Flight Compensation – EU 261/2004 – What happens now post Brexit?

Brexit and EU261/2004 – An update on your Passenger Rights

Brexit has finally, after a 12 month extension, been agreed and the United Kingdom left the EU on 31^st December 2020.  What does this mean for the European Passenger Rights regulations? The short answer is nothing.

Current Regulations

The current situation is that passengers flying out of an EU member state on an EU registered carrier or out of an EU State on a non European registered carrier have certain protections for Cancellation delays in excess of three hours or denial of boarding under Regulation EU261/2004 (EU261/2004).

New Regulation

Under Section three of the European Union Withdrawal Act 2018 the EU261/2004 is directly incorporated into UK domestic law being England ,Wales, Scotland and Northern Ireland. The Act under UK law that governs what was previously covered by EU261/2004 is known as The Air Passengers Rights and Air Travel Organisers Licensing (Amendment) (EU Exit) Regulations 2019 known as APR Regulations

 Case Law

EU case law which is critical to the development of EU261/2004 has been incorporated into UK law.

This will mean that previous judgements of the Central European Court for Justice will form part of UK law but our Supreme Court is no longer bound to follow the rulings.  However, they are unlikely to move from established law without due cause.  From the 1^st January 2021 all UK domestic courts will not be bound by the CJEU decisions post Brexit but it will act as guidance for similar situations.

Where can cases be brought?

Currently Actions can be brought in several ways

1. EU jurisdictions Non UK – Where it is required to issue through the UK courts but in other EU jurisdictions claimants have been able to use the European Small Claims Procedure (ESCP). 
2. UK courts under Civil Procedure Rules as a Small Claim
3. A third option was to raise a claim through the local court providing the claim can be correctly served and the court has jurisdiction.

From 31 December 2020

1. Claims can no longer be brought under the European Small Claims Procedure.
2. UK Small Claims procedure but these will now be brought under APR Regulation
3. Claim through local EU state courts . This remains open and remain under EU261/2004 regulations although this has always been a difficult route due to legal conventions, local currency payments , court fees and language barriers.

 Which set of regulations will govern my flight

 You will see from the above table that on some occasions a flight may be covered by two sets of Regulations.  Currently they say the same thing but they may differ over time as case law develops and perhaps exchange rates change the relative value of the compensation. 

What is the level of compensation under APR ?

The APR Regulations have converted compensation levels to GBP as follows:

Flights

What does this mean for passengers wishing to claim for UK registered carriers?

There is effectively no difference since EU261/2004 and APR state the same benefits . The benefits will now be in sterling will not subject to the Euro Sterling exchange rates.

What does it mean for UK passengers with a dispute against an EU registered carrier?

Claims will have to be brought in the UK courts as the option to use the European Small claims procedures has lapsed.  There is likely to be a challenge to Airlines use of restricted jurisdiction clauses as this will be seen as more of a bar to justice.

What about the future?

It will be apparent from the above table that passengers will have the choice of legislation which will complicate claims and may lead to jurisdiction shopping. This may well occur if the courts for example in the EU favour the consumer or exchange rates lead to differing payments.

Passengers no longer have access to European Small Claims procedure and those Airlines with restrictive jurisdiction contractual conditions are effectively outlawing customer dispute resolution through the courts.  The pressure to walk away from responsibilities will grow on certain Airlines and consumers need to be careful when choosing a carrier.

Flight Delay Pay is a team of travel and legal professionals with vast knowledge and many years of experience working with European Passenger Rights. We work with airlines and passengers all over the world and take on claims up to 6 years back. If you think your claim fits within the eu261 regulations then claim with us now! Let us take the strain and handle your claim. No win, no fee!

Click Here To Claim Flight Delay Compensation

For details EU261/2004 Regulation – Click here

The Air Passengers Rights and Air Travel Organisers Licensing (Amendment) (EU Exit) Regulations 2019 known as APR Regulations this amends the Regulation EU261/2004 – Click here

With thanks to DLA Piper