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Regulation (EC) No 261/2004 has been the cornerstone of air passenger rights within the European Union for two decades, setting out standardized compensation and assistance rules for denied boarding, flight cancellations, and long delays. While being crucial for consumer protection, the Regulation has been a perennial source of legal disputes and industry friction, often criticized for its ambiguity and the resulting disproportionate financial burden on air carriers. The airline industry鈥檚 repulsion, as Bernard notes, is visceral, and their relentless lobbying has been dedicated to dismantling the very protections the Regulation was designed to provide.
The Court of Justice of the European Union (CJEU), rather than settling the matter, has been drawn into this conflict. As Dempsey and Johansson have critically observed, the assertive role of the CJEU in interpreting the Regulation has often come at the expense of global legal uniformity, with Brussels鈥� 鈥渢riumphant assertion of power鈥� creating a distinct and often contentious body of law which is unpredictable and onerous. This judicial activism, coupled with the Regulation鈥檚 inherent ambiguities, has subjected it to persistent criticism and vigorous lobbying from the airline industry seeking its dilution. It is, therefore, not surprising that various calls for revisions of the Regulation have emerged on the EU agenda.
The 2025 legislative proposal to revise the Regulation emerges from this fraught context, promising greater clarity and consistency. However, the 2025 proposal seems to be just another spin of the first proposed revision of 2013, which remains unadopted. The increased threshold for damages seems to confirm that the legislative process is trapped in a cycle where passenger interests are perpetually negotiated downward. The sheer longevity of this reform process invites scepticism, framing the new proposal as a d茅j脿 vu.
This article examines the proposal鈥檚 pivotal measures, juxtaposing the positions of the Council of the European Union (hereinafter the Council) and the European Parliament (hereinafter the Parliament), arguing that it represents not a final resolution, but the latest iteration in a cyclical struggle between competing interests, potentially inviting further legal contestation and a potentially significant regression for passengers.

2. Standardising Care and Assistance: A Step Towards Predictability

A central objective of the 2025 proposal is to standardise the right to assistance during delays, an area previously governed by vague stipulations. The Council鈥檚 text introduces granular timelines, mandating that refreshments be offered every two hours and meals after three hours, then every five hours. Provisions for communication, namely two phone calls or Internet access after two hours and accommodation for necessary overnight stays remain unchanged. Crucially, the proposal codifies CJEU jurisprudence by explicitly granting care and assistance to passengers who miss connecting flights under a single contract.
A significant innovation is the introduction of a Union-wide tarmac delay rule. Passengers would be entitled to minimum assistance, including adequate cooling or heating and free water, with a guaranteed right to disembark after three hours. However, the absence of a minimum threshold for snacks and the non-exhaustive nature of the assistance list may leave room for variable implementation.

3. Compensation and Re-routing: A Calculated Rollback of Rights?

The most contentious aspect of the Council鈥檚 position concerns the revision of compensation thresholds and amounts. For short and medium-haul flights (鈮�3,500 km), the threshold for delay compensation would increase from three to four hours; for long-haul flights (>3,500 km), it would be set at six hours 鈥� which is shorter than the proposal of 5-9-12 hours from the European Commission (hereinafter the Commission). In the meantime, compensation amounts would be reduced from 鈧�400 to 鈧�300 and from 鈧�600 to 鈧�500, respectively. The increase of delay thresholds and the simultaneous reduction of compensation amounts result in a double blow to passengers, intended to shrink airline liability. Moreover, the proposal includes a derogation for outermost regions whereby the current compensation amounts would apply. This derogation adds a new layer of complexity to a system the proposal claims to simplify, which may trigger further administrative confusion.
The rationale for these changes 鈥� that the Regulation has failed to improve on-time performance 鈥� might in fact be ill-founded. Indeed, this statement seems to be in conflict with empirical data, which indicates that the majority of arrival delays fall between two and four hours. It is claimed that current thresholds encourage cancellations over schedule recovery, which may justify the change, but critics argue that raising thresholds risks a dilution of consumer protection, potentially excluding up to 60% of currently eligible passengers from compensation. This move is seen as a major loss for passengers, with the new delay threshold still incentivising airlines to cancel flights in order to minimise the 鈥榢nock-on鈥� effects on subsequent services rather than trying to resolve the cause of the delay. Passengers will be worse-off while on-time performance might remain unchanged.
The changes to re-routing and compensation for downgrading follow the same pattern. Compensation for downgrading has been altered to represent a percentage of the ticket price 鈥� 40% for short/medium-haul and 75% for long-haul 鈥� adding another layer of calculation complexity. The right to re-routing is expanded in the Council鈥檚 proposal, allowing travel on another carrier or mode of transport. Capping self-re-routing reimbursement at 400% of the ticket price leaves passengers financially vulnerable during high-demand time periods, effectively penalizing them while reducing the airlines鈥� obligations to provide care.

