With one door into the power chambers of the European Union (EU) effectively closed, the European Regions Airline Association (ERA) has decided to try to influence future legislation by potentially opening up two other doors.

Upset that the European Commission (EC) in 2003 refused to consider industry input as it ratified the Airline Passenger Bill of Rights, which promises passengers compensation if their flight is delayed or canceled, the ERA has been trying to get the EC to conduct economic impact analyses on those measures that target the transportation sector. So far, little or no luck.

At last year's General Assembly, the ERA decided to try to influence the EC's nuts-and-bolts operations so that the EU's administrative body would begin to assess the impact of its proposed legislation and regulations. It adopted what it termed the seven pillars of regulatory wisdom, which suggested such basic tests as: is the regulation is necessary; how much will it cost; and how will it be enforced (CRAN, Oct. 11, 2004).

In two critical pieces of legislation that the EC has drafted this year that affect airline operations, the EC has not completed any impact analyses, said Andrew Clarke, the ERA's director of air transport policy.

At the latest ERA General Assembly held earlier this month in Gothenburg, Sweden, the carriers decided to direct their pleas to the European Parliament and the Council of Transport Ministers. The ERA members called upon the two bodies to return legislative proposals to the EC if a measure failed to meet any one of four tests that the ERA outlined. The tests: if the proposal failed to identify or quantify the issue that it intends to fix; if non-legislative means could be used instead to achieve the same objective; if the proposal went beyond the minimum action needed to resolve the issue; and whether or not the proposed regulation included a regulatory impact assessment.

"Pressure is mounting on the European Commission to meet the standards they set for themselves," said Mike Ambrose, ERA's director general. He noted that British Prime Minister Tony Blair, the current EU president, is "committed to better governance. Air transport has been damaged by laws which have not been evaluated in a business-like way. This must stop."

The European Parliament is expected to act soon on legislation that would guarantee accommodations for passengers with disabilities. The measure departs from current customs in Europe and the United States by putting the responsibility for ensuring proper accommodations in the hands of the airports instead of the airlines.

"While we support the legislation in principle, we question shifting the responsibility to the airports," Clarke said. He noted the measure crafts an individualized level of service from the time a mobility-restricted passenger arrives at the airport until the passenger boards the plane. However, it is not clear if an airport can best handle the needs of a passenger who switches planes.

Clarke said the measure cleared a parliamentary committee on Oct. 11 and should be considered by the full Parliament in November. Neither the EC in proposing the measure nor the Parliament in considering it has commissioned any type of impact analysis of the changes.

The ERA and other European carriers were shut out by the EC in 2002 as it began to craft the legislation to compensate passengers for delayed flights. During the two years that the European Parliament debated the measure prior to its fall 2003 passage, the industry was shut out of the deliberations.

As the Parliament in 2003 debated the passenger bill of rights, Europe's airlines predicted that the carriers would have to pay out more than ?1.5 million, or US$1.9 million, to passengers for delayed or canceled flights. Clarke said based on the payments made since the law took effect in February, the payouts will match the estimate. The enforcement of the law varies by nation and airport, he said. Confusion continues with passengers seeking payments for flights delayed by weather or air traffic control hold-ups. Clarke said passengers continue to seek cash payments even after they have been compensated with meals and hotel rooms.

The EC reports that about 20 people per day are filing complaints with their national governments because of delayed or cancelled flights.

The ERA earlier this year charged the EC with maladministration of the law because of misleading statements included in promotional materials distributed to educate the European public about the law (RAN, May 9). The EC recently filed its reply to the charges with the European Ombudsman. No further details on the EC's reply were available at press time. Clarke said ERA has until November to respond to the EC's reply.

ERA, dissatisfied with a 2001 EC white paper outlining transportation goals and polices that it believes give railroads an unfair advantage, last year began a campaign to craft a new transportation policy. It was joined by Association of European Airlines. The EC has ignored the initiative.

Clarke said the ERA has learned that the transportation minister has begun to "secretly" review the white paper as the first step to craft a new one. In order to seek equal footing with the railroads in any future master plan, Clarke said the ERA has approached the environment and consumer policy ministers asking them to also review any transportation master plan. "We don't want it just to be reviewed by the transport board as it may come back just like the last one. We want other people to have an impact on it. It should take into account the economic and social value of air transport to the European regions," he said.

According to the EU's governing treaty, this cross-review should be routine, "but it is clear that it isn't."

The ERA also raised concerns about the inadequate funding of the European Aviation Safety Agency (EASA) - the relatively new EU equivalent of the U.S. Federation Aviation Administration (FAA). Because of cash flow problems, Clarke said the new agency has been hampered in taking the initiative and crafting its own recommendations.

In October, ERA and other industry representatives refused to be drawn into a detailed discussion on the actual fees and charges, Clarke said. If the payment method and bureaucratically burdensome regulations were simplified, many of EASA's cash-related difficulties would be overcome, Clarke said. After all, throwing money at a problem is an easy short-term fix but seldom tackles the root cause of the problem, he added.

Clarke said the ERA continues to advocate for the formation of the European version of the U.S. National Transportation Safety Board (NTSB) to impartially investigate transportation accidents. Accidents are still investigated by national governments.

In many European nations, the judiciary and law enforcement bodies handle the accident and incident investigations. Where fatalities or large-scale damages are involved, Clarke said it is inevitable that high-profile "criminal" investigations are undertaken, but these investigations actually do harm to safety initiatives - not just in those states but also in other European countries. That is because the threats of arrest, public searches and seizing of property restrict the flow of safety information so that it is almost useless to a safety regulator when the information is finally disclosed, he said.

In countries where legal investigations are more low-key, Clarke said the national air accident investigation bureaus take the lead with the sole objective of understanding "why" and making recommendations to prevent a similar occurrence.

>>Contact: Andrew Clarke, ERA, 44 (0) 1276 856495.<<