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Consumer protection and liability
Are airfares regulated in your jurisdiction?
In general, air fares are not regulated. The United Kingdom is bound by the Operation of Air Services Regulation (1008/2008), whose Article 22 provides that “Community air carriers [ie, carriers licensed by an EU member state] and, on the basis of reciprocity, air carriers of third countries shall freely set air fares and air rates for intra-Community air services”. The regulation also contains obligations in relation to fares transparency, requiring airlines:
- to disclose at the start of, and throughout, the booking process the total price that the passenger will pay; and
- to provide a breakdown of additional taxes and charges that have been included in the price.
The regulation does not apply to fares for air services as between the United Kingdom and third countries with whom the United Kingdom has bilateral air services agreements. However, the United Kingdom does not typically require the filing of fares by foreign carriers.
What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
UK carriers and any carrier (of whatever nationality) operating flights from UK airports are subject to the Flight Compensation Regulation (261/2004) establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
In the event of flight cancellation or long delay, the rules outlined below apply.
The passenger must be offered a choice of reimbursement, re-routing at the earliest opportunity or re-routing at the passenger's convenience, together with care and assistance (hotel accommodation, refreshments, telephone calls). The airline may also be obliged to pay compensation of between €250 and €600 to each passenger depending on the length of the cancelled flight, the amount of advance notice that was given of the cancellation and on whether the re-routing option offered causes limited disruption to the passenger's original schedule. Compensation is not payable if the airline can prove that the cancellation was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. The scope of the ‘extraordinary circumstances’ defence under the Flight Compensation Regulation has been very substantially eroded since the regulation first came into effect through a series of judgments from the European Court of Justice. In particular, where a technical problem has caused a cancellation or delay, it is very difficult for an airline to use this defence – unless it can prove that the problem stems from a hidden manufacturing defect.
For delays in excess of two hours prior to departure, the passenger must be offered care and assistance (meals, hotel accommodation, telephone calls). The right to care and assistance is triggered on a sliding scale depending on the length of the delay (two to four hours or more) and the length of the fight (up to 1,500 kilometres (km), 1,500km-3,500km and all intra-EU flights, and flights of 3,500km or more). Where the pre-departure delay is at least five hours, the passenger must be offered the option of a refund.
Compensation is also payable (at the same rate as for cancellation – €250-€600) where the passenger is delayed for three hours or more at his or her final destination. The airline can avoid compensation if it can prove that the delay was caused by extraordinary circumstances (as for cancellations).
(b) Oversold flights?
See below – where a passenger is unable to travel because a flight is oversold, this falls within the scope of denied boarding.
(c) Denied boarding?
The Flight Compensation Regulation applies to all passengers departing from UK airports (whatever the nationality of the carrier). Denied boarding pursuant to the Flight Compensation Regulation covers overbooking, but also any other circumstances in which a passenger is refused carriage despite presenting him or herself for check-in according to the airline's requirements and holding a confirmed reservation. Passengers who are involuntarily denied boarding are entitled to compensation of €250 to €600 depending on the length of their flight and must also be given the option of reimbursement or re-routing at the earliest opportunity, or re-routing at the passenger's convenience, together with care and assistance (hotel accommodation, refreshments, telephone calls).
A passenger will not be treated as having been denied boarding for the purpose of the Flight Compensation Regulation, and will have no remedies under the regulation, if there were reasonable grounds to deny him or her boarding, such as health, safety or security, or inadequate travel documentation.
Passengers who agree to voluntary denied boarding are not entitled to compensation of €250-€600 pursuant to the regulation, but are entitled to the option of reimbursement, re-routing at the earliest opportunity or re-routing at the passenger's convenience, together with care and assistance (hotel accommodation, refreshments, telephone calls).
(d) Access for disabled passengers?
This is governed by Regulation 1107/2006. The regulatory regime applies to any passenger "whose mobility is reduced by reason of physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age (known as ‘persons of reduced mobility’ or ‘PRMs’).
Regulation 1107/2006 applies to passengers departing from, transiting through and arriving into EU airports. The regulation prohibits airlines from discriminating in relation to acceptance of bookings from PRMs and allowing PRMs access on board aircraft (subject to safety considerations). Airlines and airports are also obliged to provide certain assistance to PRMs free of charge, including in relation to embarkation, carriage of mobility equipment, carriage of guide dogs and having regard to special seating needs.
(e) Lost, damaged or destroyed luggage?
The United Kingdom is a signatory to the Montreal Convention 1999 and applies the provisions of that convention to claims for lost, damaged or destroyed baggage. This applies to domestic as well as international flights.
(f) Retention and protection of passenger data?
This is governed in the United Kingdom by the Data Protection Act 1998 (though the regime is set to be amended significantly when the General Data Protection Regulation ((EU) 2016/679) comes into effect in May 2018). Among other matters, the new regime will introduce dramatically increased fines for data protection breaches – potentially up to 4% of global turnover.
In order to protect passengers' data, airlines must ensure that passenger data is:
- used fairly and lawfully;
- used for limited, specifically stated purposes;
- used in a way that is adequate, relevant and not excessive;
- kept for no longer than is absolutely necessary;
- handled according to people’s data protection rights;
- kept safe and secure; and
- not transferred outside the European Economic Area without adequate protection.
An airline must have sufficient legal grounds for processing passengers' personal data. ‘Processing’ encompasses any activity in relation to personal data, including merely storing it. For standard personal data, the most useful of these grounds from an airline's point of view are that:
- the processing is necessary for the purposes of the legitimate interests of the data controller or a third party;
- the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
- processing is necessary for compliance with a legal obligation; or
- the individual has given his or her consent to the processing.
In practice, airlines should ensure that they have comprehensive and transparent privacy policies that are brought to passengers' attention and to which passengers are required to agree as part of the booking process, with specific tick boxes for certain kinds of data and processing if the airlines wish to obtain passengers' consent. That practice is designed to ensure that passengers have been informed about how and why their personal data is being used and stored, notified of their data protection rights and, where necessary, have given their consent to the use and storage of their personal data.
What rules and liabilities apply to the air carriage of cargo?
The United Kingdom is a signatory to the Montreal Convention 1999 and applies the provisions of that convention to claims for lost, damaged or destroyed cargo.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
Article 23 of the Operation of Air Services Regulation requires transparency of pricing information relating to air fares. The final price to be paid must be displayed at the outset of the booking process, and the passenger must be given a breakdown of any taxes and charges that are included in the fare. Services that are optionally available, such as insurance, must be displayed on an opt-in, rather than an opt-out, basis. The Advertising Standards Agency also sets certain requirements relating to the advertisement of fares in the transport sector, including relating to the advertising of special offers and the extent to which an advertised discounted fare must in practice be available at the time of advertising.
Do any special rules apply to consumer complaints handling in the aviation industry?
There is an increasing participation in alternative dispute resolution (ADR) schemes in the United Kingdom for the resolution of small consumer claims, including – in particular – flight delay and cancellation claims. ADR is not compulsory for such claims, but is promoted as a low cost and efficient alternative to court proceedings. The UK Civil Aviation Authority is an advocate of increased ADR and oversees the ADR providers in this area. Otherwise, there are specific court rules for small claims that involve a simplified procedure and exclude the usual rules relating to costs recovery which apply to other court proceedings.
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