AIR PASSENGER RIGHTS BEFORE, DURING, AND AFTER COVID-19 circumstances they are facing.34Should the carrier not provide care, and the passengers take care of it independently, they may require reimbursement for reasonable and justified expenses they have incurred.35 The CJEU recently clarified in the NIKI Luftfahrt case that the airline's obligation to provide care is limited to selecting and offering accommodation to the passenger, excluding the mere organization of the implementation of the accommodation arrangement.36 The CJEU added that regardless of such limitation of the air carrier's obligation under Article 9 of the Regulation, the air carrier is still obliged to pay particular attention to the needs of passengers, for example reduced mobility. Put differently, the air carrier must select the hotel carefully, having ascertained that that hotel is capable of meeting reasonable expectations in terms of quality and safety.37 Moreover, it has been highlighted by the European Commission that Regulation 261/2004 lacks clear limitations on the duration of accommodation, especially in the event of extraordinary circumstances, endangering the carrier's financial stability. Thus, the Amendment Proposal adopted by the European commission in 2013 has set a cap on the total cost to accommodation at EUR 100 per night (per passenger) and to maximum of 3 nights. It is in the discretion of the air carrier to determine whether this limitation will be applied. In any case, the passengers should be provided with information about available accommodation after the three-night period.38 The latter is however not included in the latest European commission’s proposal of November 2023. While this approach considers the financial capacity of airlines, it could prove overly restrictive, especially during a pandemic when transportation and passenger mobility were affected by numerous government measures. Furthermore, the Commission's Proposal in 2013 did not address financial limitations that would apply to food and beverages provided as part of the care as described above, leading to situations where provided meals are inadequate given the waiting time. An example of such poor practice are 34 Court of Auditors, Special Report 30/2018: EU passenger rights are comprehensive, but passengers still need to fight for them, p. 12. 35 Case C-12/11, McDonagh of 31 January 2013, para. 66. 36 Ibid., para. 27. 37 Ibid., para. 29. 38 Recital 16 and art. 9(4) of Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 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 and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, COM (2013)130 final of 13.03.2013.
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