Europe is debating increasing the delay time for which airlines must compensate passengers to up to 12 hours.

The debate on extending the number of hours required for airlines to compensate passengers for serious delays returns to Brussels. The first item on the agenda of the EU Transport Council meeting in Luxembourg on June 5 is a legislative reform to increase the legal threshold for travelers to receive compensation when their flight is delayed by between two and ten hours. The proposal, paradoxically, is based on the claim that it would benefit consumers because it aims to discourage airlines from canceling flights when they expect a delay of more than three hours. But consumer associations and law firms point out that it will be detrimental to travelers.

Under current regulations (EU261) , passengers are entitled to compensation after a delay of three hours, and the amount varies depending on the distance to the destination in kilometres. This was determined in the Sturgeon case, a class-action lawsuit against Air France and Condor, in which the CJEU ruled in 2009 that passengers should be compensated in the event of a serious delay as if it were a cancellation. For this reason , after a delay of 180 minutes or more , passengers are entitled to compensation of €250 when the destination is less than 1,500 kilometres away; €400 for all intra-EU flights of more than 1,500 kilometres and for all other flights between 1,500 and 3,500 kilometres; and €600 for flights exceeding 3,500 kilometres.

The proposal, which will be debated by the Transport Ministers of the 27 EU countries - Spain will be represented by Minister Óscar Puente , whose initial position is not to support it - and which has the backing of the major airlines, proposes not modifying the compensation amounts, but increasing the delay required to receive compensation from three to five hours for journeys between EU countries and for journeys to or from third countries of up to 3,500 kilometres; to nine hours for journeys between 3,500 and 6,000 km in distance, and to 12 for journeys over 6,000 kilometres.

This historic proposal is complemented by the Polish Presidency of the European Council , which is somewhat more lenient and calls for establishing two single categories of compensation: one for flights over 5 hours of delay when the distance to the destination is 3,500 kilometers, and another for flights over this distance when the delay exceeds 9 hours.

Airlines defend the spirit of the reform and point out that the change would benefit passengers because extending the number of hours would give airlines more room to maneuver and transfer aircraft and crew to the airport in question, thus avoiding flight cancellations. According to calculations by the European trade association Airlines for Europe (A4E) , with the modification being requested in Brussels, 70% of flights canceled after a serious delay last year would have been saved, allowing approximately 10 million more passengers to fly in Europe.

How can this be explained? For airlines, everything works in a chain. Every day, they assign each of their aircraft a route map with the different routes they will operate throughout the day. If the company suffers a delay and knows it will exceed three hours, it risks having the same delays for the rest of the operations scheduled for that aircraft that day, and having to pay compensation for all the flights operated, resulting in enormous losses for the company.

That's why airlines argue, based on figures from Eurocontrol , the European Organization for the Safety of Air Navigation, that with a five-hour lead time or more, 70% of the cancellations due to serious delays mentioned above could be avoided. "Airlines normally have planes and crews on standby, but they don't always coincide with the location where the problem occurred, which often requires reaction time to have those aircraft and crews available to recover those passengers," Javier Gándara, president of the Association of Airlines (ALA), explained to this newspaper, who asserts that the change is clearly beneficial to consumers.

Not everyone, by any means, shares this view. The European Consumer Protection Association (BEUC) recently denounced again that the proposed reform would deprive 85% of passengers of the right to compensation and nullify existing rights. "The current rules on cancellation compensation are clear and should remain unchanged," they added. According to a European Commission study, 17 million passengers suffered flight cancellations and another 16 million suffered delays during 2018. "However, only 38% of those entitled to compensation actually receive it," argues the BEUC, which this week filed a complaint with the Spanish Consumer Protection Agency (EUC) against low-cost airlines for charging for carry-on baggage .

Other organizations also support the idea that passenger rights are at stake. Lucía Cegarra, a legal expert at Flightright , points out that the reform also debates expanding the exceptions for extraordinary circumstances under which airlines do not have to compensate passengers in the event of a delay. "The proponents of this reform argue that it could translate into a reduction in ticket prices, estimated at just €1 per passenger. However, this reduction is minimal compared to the loss of rights it would entail for consumers," she argues.

Cegarra also explains that there are legal arguments why the reform should not go ahead. "Firstly, the Court of Justice of the European Union has already interpreted on several occasions that long delays should be considered equivalent to cancellations in terms of harm to passengers, which justifies the right to compensation (as established in the Sturgeon case) and has been clarifying and refining the application of Regulation 261/2004 for years. Replacing this criterion with much higher thresholds not only contradicts this established jurisprudence, but could also violate the principle of proportionality and the right to effective compensation recognized by Regulation 261/2004 itself, and could even render it practically meaningless by greatly reducing the eligibility of passengers entitled to compensation," he explains.

The lawyer also asserts that the amendment "clearly" puts the airlines' economic interests above consumer rights. "The savings that airlines would directly achieve translates directly into a loss of protection and trust for thousands of passengers in Europe," she asserts.

The June 5 meeting will be decisive for the future of this legislative amendment. If there is no consensus, the debate will move to the Danish Presidency of the EU Council, which will take over from Poland on July 1. As Cegarra explains, even if a political agreement is reached soon, the legislation would not come into force immediately: "After a possible Council agreement, it would still have to go through the European Parliament and an implementation schedule would be established."

The European Air Passenger Rights Association (APRA), of which Flightright is a member along with other legal platforms, has already launched a petition in Spain "to stop this reform and defend the rights of air passengers." According to their estimates, each flight problem costs each passenger an average of 366 euros .

The European airline industry, however, believes that EU261 has created a "predatory industry" of claims agencies that earn millions each year by "withholding between 30% and 50% of passengers' compensation and now advocate for airlines to have no time to transport passengers to their destination."