative/Liberal Democrat coalition government. All references to the Government on this page in relation to happenings before 6th May 2010 are references to the previous Labour Government first elected in 1997.

For more information see our Other UK Airport Issues page. As mentioned there the detail of the policy of the new Government towards aviation and airports remains to be seen but some idea of the direction of future policy can be gained from the note issued on 11th May 2010 of the agreements reached by the two parties in their coalition discussions and in the new Government's subsequent programme document The Coalition: our programme for government:. It certainly seems as if the new Government is committted to improving the passenger experience at major airports.

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Compensation for denied boarding or the cancellation or long delay of flights

To fill perceived shortcomings in the present European rules on compensation and assistance for air passengers in the event of denied boarding, cancellation or delay the European Commission in December 2001 put forward a proposal for a new regulation. This was finally approved early in 2004 with the signing of the new Regulation (EC) 261/2004 which came into force on 17th February 2005.

The new Regulation updated and replaced Regulation (EEC) 295/91 which dealt solely with compensation and assistance in the event of denied boarding. The new Regulation goes further and cancellations and delays are now covered.

The Regulation applies if a flight was within the EU, or if it was a departure from an EU airport to somewhere outside the EU, or if it was to return to the EU from outside the EU on an EU airline..  The Regulation states that when a flight is cancelled passengers should have the choice between a refund or "re-routing under comparable transport conditions".  The re-routing should be at the earliest opportunity or "at a later date at the passenger's convenience subject to availability". The passenger is also entitled to meals and refreshments, to two free telephone calls, emails, telexes or faxes and overnight hotel accommodation and transfers. And there is provision for compansation to be paid to the passenger by the airline

The regulation did not have an easy passage and there continues to be opposition from the industry.

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Enforcement

The EU Regulation requires Member States to ensure and supervise compliance by their air carriers and to impose sanctions for infringements that are effective, proportionate and dissuasive. In August 2004 the UK Government issued for consultation draft UK Regulations and at the end of March 2005 they issued the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005 (2005/975) which came into operation on 23 April 2005.

The EU continue to be very keen to publicise the new arrangements and to ensure that there is proper enforcement across Europe. In the UK , enforcement is a two-stage process. First, the Air Transport Users Council (AUC) filters complaints from passengers, bringing to the attention of the CAA any patterns of non-compliance or suspected deliberate misapplication of the Regulation. Second, on the basis of such information, the CAA decides on the appropriate enforcement action to take, whether persuasion or legal proceedings.

On 4th April 2007 the European Commission presented a report which evaluates the results of the Regulation so far. The Report can be seen on the EC website. In an accompanying press release the Commission says: ”Although there is no doubt that air passengers enjoy better protection today, we must make sure that airlines and Member States fully comply with their obligations."

On the EC website there is an enquiry form where passengers can obtain information on how to exercise their rights under this Regulation. There is also a complaint form.

In December 2008 there was an important ruling by the European Court of Justice (ECJ) in relation to a case between Alitalia and an Austrian family whose flight from Vienna to Brindisi via Rome was cancelled five minutes before the scheduled departure time. Accoring to the ruling airlines must pay compensation to passengers whose flights are cancelled because of technical problems. The only exception is if the technical problems are caused by "extraordinary" events outside the normal activities of the airline – such as terrorism or sabotage or a hidden manufacturing fault which suddenly comes to light. The ECJ said it is up to the airline to prove that the circumstances are "extraordinary" – and complying with the minimum rules on aircraft maintenance does not necessarily excuse a refusal to compensate passengers if mechanical failure cancels a flight. The ECJ said current EU rules give passengers the right to compensation "unless they are informed of the cancellation of the flight in due time".

