Air travel reset: How passengers’ rights will change under the overhauled Regulation (EC) 261/2004 | In Principle

A year from now, on 23 October 2027, Regulation (EU) 2026/2202 will begin to apply. It is the first major overhaul of Regulation (EC) 261/2004 (establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights) as well as the accompanying Regulation (EC) 2027/97 (on air carrier liability in respect of the carriage of passengers and their baggage).

For the aviation industry and passengers, this will not be a revolution so much as an attempt to bring order to this area, although there are certain new features. The amendment codifies the existing rulings from the Court of Justice of the European Union while introducing new operational and informational obligations. Consequently, the regulation has grown in volume and become harder to parse—and not always any clearer than it was, which undoubtedly was not the lawmakers’ intention. To help our readers overcome the difficulties of working through the new rules, we provide an overview of selected key changes.

The complaint clock—the passenger has 9 months (or 12?), the airline 30 days

One of the biggest changes for passenger service desks is the introduction of uniform EU-wide deadlines for the complaint procedure, which previously were governed by national law and thus differed across member states. A passenger will have 9 months from the actual departure date indicated in the ticket to file a request for compensation. The carrier must promptly confirm receipt of the request via a durable medium (e.g. e-mail), and then, within 30 calendar days, either pay the compensation or provide the passenger a justification for denial of the request, along with information about the mechanism for seeking review of the denial.

Interestingly, the new regulation requires carriers to take the initiative and inform passengers of their potential right to compensation within 96 hours after the completion of their journey. This notice should include instructions on how to file a request for compensation.

Additionally, each carrier and intermediary must, by law, introduce an internal mechanism for considering “complaints” (the Polish version of the regulation gives this as skarga, although the term reklamacja would be more accurate) concerning rights and obligations covered by the regulation. This in itself is nothing new, as in practice most airlines (although not all, including some from outside the EU) obviously have such systems in place, although they may be set up in different ways. But the new regulation goes further, as it partially consolidates the complaint procedure, particularly the deadlines. A passenger may file a complaint either:

• Within 12 months after the date when the flight was performed or was scheduled to be performed, or
• Within 3 months after filing a request for compensation—whichever is later.

The passenger must receive confirmation of receipt of the complaint within 7 business days, and a response on the merits generally within one month, or two months at most.

It is not clear in this respect how the procedure for considering “complaints” differs from the process for responding to a “request for compensation.” The regulation distinguishes between these steps, but provides different (although partially connected) deadlines for passengers to follow these two paths for asserting their rights. The practice will reveal whether these differences arise, and their extent.

Three-hour delay—in the regulation, not just in a court ruling

One of the most noticeable changes is express inclusion in the regulation of the passenger’s right to monetary compensation for a delayed flight. Many people forget that so far, this basis for seeking compensation has arisen solely from the case law of the Court of Justice (e.g. in C-402/07 Sturgeon and C-432/07 Böck). Originally, Regulation (EC) 261/2004 did not provide for compensation to be awarded for mere delay of a flight, but this right was “found” by the Court of Justice in a case brought by Ms. Sturgeon (who was herself a lawyer). Now this rule is clearly set forth in the regulation: when passengers reach their final destination with a delay at arrival exceeding three hours, they can request compensation in accordance with Art. 7 of the regulation, i.e. in the amount of EUR 250, 400 or 600 depending on the length of the flight.

“Extraordinary circumstances” now defined, with a list in the annex

The second key “change,” a matter of housekeeping, is the adoption of an EU definition of “extraordinary circumstances.” This essentially codifies the case law of the Court of Justice. Under the definition included in the amended regulation, this means “events which by their nature or origin are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond the actual control of the air carrier.” Both conditions—not inherent, and beyond the carrier’s control—must be met, which also confirms the requirements developed by the Court of Justice.

A true novelty is the non-exhaustive list of extraordinary circumstances annexed to the amended regulation. The list is divided into:

• Circumstances not arising from the operation of the aircraft (e.g. natural disasters, meteorological conditions, war, and serious cross-border threats to health)
• Passenger-related incidents (e.g. unruly passenger behaviour, medical emergencies)
• Other incidents (sabotage or terrorism, hidden manufacturing or design defects revealed by the manufacturer or a competent authority, air traffic control or airport capacity restrictions, unscheduled airport closures, breakdown of fuelling systems, certain categories of strikes, damage caused by third parties, or contamination of the runway).