4. Enforcement and 鈥楨xtraordinary Circumstances鈥�: The Unfinished Agenda

A missed opportunity in the Council鈥檚 position is the failure to harmonise enforcement. As highlighted by the European Court of Auditors, sanctions for non-compliance 鈥渧ary greatly among Member States,鈥� ranging from 鈧�50 to 鈧�250,000 per passenger, thereby creating a patchwork of deterrents. The proposal does not mandate harmonised fines nor make the decisions of National Enforcement Bodies legally binding, thereby perpetuating a systemic weakness in the Regulation鈥檚 application.
In a bid for legal certainty, the proposal defines 鈥榚xtraordinary circumstances鈥� and provides a non-exhaustive list in an annex, including events like extreme weather, political instability, and air traffic control strikes, keeping the status quo. While this provides clearer guidelines, the Council鈥檚 text appears to deliberately recalibrate the balance established by the CJEU. It introduces caveats that exempt airlines from certain staff strikes. Such as strikes concerning issues like retirement age that require public authority intervention, for unexpected technical issues, or sudden absence of essential crew 鈥� categories that the CJEU has previously viewed as within an airline鈥檚 operational control. This open-ended list may not resolve the systemic issue of airlines broadly interpreting exemptions, potentially leading to continued litigation over its scope or starting a new cycle of preliminary requests for interpretations with the CJEU acting yet again as a quasi-legislator.

5. The European Parliament鈥檚 Counter-Proposal: A Strengthened Stance

In contrast, the European Parliament's Transport and Tourism Committee (TRAN) has advocated for a strengthening of passenger rights. Its alternative text retains the current three-hour delay threshold, proposes an inflation-linked increase in compensation, and mandates a standardized, pre-filled claim form to streamline the process 鈥� a direct response to the Court of Auditors鈥� recommendations. Airlines will be obliged to provide this form automatically or to ensure that it is made readily available within 48 hours of disruption.
The Parliament seeks a more robust regulatory framework. It proposes a defined, closed list of extraordinary circumstances, updatable via delegated acts. However, introducing new concepts into the Regulation through delegated acts is likely to provide a foundation for the next decades of CJEU jurisprudence, as there are over 80 judgments by the CJEU reported relating to the Regulation 261, which might be the record for a single piece of legislation.
Another issue the Parliament decided to tackle relates to a guaranteed right for passengers to carry one personal item and one small hand luggage free of charge, with a combined maximum dimension of 100 cm and a weight limit of 7 kg. Adding a clear provision on carry-on luggage is not only welcomed, but might also avoid airlines facing fines for their hand luggage and seating policies. Another important addition would be a guaranteed free seating for children under 14 with accompanying adults as well as a prohibition on surcharges for minor name corrections. The Parliament also seeks to ban 鈥榥o-show鈥� clauses practice, which has been regarded as unfair contract terms in some national judgments, for example, in Spain.
The airline industry warns that the Parliament鈥檚 position could exacerbate the EU's competitiveness deficit through increased costs, highlighting the core tension between consumer protection and industry economic interests.

6. Omissions

Despite the possibilities of creating new conflicts or exacerbating existing ones, the proposed revision also overlooks some critical issues. For example, neither the Council nor the Parliament position provides a viable EU-wide solution for passenger protection in the event of airline bankruptcies, leaving affected travellers to disparate national laws.

7. Conclusion

The proposed 2025 revision of Regulation 261 was a pivotal opportunity to consolidate two decades of legal development into a coherent, enforceable, and fair framework. Yet, the process reveals a familiar pattern. The Council鈥檚 proposal, prioritising airline operational concerns, risks undermining the Regulation鈥檚 core protective function by diluting compensation and creating new legal ambiguities. The Parliament鈥檚 stance, while robustly pro-consumer, does not resolve any questions about economic feasibility. Even if they fail to reach a consensus, nothing excludes that the revision process will be abandoned.
The compromise that emerges will likely be a hybrid, but the underlying dynamic ensures that the CJEU鈥檚 role remains central. The process of reform seems to be stuck in an eternal loop of judicial interpretation, industrial backlash, legislative proposal, and political stalemate.
Regardless of the final compromise, the revision is set to fail in its most critical task: eliminating legal ambiguity. The Council鈥檚 insistence on a non-exhaustive list of exemptions, coupled with the introduction of new, undefined concepts, ensures that the CJEU will remain the ultimate arbiter. By attempting to 鈥渂end鈥� past rulings, both the Commission and Council may have ensured that, for air passenger rights in the EU, the refrain remains: here we go again.

Delphine Defossez, Phd, Senior Lecturer at Northumbria University, Law School.

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