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The Volcanic Ash Crisis 2010

The closure of airspace in April 2010 because of the problems with volcanic ash soon gave rise to stranded passengers and not surprisingly it was not long before there was controversy about these regulations

The Reguations operate if a flight was within the EU, or if it was a departure from an EU airport to somewhere outside the EU, or if it was to return to the EU from outside the EU on an EU airline. The regulations state that when a flight is cancelled passengers should have the choice between a refund or "re-routing under comparable transport conditions".  The re-routing should be at the earliest opportunity or "at a later date at the passenger's convenience subject to availability". The passenger is also entitled to meals and refreshments, to two free telephone calls, emails, telexes or faxes and overnight hotel accommodation and transfers. But during the volcanic ash crisis some airlines refused to provide such assistance and even where they did some passengers were told they would be offered hotels for only three days. Some passengers, it is said, were made to leave hotels after being told their airline would no longer pay. 

Unfortunately the regulations do not set out a passenger’s rights if the airline fails to provide this assistance or a passenger’s rights if he or she is forced to pay for hotels. AUC says if an airline fails to honour its obligations it should, on sight of receipts, reimburse reasonable expenditure of the kind mentioned in the last paragraph. The problem is that the AUC has not got the powers to compel the airlines to refund passengers – and the airlines know this. On 29th April 2010 the Air Transport Users Council (AUC) in the UK issued a press release saying that airlines should make it easier for passengers to get their money back.

The airlines argue that these rules were designed to cover short-term incidents and that they should not be held responsible for decisions to shut down the entire blocs of airspace. They feel the rules are unfair. According to a news item published early in May 2010 Mike Carrivick, chief executive of the Board of Airline representatives in the UK, which represents a large number of airlines, said that the eagerness of the EU and the UK government publicly to state that airlines have a responsibility under the regulation to accommodate and feed passengers booked on flights cancelled by the volcanic disruptions was a misuse of the regulation. The Regulation was designed for situations where individual flights had been cancelled not for the wholesale shutdown of the airways system imposed by governmental rulings and without any limitation of time., When used in this way the regulation was “draconian, disproportionate and often impractical”.  

Airlines already have a get-out clause which means they can avoid paying compensation in "exceptional circumstances".  Some airlines said they will cite this clause to avoid paying passengers affected by the ash cloud. This would certainly give rise to legal battles which always come down to how exceptional "exceptional" has to be. Of the cases which have come to court so far fewer than half have been decided in the passenger's favour.

It was the thinking in the industry that the EU might have to step in and take on the airlines on consumers' behalf. If AUC gets many complaints that passengers are being denied their rights it can ask the Civil Aviation Authority, which has enforcement powers, to intervene.

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Voluntary Commitments on Air Passenger Service

In its June 2000 communication on the "Protection of air passengers in the European Union" (COM 2000/365) the European Commission said it would promote the preparation and adoption of voluntary commitments by European airports to set quality standards for services and to consider design standards for terminals. Likewise there would voluntary commitments for adoption by airlines covering the improvement of service quality, adequate care for delayed passengers and simple procedures for lodging complaints and mechanisms for settling disputes out-of-court. These voluntary codes should be ambitious, engage as many operators as possible and include mechanisms for monitoring compliance.

Drawn up under the auspices of the European Civil Aviation Conference (ECAC) the codes were unveiled in draft in May 2001:

	Airport Voluntary Commitments on Air Passenger Service (MS Word 35Kb)
	Airline Passenger Service Commitment (28kb) **

Implementation finally got under way in 2002 and in the UK more than twenty airports signed up to the Airport Voluntary Commitments.

In the UK the monitoring of the Airport Commitments is the responsibility of the Department for Transport.  In 2003 they did this on the basis of the consumer reports which signatory airports are expected to produce at least once a year. In order to build in a measure of independent validation, the Airport Consultative Committee for each airport was given an opportunity to comment on the document before it was sent to the Department.

In November 2003 the Department published its first annual report on the implementation of these Commitments: 

Final Report on the first year of implementation of the Airline and Airport Voluntary Commitments (177b)

On 2nd February 2004 the Department said that in the UK they had found that the airport authorities which had signed up to the Commitments were generally meeting the undertakings, often going much further, and in the relatively few cases where there were shortcomings the airports concerned were working hard on remedies. They were particularly pleased to note the interest and engagement of the airports’ Consultative Committees, and regard the Commitments as a helpful benchmark against which airports and their Consultative Committees can continue to assess performance. Against this background they had taken the view that the Department should now cease active monitoring, although they would be grateful to continue to receive copies of the passenger service reports required under Commitment No. 11. They would not, however, use these to compile progress reports, nor to pass on information about individual operators.