The European Commission is to review the list of extraordinary circumstances every five years, and if needed propose legislation to update the list. Thus an airline claiming extraordinary circumstances will be able to rely on the list, and if the list does not expressly cover the incident in question, the airline may still assert—if it can prove—that the difficulty in question involves “extraordinary circumstances.” However, the current list is quite broad and covers most cases encountered in practice of difficulties beyond the airlines’ control, confirming the extensive case law in this area from the Court of Justice and the national courts under Regulation (EC) 261/2004.

But the path for the airline to be relieved of liability for compensation remains unchanged: the carrier must prove a direct causal link between the occurrence and the disruption to the flight, and show that despite taking “all reasonable measures,” the disruption could not have been avoided. Typically, it is the existence of this link and the lack of “reasonable” alternatives that is most disputed, particularly in court, and the amendment does not change this dynamic.

A real but minor change involves the scope of the right to assistance. If the disruption was due to extraordinary circumstances, the carrier may limit passengers’ lodging to a maximum of three nights (before, this duty was unlimited, regardless of the reason for the flight cancellation or delay). Particular controversy was sparked by the mass cancellations of flights due to the eruption of the Eyjafjallajökull volcano in 2010, when airlines had a legal obligation to provide lodging to all stranded passengers, sometimes even for weeks. That event may lie behind this change.

Tarmac delay

Entirely new is the EU-level legal definition of “tarmac delay”—an unfortunate situation familiar to passengers but not to the law. Tarmac delay means a period of over 30 minutes when the aircraft remains on the ground between the closing of the doors and take-off (or between touch-down and opening of the doors). If the tarmac delay reaches two hours at an airport in the EU, the carrier must return to the gate or other location allowing the passengers to disembark. A tarmac delay can be prolonged only for safety, immigration, air traffic control or security reasons. Additionally, throughout the tarmac delay the carrier must maintain the cabin at an appropriate temperature and allow passengers free access to toilets and drinking water.

Connecting flights

The regulation also directly addresses the situation where a passenger misses a connecting flight due to disruption of the earlier flight (in the case of flights purchased as part of one air transport contract). Before, the passenger’s rights in this situation generally arose only under the case law, which for the most part held that the passenger was entitled to compensation. The amendment confirms this rule, but imposes additional obligations on the operator of the earlier (delayed) flight, as it is responsible for rerouting the passenger and providing assistance. Where the carrier cannot reroute the passenger within five hours from the planned departure, it must also offer the passenger reimbursement. The passenger also retains the right to compensation under Art. 7 of the regulation if they reach their destination over three hours late.

The situation is different in the case of combined tickets under separate air transport contracts, that is, when passengers themselves arrange their journey under separately purchased tickets. Then, in the case of a missed connection due to delay of the earlier flight, Art. 7, 8 & 9 do not apply. The general rules still apply to the earlier flight—i.e. if the earlier flight is cancelled or over three hours late, the passenger is entitled to compensation and, where applicable, assistance. For example, if the earlier flight is 30 minutes late and this causes the passenger to miss a connecting flight purchased under a separate ticket, the passenger will receive no compensation from either carrier.

Vouchers instead of cash only at the passenger’s choice

The regulation clarifies the rules for the common practice among airlines of offering passengers vouchers instead of cash for reimbursement or compensation. The new rules confirm the permissibility of this solution, but state that the carrier must offer a voucher equal to at least the amount of the reimbursement or compensation due, and more importantly, a voucher can be issued instead of cash only if the passenger consents. Thus the carrier cannot force the passenger to accept this form of “payment.” The passenger must explicitly consent to acceptance of a voucher, and all of the options—voucher, bank transfer, or other form of payment—should be presented equally, without default suggestions. The maximum validity of a voucher is 12 months. The voucher may be extended only once, for a further 12 months, but only if both parties agree. Moreover, if the voucher is not used, the carrier must refund the unused portion within 7 days.

