The single market for air transport has brought Europeans important benefits, including a wider choice of destinations and carriers and lower fares. It has helped open air transport to most citizens, for whom now it is often indispensable for active participation in economic and social life. However, people with disabilities and persons with reduced mobility have not been able to take part of all these advantages to the same extent as other citizens. Increased competition due to the opening up of the market has all too often meant low quality travel, and even discrimination, to disabled people.
The European Disability Forum regularly receives information by our members about discrimination experienced when travelling – or trying to travel – by air. The reported discrimination relates to everything from denied boarding or booking because you are disabled, no or unsatisfactory assistance, charging for assistance or undignified treatment, to damaged or lost mobility equipment that is not being reimbursed.
The European Disability Forum has been actively lobbying for legislative measures putting an end to this situation since several years. The European Commission has also been clear in their intention to ensure equal opportunities for air travel for disabled people. It first raised this question in 2000 in its Communication on Air Passengers in the European Union. In 2002, the European Commission published a consultation paper regarding the question on whether any legal measures should be taken on Community level or not. All stakeholders were invited to provide their comments to questions relating to the situation of disabled people travelling by air. It was a strong response to the consultation, and there was a wide consensus that there was a need for community law strengthening the rights of disabled people travelling by air. Two basic principles were agreed: disabled people should not be denied boarding and disabled people should receive assistance without additional charge. The major point of disagreement related to who should be responsible for the assistance provision: airlines, airports or independent service providers.
Both airports and airlines have signed voluntary commitments on assistance to air passengers with reduced mobility. However, those commitments have failed to put an end to discrimination of disabled air passengers in Europe. Moreover, the documents do not treat the question on responsibility for the assistance provision.
A first regulation, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, was adopted by the European Parliament and the European Council in February 2004.
Basically, this regulation ensures that all passengers who are subject to delays of two hours minimum, shall get meals and refreshments, hotel accommodation when necessary, and shall be allowed to make free phonecalls, or to write e-mails, telex or fax messages. There is an exception to the right to compensation if the delay is caused by ‘force majeur’. In cases of overbooking of a flight, leading to denied boarding, the passenger has the right to re-routing or reimbursement and, in addition, compensation if the denied boarding is against the will of the passenger. However, operating air carriers shall give priority to carrying disabled persons and any persons, or certified assistance dogs, accompanying them. In case of cancellation, reimbursement in addition to the other rights is the main rule.5
The legislators recognize in this regulation that air operators shall meet the needs of disabled people and their assistants in case of cancellation or long delay or denied boarding due to overbooking. This implies, for example, ensuring that transport and hotel accommodation is accessible.
Although this regulation is valuable for all passengers, including disabled passengers, it was obvious after its adoption that there was still a need to tackle the discrimination faced by disabled air passengers by according them a guarantee to be treated in an equal way as all other passengers.
Because of this, the European Commission came out with a proposal in February 2005, on the rights of persons with reduced mobility travelling by air.7 This proposal was applauded by the European Disability Forum, not only because of the urgent need for legislative measures, but also because this was the first proposal for disability-specific legislation at European Union level ever.
The lobbying campaign was rather short but very intensive. The industry had strong interests and organizations of disabled people had to fight very hard in order to obtain a satisfactory result. EDF published a position paper on the proposed regulation where it supported the three fundamental principles of the proposal
In its position paper EDF commented on the proposal, argued for re-wording of some Articles and expressed that there is a need for additional rights if equal opportunities for disabled air passengers is to be ensured.
EDF recommended in particular:
EDF had close contacts with all stakeholders throughout the legislative procedure.
The outcome is basically a real success-story. Most principal demands from EDF were accepted by both co-legislators, the European Parliament and the Council of the European Union. The regulation on the rights of disabled people travelling by air was finally adopted on 5 July 2006.
The legislation adopted is a regulation. This is the strongest legislative act of the European Union. A regulation does not need any implementation measures at Member State level, but is directly applicable as such, in all its elements.
The regulation talks about disabled people and persons with reduced mobility (Article 2 (a)). In the definition it is explained that this means any person with reduced mobility or a sensory impairment, intellectual disability 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.
An airline shall not refuse, on the ground of reduced mobility or disability, to accept the reservation of a person or to embark a person (Article 3).
The idea of the regulation is that you shall have the same possibilities to travel by air as any other person (Article 1 (a)). This includes being provided with un uninterrupted assistance that is adapted to your individual needs – from the point of arrival at the airport with the transport mean you have chosen, to the point of departure of the airport of arrival (Article 7). The assistance should be provided at no additional charge (Article 8) by a person who has undergone disability awareness and disability equality training (Article 11).