It seems probable that many UK airports do not now produce the required regular reports on the Commitments.

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The Montreal Convention

The Montreal Convention on the Unification of Certain Rules for International Air Carriage was adopted at a Diplomatic Conference in Montreal in May 1999. It was ratified by the countries of the EU on 29 April 2004 and took effect across Europe on 28 June 2004. 

The Convention consolidates, updates and will eventually replace all previous international agreements on air carrier liability, including the 1929 Warsaw Convention. Each passenger will be able to claim up to £850 (or the sterling equivalent of 1,000 Special Drawing Rights (SDR) for lost, damaged or delayed luggage but they must provide evidence. If agreement cannot be reached the claimant has the right to sue the airline for the alleged damages.

The Convention also establishes a regime of unlimited airline liability for death or bodily injury in the event of an accident, putting it in line with current rules applicable to EU airlines. It will apply to flights between the UK and countries that have also ratified the Convention, such as the United States. It establishes strict liability up to 100,000 SDR (approximately £85,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The Convention also establishes a limit of about £3525 per claim for passengers who have incurred costs resulting from a delay, where the airline is held to be at fault.

The Montreal Convention also states:

In cases of death or injury to passengers, the Convention allows contracting parties to require air carriers to make prompt advance payments to assist entitled persons in meeting immediate economic needs;

Air carriers must be adequately insured, thereby ensuring the availability of financial resources for purposes of compensation;

Legal action for damage resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions; and

Simplification and modernisation of documentation related to the carriage of cargo.

The coming into force of the Montreal Convention brought into effect Regulation (EC) No 889/2002 which amends Council Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents, thereby creating a uniform system of liability within the Community. This Regulation applies many of the provisions of the Convention to Community airlines whether they are operating within the EU or internationally.

In May 2010 the European Court in a case involving the Montreal Coverntion confirmed that the liability of air carriers for loss of baggage is limited to €1134.71- see their press release for details

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Access to Air Travel for Disabled People

ECAC Code of Good Conduct

The ECAC Facilitation Group has adopted Guidelines on Awareness and Disability Equality for all Airport and Airline Personnel dealing with the Travelling Public. In October 2006 these became a new Annex N to ECAC Doc. 30 on Facilitation. The new Guidelines provide practical guidance on best practice in meeting the needs of PRMs travelling through airports and sets targets for service delivery. They will serve as guidance for airport staff training. The Guidelines are also referred to in the new EU Regulation referred to below.

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EU Regulation (EC) No 1107/2006

Following its consultation in 2002/03 on Airlines’ Contracts with Passengers the European Commission drew up legislative proposals on the transport of people with reduced mobility (PRMS) - COM (2005)47.  These were finally issued in mid February 2005. 

There were two essential goals: first, preventing unfair treatment, that is refusal of carriage on the basis of reduced mobility and, second, guaranteeing the provision, free of charge, of the assistance that passengers with reduced mobility need to have for air travel.

When the proposed Regulation came before the European Council there was intensive discussion of the proposals and this led eventually to a revised text of the proposed Regulation which was agreed on 6th October 2005. The most difficult issue was the question of who should be responsible for providing the assistance to disabled persons and persons with reduced mobility at airports. It was finally agreed that the managing bodies of airports should have the overall responsibility for providing such assistance.

The proposed Regulation was subsequently approved by the European Parliament following a debate in Plenary session in mid December 2005 and following its approval by the Transport Council on 9th June 2006 it was published in the Community's Official Journal on 26th July 2006

The new Regulation took effect on 26 July 2008, except Articles 3 and 4, which came into force on 26 July 2007 - Article 3 makes it illegal to refuse carriage on grounds of disability except on the grounds specified in Article 4.

