Summary of consultation responses on the enforcement of EU air carrier identity

Summary of Responses to the Consultation on the Enforcement in the United Kingdom of the Information to Passengers Provisions of Regulation (Ec) No. 2111/2005

Background

On 28 July 2006 The Department for Transport launched a consultation on proposals for enforcement regulations aimed at ensuring industry compliance with the provisions of Chapter III of Regulation (EC) No. 2111/2005 ("the EC Regulation") concerning the provision of information to passengers regarding the air carrier with which they will be flying, and related matters. An earlier consultation undertaken during 2005 on the draft EC Regulation had indicated that the airline and travel industries had significant concerns about the practical difficulties and costs of implementing the relevant provisions.

The consultation exercise closed on 20 October 2006. By 27 October ten responses had been received, comprising three each from organisations representing travel agents and tour operators, and those representing airlines, and four from individual airlines. The Government has also taken into account points raised during a meeting with stakeholders from these sectors. We are grateful for the helpful and constructive comments received from the industry.

The majority of respondents considered that the Government's general approach to enforcement of Chapter III of the EC Regulation was acceptable, and two explicitly supported the proposal to permit industry to develop its own solutions to ensure compliance (with others expressing support at the stakeholders meeting), with no support for the alternative of imposing a detailed prescriptive regime. A number of detailed issues concerning implementation were however raised by individual respondents. A summary of the key points raised during the consultation follows, together with the Government's responses.

Key issues

Enforcement body

Three organisations indicated that they were content for the CAA to perform the enforcement role on DfT's behalf, but one suggested that the Air Transport Users Council (AUC) would be a more appropriate compliance body than the CAA, given its experience of handling denied boarding compensation complaints, and that in practice it was likely to be the first point of contact for passengers with a grievance.

Government response

The Government notes that the EC Regulation, unlike that covering denied boarding compensation, does not require Member States to nominate separate bodies for the handling of complaints and enforcement; it also considers that there is little scope in identity of air carrier cases for the AUC to undertake its usual role in mediating between passengers and airlines. It has therefore concluded that there would be no clearly defined role for the AUC and remains of he view that the CAA is best placed to undertake the enforcement role. The AUC will pass on to the CAA any complaints which it receives.

Approach to enforcement

Several respondents expressed dissatisfaction with the EC Regulation and were concerned that strict interpretation of it could impose a substantial regulatory burden on airlines, tour operators and travel agents. For example, a charter airline noted that the flights in that sector might be booked up to eighteen months in advance, and that the identity of the carrier might change several times in that period; to notify all passengers of each change could impose a significant administrative burden and consequent costs. Two organisations accordingly suggested that a pragmatic approach to enforcement was essential; this would reduce the potential burden while still permitting serial offenders to be brought to task. There was general support for this view at the stakeholders meeting.

Government response

The Government understands the concerns of the industry, but the EC Regulation has been adopted in its current form, is directly applicable, and does not provide scope for Member States to grant exemptions from its provisions. The intention, however, is that the CAA will enforce fairly the provisions of Chapter III, in accordance with the stated aim of the EC Regulation to seek a fair balance between the commercial viability of air carriers and passenger access to information. Its emphasis in responding will be to make reasonable efforts to secure compliance by entering into dialogue with the air carriage contractor concerned. Legal proceedings will be considered if an air carriage contractor has failed to comply after suitable requests from the CAA.

Notification of late changes to operating carrier

One respondent representing airlines expressed concern that the EC Regulation was defective in not making satisfactory allowance for the provision of information to connecting passengers or those who have checked in many hours in advance of their flight, for example by internet check-in. Late changes to the operating carrier for technical or other reasons might mean that such passengers could not be notified of any change until the last minute before boarding. There was concern that this might result in prosecution for non-compliance, which might in turn inhibit the practice of making late changes to the operating carrier.

Government response

Again, the Government recognises the concerns of the industry. As stated above, the CAA will enforce the requirements of Chapter III fairly, with a view to the balance between the commercial viability of air carriers and passenger access to information. There is no intention that the enforcement of Chapter III should inhibit last-minute changes of the operating carrier, and thus potentially result in the cancellation of a flight. This would be a disproportionate response to the requirements of Chapter III.

Defences

Three stakeholders in the airline sector were concerned that in some cases they would have little effective control over, or even knowledge of, carriers operating connecting flights, especially at remote locations outside Europe. There may be cases where a blacklisted carrier is substituted at short notice for the carrier originally booked for a flight between two non-EU destinations. The air carriage contractor might therefore be unable to meet the requirements of Article 11(3) of the EC Regulation relating to the provision of information where the identity of the operating carrier has been changed after reservation. In these circumstances there should be a defence for air carrier which had sold the ticket so that it is not held legally responsible for actions outside its control.

Government response

The Government does not consider that the defence available to ticket sellers under Article 11(5) of the EC Regulation could be extended to airlines if they have not been informed of the identity of a carrier operating one leg of a journey, as this would go beyond the EC Regulation in terms of defences against prosecution. The Statutory Instrument does, however, create a due diligence defence which might be employed in these circumstances.

Level of fines

Two respondents suggested that the proposed level of fine on conviction (Level 5 on the Standard Scale) was disproportionately high. Although non-compliance would result in a failure to inform the passenger of a change to their air carrier, the carrier would not be on the list of airlines banned from operating in the EU on safety grounds and will therefore be deemed safe to fly on. There would, therefore, arguably be little or no loss or disadvantage to passengers.

Government response

The Government considers that this argument has merit, but is mindful of the requirement to establish penalties which are effective, proportionate and dissuasive. On balance, it has accepted stakeholders' concerns, and has reduced the maximum fine from Level 5 to Level 3 on the standard scale for most offences created by the implementing Regulations in respect of the provision of information to passengers. The fine for the offence of failing to offer re-routing or reimbursement has, however, been maintained at Level 5 in order to ensure consistency with penalties for offences of a similar nature created by The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005.

Costs of compliance

The majority view expressed across all sectors was that existing systems provided for the needs of the EC Regulation and it would in consequence impose minimal additional costs. Holders of Air Travel Organisers Licences, for instance, are already required to inform passengers of any prospective change of carrier as a condition of their licence. There would however be incremental training costs, and one respondent representing travel management companies suggested that indicative costs for a company starting fresh to the task could comprise £2000 in start-up costs plus £1 per ticket on implementation. This could theoretically amount to some £5 million for its members, although it was recognised that most travel management companies would not be in this position.

Government response

The Government notes that, with one exception, those who expressed a view on the subject did not regard the costs of compliance with the requirements of the EC Regulation as significant. This reinforces our view that the industry is best placed to devise its own solutions to ensure compliance and that the additional financial burden which would result from putting in place detailed prescriptive measures would not be justified.