The Commission rewrites 261: ‘extraordinary circumstances’ meets ‘intolerable sacrifice’
Transport Commissioner Vàlean cannot take a trick when it comes to the always vexing question of the 261/2004 passenger rights regulation. Always hated by the airlines that think it too generous, the various airline trade associations have been on a campaign to remove it, or at least trim it, since the day it was made law. Stoutly, the Commission has held the line against these attacks.
Now, a new front has been opened up, thanks to our new friend, the coronavirus pandemic. At first, Commissioner Vàlean came out strongly defending the 261 line, demanding that the airlines honour cash refunds rather than issue vouchers. Airlines around the world squealed.
Eventually, more than necessary for a qualified majority of member states sided with the airlines and the fight to change it, if only on the question of vouchers versus cash refunds, looks like it will go to the big time. Sensing the change of mood, Ms Vàlean realised that she needed to change tack.
Her chance to do that came with a written question from a Spanish MEP, Izaskun Bilbao Barandica, asked in mid-December, before the pandemic, raising again the question of ‘extraordinary circumstances’. Only in extraordinary circumstances are airlines spared having to provide for passengers stranded by a decision not to provide the service.
You can imagine the thinking inside the Commission – they realised that they misread the mood on 261, so now they need to claw back. The question from Bilbao Barandicia was the perfect chance. So in response to a question about a delay caused by a birdstrike, they struck.
Mechanical issues might not be an extraordinary circumstance (a previous, extraordinary decision of the European Court of Justice, which on 261 has gone feral and is the index patient for the stupidity that has flowed since) but airlines are excused, Ms Vàlean suggested if to do something more would require ‘an intolerable sacrifice’. No, we don’t know what that means either, but you can already predict years of high billing work for lawyers across Europe trying to find out.