This paper raises the question of what is to
happen to Regulation 261/2004 in the light of Brexit. In 2019, the Regulation
will be converted into UK domestic law under the European Union (Withdrawal)
Bill which is currently going through Parliament. Parliament will then consider
whether it should be retained or modified and, if the latter, how.
What is Regulation 261/2004?
Regulation 261/2004 is an EU Regulation which establishes common rules on
compensation and assistance to passengers in the event of denied boarding,
flight cancellations, or long delays of flights. It replaced Regulation 295/91
which had been repealed. This was due to the fact that Regulation 295/91 did
not provide sufficient protection for passengers, which was one of the main
aims the Community aimed to achieve by introducing that Regulation.
Although Regulation 295/91 created basic protection for passengers, there was
still a high amount of passengers who were denied boarding against their will,
as with those given no warning before cancellations and long delays. It limited
the scope of protection to providing for scheduled flights only, reimbursement
or re-routing, free services and minimum levels of compensation for passengers
denied boarding. On the other hand, Regulation 261/2004 is a modified version
of its predecessor ensuring a higher protection of passenger rights and
enabling air carriers to operate in harmony with them. It covers commercial
flights and addresses denied boarding, flight cancellations and delays. Not
only does it provide compensation for passengers who are denied boarding but
also for those with cancelled flights.1 Furthermore,
The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations
2005 implements Regulation 261/2004 in the UK.
What is Denied Boarding?
In this briefing, attention is drawn to Article 4 which lays out rules for an
air passenger who is denied boarding. Article 2(j) defines denied boarding as
“a refusal to carry passengers on a flight, although they have presented
themselves for boarding under the conditions laid down in Article 3(2)”. Article
3, basically, talks about the scope. However, a passenger may not have rights
under the regulation if the air carrier has denied them boarding on reasonable
grounds i.e. carrying a knife. 2