Hand baggage included in the price

For the industry, this is a change in the sales model: airlines, agents and search engines must by default display the fare including hand baggage. They can still offer cheaper options without hand baggage, must it must be a voluntary choice. The passenger also has a right to carry onboard free of charge a personal item with maximum dimensions of 40×30×15 cm or fitting under the seat in front of them. And starting at the stage of the reservation, operators must also publish in one place the limits on the dimensions and weight of baggage, numerical restrictions, and fees for special items.

The amendment makes several changes concerning check-in and ticket handling. The carrier cannot deny boarding to passengers or charge them an extra fee for using their own printout version of a digitally issued boarding pass, if it is printed clearly and can be machine-read. Nor will it be permissible to charge an additional fee for issuance of a printed boarding pass if the passenger has already checked in.

There is also a new rule for correcting a passenger’s name on the ticket (due to a spelling mistake or an administrative change, such as a name change following marriage). Such a change must be allowed at least once free of charge, so long as it is requested at least 48 hours before scheduled departure and does not constitute transfer of the ticket to a different person.

You won’t be kicked off the return flight

A minor change, but welcome by passengers, concerns the consequences of failure to check in for the outbound flight when the passenger has purchased a roundtrip ticket. Under the new rules, a passenger cannot be denied boarding on a return flight due to “no-show” on the outbound flight. This is a situation which has come as a nasty shock to passengers, particularly on domestic routes where air travel competes with rail or road (e.g. on routes between Kraków and Warsaw) and circumstances force a sudden change of plans. It will also be prohibited to charge additional fees for this reason.

Airport contingency plans

An entirely new institution, and of great operational importance, is mandatory airport contingency plans. At EU airports handling a total of more than four million passengers a year (for at least three consecutive years), the airport manager must develop a plan, in coordination with the users of the airport (e.g. air carriers and groundhandling services), for operations in the event of mass cancellations or delays resulting in stranding of a considerable number of passengers. Execution of the airport contingency plan is to be overseen by the national enforcement body. There will be a milder obligation at smaller airports, which will have to make “all reasonable efforts” to coordinate airport users and inform passengers. Enacting an airport contingency plan will, in turn, open the way to prolonging certain deadlines for carriers to reimburse passengers (e.g. up to 30 calendar days).

Additionally, at all EU airports with commercial passenger traffic, arrangements must be made to ensure that drinking water and recharging stations for electronic devices are made available, free of charge, regardless of the time of day, flight or terminal. And at check-in desks and boarding gates, a uniform notice of passengers’ rights must be displayed, accompanied by a QR code for accessing the Commission’s mobile app on passenger rights.

Sales, information, and EU-wide notice of passengers’ rights

A large part of the changes are new informational obligations at the stage of ticket sales. These include:

• An express indication of whether the tickets are covered by a single air transport contract, or a combination of separate contracts (which is relevant if the passenger misses a connecting flight)
• Information on the reimbursement and complaint procedure
• Contact details for assistance in the event of a disruption
• The procedure for recovering items lift in the cabin.

This information must be provided to the passenger in a durable medium and an accessible format, and generally in the language of the air transport contract and also in a language used internationally.

A new feature is the voluntary Union Air Passenger Rights Label. The Commission has until 23 October 2027 to establish the design, content and template of the label. The label should help passengers quickly determine whether the offer is fully covered by the protection of Regulation (EC) 261/2004. Use of the label will remain voluntary unless the operating air carrier imposes this obligation on its intermediaries.

Not a revolution, but a thorough renovation—with a year to prepare

This year’s amendment is the first major overhaul of Regulation (EC) 261/2004 since it was adopted. The changes codify solutions arising under the case law of the Court of Justice, but also introduce a range of new obligations:

• Operational (airport contingency plans, tarmac delays, procedures for passengers with special needs)
• Commercial (hand baggage by default, voucher regime, free correction of passenger details, digital boarding passes)
• Informational (uniform messages at the stage of sales and following a flight disruption).

Fortunately, airlines, intermediaries and airport operators have over a year to wade through the maze of new regulations and make the necessary adjustments to their sales processes, policies, CRM systems, mobile apps, and contracts with commercial partners. The effective date of the amending regulation is in October 2026, but the changes will be applied starting from 23 October 2027.

Agnieszka Kubowicz, attorney-at-law, Maciej Zych, adwokat, Aviation practice, Dispute Resolution & Arbitration practice, Wardyński & Partners