The Aviation (Consumers) (Amendment) Regulations 2023

Explanatory Note

(This note is not part of the Regulations)

These Regulations restate certain EU case law principles relating to Regulation (EC) 261/2004, by way of amendments to that Regulation. The Regulation and the case law principles are secondary retained EU law within the meaning of section 11(2) of the Retained EU Law (Revocation and Reform) Act 2023.

Regulation 2(2) inserts new definitions into Regulation (EC) 261/2004. In particular, it inserts a definition of “extraordinary circumstances” which may give rise to an exemption from an air carrier being required to pay compensation. The definitions are a restatement and codification of existing case law relating to the EU version of the Regulation while the UK was still a Member State. This includes EU derived case law, in particular, Wallentin-Hermann v. Alitalia ([2009] C-549/07) as well as UK domestic case law in Blanche v Easyjet Airline Company Limited ([2019] EWCA Civ 69).

Regulation 2(3) clarifies, for the purpose of Article 3(1), the circumstances in which a passenger on a flight is entitled to compensation. This codifies a concept set out in various cases including Wegener v. Royal Air Maroc SA (Case C-537/17 [2018] Bus LR 1366) and Chelluri v. Air India Ltd [2021] EWCA Civ 1953 [2022] Bus. L.R. 286.

Regulation 2(4) codifies key concepts in certain EU case law clarifying the scope of Regulation (EC) 261/2004. The codification relates to interactions with rights and obligations under the Montreal Convention. The text of the Montreal Convention can be found on the IATA website, at www.aita.org. The amendments made by regulation 2(4) replicate key effects of Court of Justice of the European Union decisions R (International Air Transport Association) v. Department for Transport (Case C-344/04 [2006] ECR I-403), Nelson v. Deutche Lufthansa AG (Joined Cases C-581/10 and C-629/10 [2013] 1 All ER, and Cuadrench More v. Koninklijke Luchtvaart Maatschappij NV (Case C-139/11 [2013] 2 All ER (Comm) 1152.

Regulation 2(5) provides that a delay of 3 hours or more entitles an air passenger to make a claim for compensation as laid out in Article 7 of Regulation (EC) 261/2004, except in extraordinary circumstances. This codifies a key concept from Sturgeon v Condor Flugdienst GmbH (Joint Cases C-402/07 and C-432/07).

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.

An Explanatory Memorandum is available alongside this instrument on the UK legislation website at www.legislation.gov.uk.