On 2nd April 2007 the UK Department for Transport launched a consultation seeking the views of UK stakeholders on the enforcement of the EC Regulation 1107/2006. The Consultation Document and associated papers (including the EC Regulation, Impact Assessment and Proposed Enforcement Regulations) can be found on the Department's website. In this connection the Department held two symposiums on the proposals - one for Aviation stakeholders and another for Disability group stakeholders. That for Aviation stakeholders was held at the Department's offices in London on 15 May 2007. A copy of the Department's note of the meeting is attached.

Comments were required by 25th June 2007and a copy of the response sent on behalf of the Liaison Group is attached. The Department's response to the points made in consultation is also on their website.

On 3rd July 2007 the Department made the The Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007(SI 2007/1895). These incorporate some changes in response to the points made in consultation but not those made by the Liaison Group.

In December 2008 the CAA issued guidance for UK carriers (CAA Document FODCOM 49/08) on the circumstances in which they might refuse carriage for a PRM pursuant to Article 4(1) of this Regulation, e.g. on safety grounds.  This replaced earlier advice issued in August 2007

The new Regulation establishes a specific requirement for training airport and airline staff in disability awareness and in this connection the ECAC Guidelines adopted in October 2006 will be important.

Article 17 of the Regulation requires the European Commission to report to the European Parliament and the Council on the operation and effects of the Regulation by 1 January 2010.   By the end of March 2010 no such report had been published and enquiries were made of the EC. From them it is understood the report “will be based on the ongoing studies and consultations on air passenger rights”. The EC say they will have “a global picture of the outcome of these studies by July and a report [should] be ready for the end of 2011”. Since then the EU has written to say that the report would in fact be ready by the end of 2010. Nothing more has been heard.

On 18th May 2009 the UK Civil Aviation Authority (CAA) wrote to stakeholders inviting them to share their experience of the Regulation. The CAA's report was published on 1st March 2010. The key findings of the review are the need for:

• The CAA to work with stakeholders to improve the accessibility of booking processes and information provided by travel companies to make it easier for passengers to pre-book assistance
• Better information sharing between airlines and airports
• Better awareness amongst airport staff of the range of impairments covered by the legislation as well as the extent of the airport’s responsibility and the provision of appropriate assistance
• Greater policy consistency across airlines on access to flights, assistance available to PRMs and what equipment may be carried onboard
• Increasing the number of routes available for passengers travelling with assistance dogs.

In May 2010 the CAA held an Accessible Air Travel Workshop for stakeholders and a report of this was published in September 2010.  A copy of the report can be seen on the UKACCS website. It will be noted that a number of those attending the workshops volunteered to participate in specific projects and that the CAA would be "working with them to develop identified projects". The CAA says it "will be consulting stakeholders on the outcome of these projects, and the resulting draft guidance, in Spring 2011"

It is acknowledged that one of the key problems for airport operators in providing services for PRMs is that of pre-notification, i.e. being aware in advance of people requiring assistance.  On 25th February 2011 the Consultative Committee at London Luton Airport (LLACC) wrote to the former Air Transport Users Committee (AUC) suggesting that the problem might be relieved if on-line bookings with the operating airlines or tour companies had a mandatory box to tick saying that the booking either did or did not require PRM assistance.  The letter noted that mandatory tick boxes of this kind often exist, for example to confirm one has read the terms and conditions of booking, and unless they are completed the e-booking freezes.  The LLACC thought this was a relatively straightforward step which might pay enormous dividends. The LLACC's letter subsequently attracted comments from ABTA and there have been suggestions that shortcomings in the outmoded software still used by some airlines and tour operators amight make it difficult immediately to implement the LLACC suggestion.

The Directive on Compensation and Assistance to Air Passengers in the event of Denied Boarding and of Cancellation or Long Delay of Flights includes provision which protects PRMs, those who accompany them and unaccompanied children from being denied boarding.

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UK Code of Practice

The first edition of this Code was issued in March 2003. It took a long time to appear. There was between March and June 2001 but airport consultative committees were not among those asked for their views.

