Recent Developments

The Right to Buy and Fly

Heathrow LHR T4 143

In recent years, a number of airlines have adopted the practice of allowing passengers to take only one item of hand luggage into the aircraft cabin free of charge.  Contrary to previous practice, these airlines chose to consider airport shopping as part of that single piece of permitted hand luggage, with the result that many passengers were initially caught unawares and fined for carrying their airport shopping as an extra piece of hand luggage, and later passengers were simply deterred from shopping at airports.

Confusion has been rife amongst passengers, as the practice is not universal – it is only applied by some airlines and some of these apply it sporadically, with it being enforced at some airports and not at others. The inevitable uncertainty amongst passengers has had a knock on effect on sales at UK airports and on vital airport revenues derived from retail activity.

Support from the European Parliament’s Transport Committee for clear protection for passengers on this issue resulted in a vote of the European Parliament in February 2014 to include an amendment to this effect as part of the revision of Regulation (EC) No. 261/2004 on air passenger rights (“Air Passenger Rights Regulation”). The intention is to include a definition of the basic level of service to be included in all tickets, including the right to take airport purchases onboard in addition to the prescribed cabin baggage amount. However, although the  vote by the European Parliament sends a strong political statement calling for airport shopping to be carried  on board at no additional cost, in addition to permitted hand luggage, it is only part of the overall political process. Scrutiny of the wide range of proposals for amending the Air Passenger Rights Regulations by the Working Group of the Council of Ministers is currently under way.

Due to external political factors, the Council of Ministers was unable to reach a political agreement on the revision of the Air Passenger Rights Regulations during 2014. However, when Latvia assumed Presidency of the EU on 1 January 2015, an announcement was made almost immediately that progress would be sought in the Council Working Group on Air Passengers Rights Regulations, with the goal of reaching an agreed text at Council level before the end of the Latvian Presidency term.

Negotiations resumed in the Council Working Group on Monday 19th January 2015, at which the Latvian Presidency tabled a compromise text on the issue of hand luggage and personal effects, including airport shopping, and an alternative text was also tabled by the European Commission.

Both options support the ETRC/UKTRF position as they offer clarity to passengers whilst also supporting the interests of the European travel retail industry on this issue. Unfortunately, further discussions on the revision of the Air Passenger Rights Regulation in the Council Working Group meeting in February failed to reach a conclusion on the hand baggage proposals, although we understand that it has now been agreed that the carriage of airport shopping will be secured in a final text, but exactly what that text will be remains to be determined.

Notwithstanding this additional delay, a recent ruling of the European Court of Justice (ECJ) in relation to Vueling Airlines SA has given a significant boost to the industry’s case. The decision confirmed that, while airlines have the right to charge an additional fee for checked-in luggage, they do not have commercial freedom to charge for hand baggage, on condition that it meets reasonable requirements in terms of its weight and dimensions and complies with applicable security requirements.  This ECJ case has established that hand baggage is a “necessary item” for the carriage of passengers which cannot be subject to a price supplement and the final Air Passenger Rights legislation will be required to reflect this entitlement.