Air passenger rights before, during, and after COVID-19 – where to next? Masha Korošec 1 1. Introduction. 2. Scope of Regulation 261/2004. 3. Air passenger rights. 4. Extraordinary circumstances as a way out for air carriers. 4.1 Technical issues. 4.2 Non-compliance with the rules of the air carrier. 4.3 COVID-19 as an extraordinary circumstance? 5. Concluding thoughts and guidelines for the future. Since its adoption, Regulation (EC) No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights has been faced with a challenge to balance on one hand rights and interests of air passengers and the other, the interests of air carriers. The paper provides a general overview of the current provisions and comments on their deficiencies from a critical point of view. Through the analysis of the recent case law the concept of »extraordinary circumstances« is addressed as well. The latter is of particular importance as only by proving such circumstances can the air carrier be released from the obligation to pay standard compensation to passengers. In the light of the foregoing, the paper examines the case law established by the Court of justice of the EU. KEYWORDS: Air transport, air passengers, air passenger rights, extraordinary circumstances, Regulation 261/2004, compensation, flight cancellation, flight delay, denied boarding. 1. Introduction Regulation (EC) No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights (“Regulation 261/2004” or “the Regulation”) aims at guaranteeing air passengers’ rights in case they are unable to travel due to any reason that is out of their control. Since its adoption, the Regulation suffers from ineffective enforcement, non-compliance and inconsistencies in its interpretation. Framed with in dubio pro consumatore perspective, the Regulation imposes a disproportionate burden on the airlines, but simultaneously, passengers are confronted with ineffective enforcement of their rights - a concern that became more evident during the pandemic of COVID-19. Due to the Regulation’s vague wording, the Court of Justice of European Union (“the CJEU”) adopted an excessive amount of case law in attempt to clarify its provisions. The lack of passenger awareness and issues with the enforcement of their rights undoubtedly call for a reform, the initiation of which is apparent from the Proposal for a revision of the passenger 1 PhD Candidate at the Faculty of Law, University of Ljubljana; Teaching and Research Assistant at the Faculty of Law, University of Ljubljana; masha.korosec@pf.uni-lj.si
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