The code is aimed at all those involved in air travel including travel agents, tour operators, UK airlines, UK airports (including the architects and designers who are involved in their design), ground handling companies and retailers. The Disabled Persons Transport Advisory Committee (DPTAC – the Government’s statutory advisers on the transport needs of disabled people) has published a companion guide for disabled people to explain what they can expect from the code.

The Code is complementary to the European Voluntary Commitments on Air Passenger Rights (see our Euro round-up page) which include a special protocol on meeting the needs of people with reduced mobility. In the UK consultative committees have a special role in monitoring those Commitments.

In the first half of 2007 the DfT said it was setting up a Working Group to review the Code in the light of recent changes in European law. At the ACCs Annual Liaison Meeting at Stansted on 13/14 June 2007 it was agreed to tell the Department that the Liaison Group would like the opportunity to be represented on the Working Group and anyway that it would welcome involvement at an early stage in the Review process so that the Working Group can consider the Liaison Group's views [See letter to DfT]. The Department did not respond.

On 1st April 2008 the DfT launched a consultation on a revised version of the Code which has been updated to reflect the new European Regulation. The Department asked for the views of air travel industry and disability stakeholders on the revised Code. The consultation closed on 23 June 2008. A copy of the full consultation document and the draft Code are attached (558kb) .

The Revised Code was finalised and published in July 2008 along with the Government's response to the consultation.

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UK Disability Discrimination Act 1995 - Part 3

The Code of Practice surfaced in the context of Government's proposals to amend the Disability Discrimination Act 1995 (DDA95). Part 3 of this Act gave disabled people important rights of access to everyday services which others take for granted. Transport infrastructure (bus stations, railway stations, airports and ports) was among the facilities covered by those provisions but there was a specific exemption for any service “so far as it consists of the use of a means of transport”. The Government's proposals for lifting this exemption for public transport and certain other transport related services were set out in detail in a consultation paper published at the end of 2002 and in November 2004 they published draft regulations for comment [Summary of Responses]. The lifting of the exemption required primary legislation and this was obtained in the Disability Discrimination Act 2005 and with effect from 4th December 2006 it became illegal for transport operators to discriminate against disabled people using buses, trains, taxis, car hire and vehicle recovery services. Operators are also required to make reasonable adjustments to their services so that disabled people can use them.

In relation to aviation the agreed arrangements are that the voluntary Code of Practice should be the standard to which the industry should work but the Disability Discrimination Act 2005 includes reserve powers to allow the Government to place the Code on a statutory footing should the voluntary route prove ineffective.

The Transport Research Laboratory were commissioned to benchmark the industry against the code of practice and to carry out a monitoring exercise to find out how far the industry is working in line with the code. The Report of the TRL's study was published in August 2006. The headlines are:

• the industry needs further encouragement to follow those parts of the Code that are already covered by Part 3 of the Disability Discrimination Act;
• there should be increased training for travel and booking agency and airline staff;
• procedures to increase pre-booking assistance, and provision of information in alternative formats, need to be promoted further;
• consistent policies need to be developed on the carriage of disabled people and on seating allocation; airlines and their handling agent staff should have the knowledge to assess suitable seating allocation for particular needs.

This question arose again when the Code of Practice was reviewed in 2008. According to the Department's consultation paper a number of disability stakeholders had called for the lifting of the exemption from Part 3 of the UK Disability Discrimination Act (DDA) for air transport services. Two main arguments put forward to support this course of action :

The European Regulation and the DDA use different definitions of disabled person. The Regulation applies to “any person whose mobility is reduced when using transport" whereas the DDA definition of disabled does not relate solely to mobility. There is concern that the Regulation is unlikely to protect as wide a group of disabled people as the DDA. As an example, someone with HIV or cancer who has no symptoms is likely to be covered by the DDA but unlikely to be covered by the EC Regulation.

Whereas the DDA requires service providers to make unspecified "reasonable adjustments" to enable disabled people to access services, the EC Regulation lays down specific assistance which airports and airlines are required to provide. The concern here is that the prescriptive approach of the Regulation could omit an action which the DDA might consider a reasonable adjustment.