As the idea is that you shall experience an equal journey as other passengers, you do not only have the right to be assisted to and from the aircraft, but you also have the right to bring the mobility equipment and assistive devices you need, to get essential information in accessible formats, to travel with your guide dog on board, to move to toilet facilities and so on.
Should your mobility equipment or assistive devices be lost or damaged during the trip, you have the right to compensation (Article 12). However, in the regulation it is only stated that such compensation should be provided in accordance with international, Community or national law.
Such legislation does not yet exist at national or European level. There is only a convention at international level, which has a compensation limit. Therefore, European Commission has launched an external study to examine the possibility of enhancing the existing rights of air passengers whose mobility equipment or assistive devices are destroyed, damaged or lost. On basis of this study the Commission will consider whether any new legislative proposal is necessary in this field, and identify the necessary provisions.
There is a possibility to deny a disabled person to travel in order to meet applicable safety requirements established by national, Community or International law (Article 4). These safety reasons shall be publicly available in accessible formats. It is also possible to deny a person to travel if the size of the aircraft or its doors makes the embarkation or carriage of a disabled person physically impossible. In case of denied boarding the person in question shall be offered re-imbursement or re-routing and the passenger shall immediately be informed of the reasons for the denied boarding.
If you wish to receive assistance from the staff you should pre-notify your needs at least 48 hours before the departure of your flight at any of the points of sale of tickets (Article 7). However, even if you give shorter or no pre-notification, the managing body of the airport shall make all reasonable efforts to provide the assistance anyway, but this cannot be guaranteed. The notification given also covers your return flight.
If a disabled person considers that his or her rights according to the regulation have been infringed, he or she should contact the managing body of the airport, or the airline concerned, depending on where and by whom the discrimination occurred (Article 15).
If the disabled person will not obtain satisfaction in this way he or she can contact any of the enforcement bodies set up by the Member State, and that body is then responsible for ensuring that the complaint will be dealt with.
Although most of the demands of EDF were taken on board by the legislators, there are also several shortcomings with the regulation.
The most serious problem is a loophole within the legislation, which EDF fought hard to take out, but without success. The regulation actually opens up a possibility for air carriers to deny boarding of disabled people for “safety reasons” established by International, European or National law, as briefly mentioned in the previous chapter. The latter possibility seriously weakens the regulation, as this means that different laws might be adopted in different countries, leading to a situation where a disabled person might be accepted to fly out from his or her country, but not back. EDF fears that this possibility to establish national legislation could be used in an arbitrary way as lack of knowledge about disability is the most common reason for denied boarding today. Very often, air carriers claim that a disabled person is a safety risk just because they lack knowledge about what disability really is.
However, it is important to notice that these safety reasons must be “justified”. In most cases it will be difficult to justify that a disabled person would be a risk for the safety. It is also an improvement of the situation that air carriers cannot base their judgment on their internal policy. This makes the situation more transparent than is the case today.
At European level, a regulation was adopted on 16 January 2007 (the ‘EU-OPS’ regulation) establishing some rules on the carriage of persons with reduced mobility.
The European Civil Aviation Conference, ECAC, is currently drafting an advisory note on procedures for carrying disabled people and passengers with reduced mobility in order to respect safety requirements. This will hopefully ensure a common interpretation of the new EU-OPS regulation throughout the European Union. EDF is actively contributing to this drafting process, and it seems like the final outcome will recommend carriers to be very restrictive in refusing disabled people to travel, and that no general limitation of the number of disabled people travel on the same plane will be applied. Even though this advisory note is not binding for Member States, it will hopefully serve as guidelines when national safety legislation is interpreted. However, the final decision about the carriage of a person is always for the pilot to take.
If the circumstances in a particular case will lead an air carrier to estimate that there is a safety risk in carrying a disabled individual, but that this risk could be avoided if the passenger travels accompanied, then the air carrier can set this as a condition for transporting the passenger. EDF lobbied strongly in order to ensure that the ticket of the assisting person should be offered by the air carrier in such situations; however, unfortunately without success.
Although the regulation states in its Article 12 that a passenger shall be entitled to compensation if his or her mobility equipment or assistive devices are damaged, it does not clarify whether this means unlimited (full) compensation or not. Instead it only states that compensation shall be provided in accordance with International, Community or national legislation. The relevant international legislation that exists today is the Montreal Convention, where a maximum amount of compensation for damaged “luggage” is set. This amount is restricted to 1000 special drawing rights (about 1400 euros), which is far from sufficient, as mobility equipment and assistive devices can cost far more than that to repair or replace.
