This Regulation prescribes Community law rules for the protection of, and provision of assistance to, disabled passengers and passengers with reduced mobility travelling by air, to protect them from discrimination and ensure they receive adequate assistance. The Regulation clarifies what assistance should be provided by each of the airline and the airport operator and at whose cost.
When does the Regulation apply (Article 1)?
The Regulation applies to "disabled persons and persons with reduced mobility", using or intending to use commercial passenger air services on:
- departure from;
- transit through; or
- arrival at,
an airport situated in the territory of a Member State. In addition, Articles 3, 4 (prohibition on refusal of carriage) and 10 (assistance by air carriers) apply to disabled persons/persons with reduced mobility departing from a non-Member State airport to an airport situated in a Member State on aircraft operated by Community air carriers.
"Disabled persons" / "persons with reduced mobility"
The definition of "disabled person" and "person with reduced mobility" is wide: any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers.
For the purpose of this bulletin, we refer to "disabled passenger" as including both disabled persons and those with reduced mobility.
When is the Regulation in force?
The Regulation entered into force on 15 August 2006 but is not effective until 26 July 2007 in respect of Articles 3 and 4 (prohibition on refusal of carriage of disabled passengers) and, for all other provisions, 26 July 2008.
The Regulation takes effect automatically without requiring separate implementation by individual Member States except in relation to setting of penalties for breach of the Regulation.
Restrictions on refusal of carriage
Article 3 precludes an airline, its agent or a tour operator from refusing on grounds of disability or of reduced mobility to:
- accept a reservation for a flight departing from or arriving at an EU airport; or
- embark a disabled passenger at an EU airport, provided that person has a valid ticket and reservation.
Article 4 Exceptions
Reservation/embarkation may be refused on grounds of disability or reduced mobility:
- in order to meet applicable safety requirements established by international, Community or national law or safety requirements established by the authority that issued the carrier's AOC; or
- if the size of the aircraft or its doors makes embarkation or carriage of the disabled passenger physically impossible.
Duty to notify reasons for refusal of carriage/reservation
When relying upon the Article 4 exceptions, the carrier/agent/tour operator must immediately inform the disabled person of its reasons for refusal of carriage, which must be communicated in writing within 5 working days of a request by the passenger for written notice.
Further action required on refusal of carriage
Following a refusal to accept a reservation, the carrier, its agent or tour operator must make reasonable efforts to propose an acceptable alternative to the disabled passenger.
Following denied embarkation, the disabled passenger (and any accompanying carer) must be offered reimbursement or re-routing pursuant to the Denied Boarding Regulations, but any right to the option of a return flight or re-routing is subject to all safety requirements being met.
A carrier, its agent or a tour operator may require a disabled passenger to be accompanied on a flight by another person who is capable of providing any required assistance, in order to meet applicable safety requirements established by law. According to the Recitals of the Regulation before accepting a reservation carriers, their agents and tour operators should make all reasonable efforts to verify whether there is a reason which is justified on the grounds of safety which would prevent the disabled passenger from being carried. As such, it is perhaps unlikely that any unforeseen need for an accompanying carer could be used as a legitimate reason for refusing carriage where the carrier/agent/tour operator should have made appropriate enquiries at point of sale.
Assistance by airlines
Provision of information
Article 4 of the Regulation places an obligation on the carrier or its agent to make publicly available in accessible format in at least the same languages as the information made available to other passengers:
- the safety rules that it applies to the carriage of disabled passengers; and
- restrictions on the carriage of disabled passengers or their mobility equipment due to the size of the aircraft.
Receipt of information at point of sale (Article 6.1)
Carriers, their agents and tour operators must take all necessary measures to ensure sufficient mechanisms are in place at point of sale in the EU (including telephone and internet sales) to enable disabled passengers to notify the carrier/agent/tour operator of their need for assistance (and, according to the Recitals, to allow the carrier/agent/tour operator to determine at point of sale whether there is a reason for refusal of carriage for safety reasons).
Transmission of information (Article 6)
Where notification of required assistance is received at least 48 hours before the published departure time, the carrier/agent/tour operator must transmit that information at least 36 hours before the published departure time:
- to the managing bodies of the airports of departure, transit and arrival; and
- to the operating carrier (if not the ticketing carrier) unless the identity of that carrier is not known at the time of the notification, in which case transmission should occur as soon as practicable.
In all other cases, transmission should occur as soon as possible.
As soon as possible after departure, the operating carrier must inform the managing body of the airport of destination (if situated in a Member State) of the number of disabled passengers aboard the aircraft requiring assistance from the airport and the nature of the assistance required.
Other assistance aboard the aircraft (Article 10 and Annex 2)
The Regulation requires a carrier to provide the following assistance at no cost to disabled passengers:
- carriage of recognised assistance dogs in the cabin, subject to national regulations;
- in addition to medical equipment, carriage of up to two pieces of mobility equipment per disabled passenger, including electric wheelchairs (subject to: advanced warning of 48 hours; possible limitations of space aboard the aircraft; and the application of regulations concerning carriage of dangerous goods);
- communication of essential information concerning the flight in accessible formats;
- making all reasonable efforts to arrange seating to meet the needs of disabled passengers on request and subject to safety requirements and availability;
- assistance in moving to toilet facilities, if required;
- all reasonable efforts to seat any accompanying carer next to the disabled passenger
in all cases provided that:
- the carrier/agent/tour operator received notification from the disabled passenger at least 48 hours before the published departure time of the flight (but subject to the carrier/agent/tour operator's duties in relation to putting mechanisms in place to enable proper receipt and transmission of information). Notification will cover a return flight with the same carrier; and
- any notifications in relation to the carriage of assistance dogs have been made pursuant to applicable national law relating to the carriage of assistance dogs; and
- the disabled passenger has presented him or herself for check-in, or at the designated disabled passenger arrival point at the airport, at the time stipulated in advance in writing (including by electronic means); or, if no time is stipulated, at check-in at least one hour, or at the designated arrival point at least two hours, prior to the published departure time.
Training (Article 11)
Airlines must provide adequate training to ensure:
- all personnel (including employees of sub-contractors) providing direct assistance to disabled persons have knowledge of how to meet the needs of passengers having various disabilities or mobility impairments;
- all personnel working at an airport dealing directly with the travelling public have disability equality awareness training; and
- on recruitment, all new employees attend disability related training and that personnel receive refresher training courses when appropriate.
Assistance by the airport (Article 8 and Annex 1)
The airport managing body must, at no cost to the disabled passenger:
- designate in co-operation with airport users (normally through the Airport Users Committee), sufficient points of arrival and departure within the airport at which disabled persons can announce their arrival and request assistance;
- provide clear signage to those designated points of arrival and departure and provide basic information about the airport in accessible formats;
- provide assistance and arrangements necessary to enable disabled persons to move through the airport and embark their flight/disembark, including moving through check-in and security/emigration, embarkation onto and dis-embarkation from the aircraft, moving from aircraft door to seat on embarkation and from seat to aircraft door on disembarkation, assistance with storing and retrieving hand baggage on the aircraft at embarkation and disembarkation and assistance in transiting through the airport. This includes provision of wheelchairs, lifts and other necessary equipment for embarkation/disembarkation;
- handle necessary mobility equipment and provide temporary replacements for lost or damaged mobility equipment;
- handle recognised assistance dogs;
- communicate information in accessible formats needed for disabled passengers to take flights; and
- provide training similar to that detailed above in relation to airlines.
Under Article 7, the airport managing body is responsible for ensuring that the passenger gets the above assistance to enable that person to take the flight for which he/she has a reservation, provided that notification of the passenger's particular needs was made to the carrier/its agent or the tour operator at least 48 hours before the published departure time (again, notification will cover the return flight when operated by the same carrier). If no such notification is made, the airport must make all reasonable efforts to provide the specified assistance to allow the passenger to take the flight for which he/she has a reservation.
Assistance through the airport and with embarkation is subject to the disabled passenger having presented him/herself for check-in, or at the designated airport arrival point, at the time stipulated in advance in writing, or, if no time is stipulated, at check-in at least one hour, or at the designated airport arrival point at least two hours, prior to the published departure time.
Who ultimately pays for assistance provided by the airport?
The managing body of the airport may pass on its costs of compliance with the Regulation to airlines using the airport.
Any charges should be reasonable, cost related, transparent and established in co-operation with airport users (normally through the Airport Users Committee) and be shared among airport users in proportion to the total number of passengers carried to/from the airport.
The Regulation allows a carrier to agree with the airport that the airport will provide a higher standard of assistance to that carrier's passengers than strictly required under the Regulation, in which case, the airport authority can levy an additional charge against that carrier (subject to similar principles of reasonableness, transparency, cost relativity and consultation with the carrier concerned).
Rights of complaint/compensation (Article 12)
Liability for the obligations under the Regulation cannot be limited or waived.
The Regulation itself provides no right of compensation for disabled passengers other than that which they would be entitled to under existing laws, e.g. for refusal of carriage, under the Denied Boarding Regulations or for loss or damage to mobility equipment, under the Montreal Convention.
The Recitals to the Regulation suggest that where a passenger has a claim to reimbursement or re-routing under the Regulation, and in addition under other Community legislation (e.g. the Denied Boarding Regulations), the passenger should only be entitled to be compensated once for the same loss (although he/she is free to chose under which rights to claim compensation).
The Regulation sets out a mechanism for complaints for alleged infringements of the Regulation and looks to individual Member States to set adequate penalties for breach of the Regulation. Complaints by disabled passengers must first be submitted to the airport authority or the carrier concerned and then, if necessary, to the authority designated by the applicable Member State for policing and enforcement of the Regulation or any other competent body designated by the Member State.
Although many airlines may already, to varying extents, be compliant with some of the duties under this Regulation, airlines will need to carry out a detailed review of policies and procedures and Conditions of Carriage to ensure compliance prior to the Regulation taking effect. Bird & Bird is happy to assist with this.
Although the Regulation further regulates an already complex area, at least it does assist in providing more certainty in setting out which of the airline and the airport is responsible for providing assistance in the airport and aboard the aircraft (a position which is currently not entirely clear, as shown e.g. by the case of Ross v Ryanair in the English Courts).
Carriers must ensure that adequate mechanisms are in place at point of sale to gather required information about passengers' disabilities and needs for assistance and to transmit that data within the timescales required by the Regulation, whilst remaining fully compliant with data protection obligations.
It will be interesting to see how strictly carriers' duties, e.g. in relation to design of cabin layout, will be interpreted in case of any dispute.
For further information on this issue please contact:
Catherine Erkelens in Brussels on +32 (0)2 282 6000 or email email@example.com