The Government said it acknowledged the differences between the two pieces of legislation but did not believe that the overall effect of these differences represented a loop-hole significant enough to justify further regulation. They had no evidence of actual discrimination occurring which would not already be addressed by the new Regulation.

The introduction of further legislation in this field, they said, would be potentially confusing for both airlines and passengers. Furthermore, the territorial scope of the DDA meant that it could only apply to services provided in the UK, thereby creating different regulatory requirements on airlines depending on the destination of the flight or where the act of perceived discrimination took place.

The European Regulation created a set of new rights for disabled people. These, said the Government, are enforceable through the criminal courts by the Civil Aviation Authority (CAA), as well as by individuals through the civil courts. They believed that the revised Code of Practice "will help the air travel industry to comply with its duties under the Regulation and to provide a better service to disabled passengers".

For these reasons, the Government decided there was not sufficient justification to lift the DDA exemption for air transport services at the present time. However, they would work closely with the complaints handling bodies and the CAA to monitor compliance with the Regulation, and would keep this decision under review.

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Abolition of the Disabled Persons Transport Advisory Committee (DPTAC)

If it becomes law the Public Bodies Bill introduced in the House of Lords on 28th October 2010 will, among other things, abolish the Disabled Persons Transport Advisory Committee (DPTAC). DPTAC is an independent body established by the Transport Act 1985 to advise government on the transport needs of disabled people and in particular:

• to ensure disabled people have the same access to transport as everyone else;
• on transport legislation, regulations or guidance; and
• in response to important consultation documents.

In giving its advice it works on the principle of an accessible transport system which recognises the need for every stage in the journey to be accessible to disabled people. It sets out "to include as many people as possible. It does not attempt to meet every single need. Rather, by considering people's diversity, accessible transport systems try to break down unnecessary barriers and exclusion. In doing so it will often achieve superior solutions that benefit everyone".

The winding up DPTAC is expected to take about a year. In the interim period, it will continue to operate.  The reason for getting rid of DPTAC is said to be that the Government wants a “more flexible approach”. By May 2011 discussions had started on DPTAC’s successor and what statutory duties it will need to undertake. It remains to be seen what will emerge but it is important that the successor body, whatever its format, has the remit, independence and credibility to ensure that the needs of disabled people are kept at the top of the agenda.

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Which? Report

In April 2011 Which? published an article in theri Which?Travel magazine outlining the results of an investigation into the assistance received by vulnerable people from airports.  By kind permission a copy of the article has been posted to the UKAACS website. The investigation included sending out two blind people with guide dogs, and two people in wheelchairs, on domestic flights around the UK to assess the level of assistance at seven different airports including, Glasgow, Birmingham, Gatwick,  Manchester, Leeds Bradford and Heathrow. "All four passengers" said the article "had requested airport assistance at the time of booking and informed their respective airlines of their specific needs.  Each encountered some sort of problem with the assistance they received, with three of them experiencing significant problems."  The problems included:

• being left waiting often for long periods and sometimes in the cold;
• removal of a blind person's guide dog at security;
• lack of attention to toilet needs of guide dogs;
• lack of communication facilities;
• some facilities including "help" buttons physically out of reach;
• inability to book the need for assistance on the booking website - passenger had to telephone;
• inadequate signage;
• longer than expected distance to travel at the airport
• lack of clarity as to where passenger should go;
• misdirection of passengers;
• passing of passengers from one assistant to the next.

In the other part of the investigation Which? asked 1499 members (including some who were disabled) about their experience of airport assistance and, although the majority of respondents (72%) were happy with the assistance received, 9% told Which? they were dissatisfied with the service.

Which? comments that it's clear from members’ letters that "many people receive excellent assistance at UK airports. But there are still many passengers who don’t. It seems that when assistance fails, it fails significantly, often causing disabled passengers distress or humiliation. This is unacceptable".  The article goes on that the European regulations "have gone some way to address the problems faced by disabled passengers when flying. But much more needs to be done."