Another shortcoming with the Montreal Convention is that mobility equipment and assistive devices are under the same rules as ordinary luggage. EDF firmly believes that mobility equipment and assistive devices should not be considered as luggage, as they are indispensable tool for independence.
In addition, several air carriers do not respect the provisions in the Montreal convention. Some air carriers even oblige wheelchair users to sign a “limited release tag” which make you waiver from your rights to compensation in case of damaged, destroyed or lost “luggage”. This kind of practice must, according to EDF, become unlawful. The Article 13 of the regulation also states that no rights under the regulation can be waivered.
As the regulation does not deal with the question of compensation in a satisfactory way, the Commission has launched a study in order to see whether there is a need for enforced rights for disabled people having their mobility equipment or assistive devices damaged, as briefly mentioned above.13
The European Civil Aviation Conference (ECAC) is an intergovernmental organization whose objective is to promote the continued development of a safe, efficient and sustainable European air transport system. In doing this, ECAC seeks to harmonise civil aviation policies and practices amongst its Member States. ECAC is not a legislative body. It works by the developments of standards and best practice to which Member States make voluntary commitments.
ECAC has a working group on Persons with Reduced Mobility. EDF has the status of observers at the meetings of this working group and we contribute actively to the discussions and the development of best practice documents within the working group. Several documents with direct relevance for disabled people have been adopted by ECAC.
Although ECAC only provides guidance without any legal effect, their documentation is extensive and the value of ECAC documents increased through the explicit recognition of ECAC in the regulation on the rights of disabled air passengers (preamble 10 and Article 9). The Commission also stated in its proposal for this regulation that it supports the work of ECAC and its documents on disabled people, notably its comprehensive guide on assistance to disabled people and its code of good conduct.15 Since the adoption of the regulation, two new documents have been adopted of great value for the disability movement, treating the issue of training. EDF was mandated by ECAC to take the lead in the drafting of those documents, although all major stakeholders were invited to participate in this work. Those documents will hopefully be respected by airlines and airports when providing disability awareness and disability equality to their personnel.
EDF is supporting the work of ECAC in developing detailed guidance on how to ensure a non-discriminatory and harmonious implementation of the regulation in all Member States.
EDF also meets regularly with the European Commission in order to monitor the implementation of the regulation and to provide information on shortcomings in the implementation as reported by the EDF membership.
EDF provides information on shortcomings in current European and International legislation on compensation for damaged mobility equipment and assistive devices to the external consultant, responsible for investigating this matter on behalf of the European Commission, who has launched this study as a follow-up of the adoption of the regulation on disabled air passengers. This study will address in particular the issue of compensation thresholds for damaged or lost equipment and devices. It will check whether any new legislative proposal is necessary in that field. The study, awarded to a consortium of Civic Consulting (lead) and NEA transport, research and training by a call for tender, has started in December 2006. EDF has already been interviewed by the consultants.
EDF will provide further input to this study and encourages all members to support the secretariat in this work, by providing examples or ideas.
The consortium will also contact all national members of EDF and ask for an interview.
EDF encourages all members to facilitate the study by showing the need for legislation, ensuring full compensation for disabled people having their equipment destroyed or damaged. There is also a need for training of airport and air carrier staff on how to deal with mobility equipment and assistive devices.
An additional difficulty seems to be that several airlines ask for disabled people to take an additional insurance if they wish to have a full right to compensation in case of damaged equipment guaranteed. This is discriminatory in itself, but further more, EDF has received several examples showing that insurance companies do not provide such insurances. One EDF member contacted the Belgian Insurance Ombudsman concerning this situation, but were explained that there was nothing he could do, as he cannot force companies to take any risks. It seems that the most logic solution to this problem would be to oblige air carriers through European legislation to take this kind of insurance themselves – at no additional charge for the passenger – in order to ensure that disabled people can be confident in receiving full compensation in case their mobility equipment or assistive devices would be destroyed or damaged by an air carrier.
As assistance can be provided from the point of arrival at the airport, there is an obligation for airports to designate set down points at the airport, where disabled people can announce their arrival. Such points shall be designated in cooperation with representative organizations of disabled people, taking into account local circumstances. Local organisations of disabled people will therefore have an important role to play in this procedure. The points of arrival shall be clearly signed and shall offer basic information about the airport, in accessible formats.
Quality standards for the assistance provided to disabled people shall be set at all airports with more than 150 000 commercial passenger movements per year. These quality standards, and resource requirements for meeting them, shall be set in cooperation with representative organizations of disabled people. As these standards should be adapted to the specific situation at each airport, the local disability organisations will have a responsibility in this process too. Even though airports with less than 150.000 passengers per year do not need to set quality standards, they still need to respect all other provisions of the regulation. The annexes of the regulation, where the obligations of the airlines and the airports are specified, will serve as a set of minimum quality standards in this respect. For airports above this threshold, more detailed quality standards need to be set. ECAC best practice documents can serve as guidelines when drafting those standards.
