Can I still claim compensation for flight delays if we leave the EU? What does Brexit mean for passenger rights? A guide on the implications for air passengers in a post-Brexit world.
Implications of Exiting the European Union on Flight Delay Claims
The Department for Exiting the European Union has published The Great Repeal Bill White Paper detailing the proposals for a functioning statute book upon leaving the EU.
The proposals have a direct impact on the application and validity of EC261/2004 in the UK.
At this time it is not clear whether Regulation 261 will be converted into UK law as the proposals allow a degree of flexibility over certain laws.
This document attempts to gain some clarity over the likelihood and extent Regulation 261 will continue to apply in the UK post Brexit.
What is EU Regulation 261/2004
It is applicable to EU Member States and countries not in the EU but that have adopted the regulation (such as Norway, Iceland and Switzerland).
The regulation applies to any flight departing from a Member State airport, or any flight arriving into a Member State airport on an EU carrier.
What Happens to EU261 if we leave the EU?
The Repeal Bill White Paper states in section 2.8 that ‘EU regulations – as they are applied in the UK the moment before we left the EU – will be converted into domestic law by the Bill and will continue to apply until legislators in the UK decide otherwise.’
So initially this seems like a plus point. The EU 261 regulation will be brought into domestic law and so will still apply to passengers based on the wording of EU261.
However, there are two crucial elements to this point.
The first is that the regulation will continue to apply ‘until legislators in the UK decide otherwise’. This means the government can simply decide to end any EU regulation should they so desire – quite the loophole.
The second is that were we to leave the EU, then we would fall out of the scope of EU261 which states that a flight is covered if it departs an EU airport or arrives in the EU on an EU carrier. With the UK no longer in the EU we would lose coverage on all flights except those from the EU arriving into the UK, and flights from the UK to the EU on EU airlines.
British Airways Case Study
The recent BA debacle is an interesting case study to highlight the problem. Because we are part of the EU all passengers stranded at Heathrow and Gatwick were covered under the regulation and will be entitled to compensation as well as care and assistance while delayed.
Further, anyone stranded outside the EU waiting to fly back to the UK on British Airways was also covered and afforded the same protection under the regulation.
Fast forward to a point where we are no longer part of the EU and no-one in either of the above situations would be covered by the regulation. They would not be entitled to any financial compensation, re-routing, overnight accommodation, or food and drink during the delay.
The only BA flights that would still be covered are those arriving into the UK from the EU.
Current and post-Brexit coverage of EU261:
|Departing from||Arriving to||Airline||Currently Covered||Post-Brexit|
|The UK||EU Member State||EU airline||Yes||Yes|
|The UK||EU Member State||Non EU airline||Yes||No|
|The UK||Non EU Member State||EU airline||Yes||No|
|The UK||Non EU Member State||Non EU airline||Yes||No|
|EU Member State||The UK||EU airline||Yes||Yes|
|EU Member State||The UK||Non EU airline||Yes||Yes|
|Non EU Member State||The UK||EU airline||Yes||No|
|Non EU Member State||The UK||Non EU airline||No||No|
As you can see, the impact on coverage of the Regulation, were the UK to cease membership of the EU is significant. Flights departing the UK are affected the most as the UK effectively becomes a Non-Member State.
If the government were to enact legislation to bring the regulation into UK law then it should also apply to flights departing the UK and UK registered air carriers – as is the case in non-EU countries Norway, Iceland and Switzerland.
However, the position of UK airlines and whether they would be under obligations of EU261 would likely form part of the negotiations of exiting the EU.
The worst case scenario is that the government uses its delegated powers under the Great Repeal Bill White Paper and passes secondary legislation which effectively ends any coverage of EU261 for flight delays in the UK.
Whatever outcome is reached, the regulation continues to be in force – the UK exiting the EU has no impact on EU261 as a regulation in the EU. This would therefore mean that only those flights arriving into the UK from the EU, or arriving into the EU on an EU carrier from the UK would be covered – and those hectic scenes involving BA recently would leave passengers with little protection.