Which? wrote to all the airports they assessed and asked the Airport "to answer why they failed to provide adequate levels of assistance. We feel there are some simple steps airports can take to make big improvements and we have sent them our suggestions. With better staff training and better processes, improvements could be made to airport assistance provision, making it more consistent and fit-for-purpose." Which? also wrote to the Civil Aviation Authority asking "how they propose to ensure that all airports meet their obligations under the legislation. And we’ve asked how they plan to ensure that assistance provision is more consistent and fit-for-purpose in future."

For more on Which?Travel visit their website at http://www.which.co.uk/publications/magazines/which-travel

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Review of Passenger Rights

In December 2009 the European Commission launched a consultation saying it was time to take stock of what has been achieved and what can still be improved on air passenger rights including the provision made for PRMs. The closing date for comments was 1st March 2010.

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Information for passengers on the identity of carriers and the sharing of safety information by Member States - Regulation (EC) No 2111/2005

This Regulation, made in December 2005, gives air passengers the right to be informed of the identity of the air carrier which will operate the flight(s), for which they have made a reservation and, in parallel, provides for the establishment of a Community list of air carriers subject to operating bans within the Community

The Regulation flows from a fatal air crash at Sharm-El-Sheikh on 3 January 2004 involving a passenger jet carrying 148 people to Paris. It emerged after the accident that the operating carrier was, at the time of the accident, banned from flying to Switzerland because of concerns about safety, but authorised in certain Member States. In the wake of this accident the Commission resolved to make proposals for reinforcing the current system of safety inspections based on the SAFA Directive 2004/36/EC – see above – and also to respond to public concerns that passengers should be informed of the precise identity of the company which actually transports them. Because of code sharing or wet leasing this is not always clear to passengers. It was felt that a higher degree of transparency would lead companies to strengthen their commitment to safety.

The Regulation establishes a process whereby the Commission, in consultation with Member States and using common safety criteria, will decide that air carriers should be refused permission to operate services within the Community. The Member States are responsible for enforcing the operating bans. There are provisions for a Member State to impose its own bans under exceptional circumstances, taking into account the common safety criteria, and these will be considered by the Commission for Community-wide action. In addition, a Member State may maintain a ban in its own territory when the Commission decides against Community wide action if there are safety problems specifically affecting the Member State .

The Directive provides for the Commission to publish a list of all airlines banned in this way. The list is published on the EU and both Member States and the Commission must facilitate public access to the list - see for example the DfT website. The list is updated from time to time. The October 2006 includes all air carriers certified by the authorities in the Congo, Equatorial Guinea, Kyrgyz, Liberia, Sierra Leone and Swaziland as well as Kenya's DAS Air Cargo and Uganda's Dairo Air Services. Altogether 140 airlines are listed. The popular airlines used for vacations by Europeans are noticeably absent from the list and the EU could not specify how many of the banned airlines had flown in European skies or used European airports. But some, such as Ariana Afghan Airlines, operate routes from Europe.

The Regulation also provides that an air carrier making a booking (“the contracting air carrier”) will need to ensure that the passenger is informed of the identity of the carrier(s) actually operating the flight(s). Where the precise identity of the carrier(s) is not yet known the contracting air carrier will need to tell the passenger the name or names of the air carrier(s) likely to provide the service(s) and subsequently to inform the passenger as soon as the precise identity of the carrier(s) is established. Where the operating carrier is changed after reservation the contracting air carrier will be expected to make all reasonable efforts to ensure that the passenger is informed of the change in good time and, in any case, by not later than check-in.

Article 13 of the EC Regulation requires all Member States, by 16 January 2007, to ensure compliance with these rules and to lay down effective, proportionate and dissuasive penalties for their infringement. On 2nd August 2006 the DfT began a consultation exercise on the required enforcement mechanisms. The closing date for comments was 20 October 2006. On 12th December 2006 the Secretary of State made the Civil Aviation (Provision of Information to Passengers) Regulations 2006 (SI 2006/3303). On the Department's website there is a Note of the Responses to the Consultation and a Regulatory Impact Assessment. The new Regulations took effect on 16 January 2007

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