Cooperation has a stronger meaning than consultation, which was the terminology that was originally used in the draft regulation. Cooperation implies that decisions by the airport shall somehow be made together with the disability movement. Cooperation is much more than just taking note of the point of view of the disability movement. Moreover, it is in the interest of airports to work closely with the disability movement, as airports will be responsible in case they fail to live up to the assistance requirements listed in the regulation.
It also seems crucial that representative organisations of disabled people should be involved in the disability equality and disability awareness training at airports and to monitor the training in order to ensure that it respects the guidelines adopted by the European Civil Aviation Committee.
Each Member State shall designate a body responsible for the enforcement of the regulation. The European Commission has recently written to all Member States to urge them to designate such a body as soon as possible. As long as a Member State has not designated an enforcement body, any complaints under the regulation can be sent to the Permanent Representation to the European Union of the Member State of the complainant.
Member States also have to inform disabled people of their rights under the regulation and how to make complaints. It would be useful if national and local disability organisation provide some guidance to Member States on how to best inform their disabled citizens about their rights.
Finally, Member States shall lay down rules on penalties relating to infringements of the regulation and shall take all measures necessary to ensure that those rules are implemented. Those penalties shall be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission.
EDF has sent out a demand for contact persons in each national disability council, responsible for cooperation with their domestic airports in relation to the regulation and for coordinating the supervision of the implementation of the regulation at Member States level. A list of contacts is attached as an annex to this document, but the list is not yet complete as some National Disability Councils still have to appoint a contact person.
The preliminary list has already been presented to Airports Council International, in order to help airports to get in touch with the right contact person in each Member State when getting to the stage in the implementation of the regulation when cooperation with representative disability organisations is required.
In relation to the airports, the role of the contact person is to be prepared to facilitate the coordination of the cooperation between national airports and national disability movement. It will in particular be focused on the obligation of cooperation when it comes to the location of designated points of arrival and the setting of quality standards and financing of assistance. In addition, it could be useful to provide airports and airlines with support relating to disability awareness training, and also to promote a generous interpretation of the rights in the regulation.
It is not expected that the contact person shall undertake all this work him- or herself. Indeed, in most Member States there are several airports, and it seems logic that local disability organisations are in a better position to cooperate with their local airport. However, the contact persons could, in cooperation with their national disability federation, make sure that proper information about the regulation is provided to local organisations and can support airports in finding a representative contact person at local level.
In relation to the national enforcement body, the responsibility of the contact person could be to alert the enforcement body in case infringements of the regulation, or incorrect interpretation, are suspected.
In relation to EDF, the role of the contact person is to report back on the evolution in the respective Member State. What meetings have the national disability federation been invited to? What was the outcome? Are things advancing as they should?
The EDF secretariat will facilitate the exchange of best practice between the national contact persons and support their work with up-dated information about the state of play of the implementation at European level. The EDF secretariat is also happy to answer any questions about the regulation or to support the contact persons in any other way.
The regulation will apply with effect from 26 July 2008, except Articles 3 and 4, which shall apply with effect from 26 July 2007.
Until then an airport is not under a legal obligation to apply the rules of the obligation, but Members States are not allowed to take any measures that are contradictory with the spirit of the regulation.
From 26 July 2007 there is a legal obligation for air carriers to accept a reservation from a disabled person and to embark a disabled person. As mentioned above, there are exceptions to this obligation, in order to meet non-discriminatory safety requirements established by international, Community or national law or in order to meet safety requirements established by the authority that issued the air operator’s certificate to an air carrier. By this time, air carriers and their agents, must make available information in accessible formats on these safety rules. This information shall be available in at least the same languages as information given to non-disabled passengers. They must also make available any restrictions on mobility equipment due to the size of an aircraft.
Air carriers are not under a legal obligation to consult with organisations of disabled people when implementing this Article and it is not specified what formats that are covered by the scope of it. EDF therefore encourages its membership to advice air carriers on this matter in due time in order to ensure that information in Braille, large print, audio formats, easy-to-read etc will be available (on request). EDF will also ensure that the European associations of airlines are aware of the meaning of accessible formats (Association of European Airlines, AEA, and European Regional Airlines, ERA).
The entire regulation will be applied with effect from 26 July 2008. By this time, the whole system required to ensure non-discrimination must be set up under the responsibility of airports, airlines and Member States. Disability organisations can and should facilitate this implementation:
