Much has already been written about the European Council’s proposed reforms to EU261. Unsurprisingly, the updates have centred on compensation thresholds, delay times, cabin baggage and passenger rights, the areas I would describe as the big ticket items.

But having now worked my way through the 147-page proposal, there was one provision that stood out for a different reason, because it may change when and how airlines have to justify their own decisions.

The proposed Article 7(5) would require airlines to respond to compensation requests within prescribed time limits. Where compensation is refused on the grounds of extraordinary circumstances, carriers would need to identify the specific circumstance relied upon and provide a clear and substantiated explanation of how the legal test is satisfied, including the direct causal link between the event and the disruption, and the reasonable measures taken to avoid the delay or cancellation.

Read alongside proposed Article 15a, which would require airlines and intermediaries to establish formal complaint-handling mechanisms, acknowledge complaints within seven working days and provide reasoned responses within prescribed deadlines, this feels like much more than a procedural tweak, and one that could have significant operational impact.

Taken together, the provisions appear to introduce a more structured and transparent claims-handling framework. They also create a potential escalation route where passengers believe an airline has failed to comply with its obligations.

The reforms also introduce a nine-month deadline for passengers to submit compensation requests to airlines. That is a notable departure from the current position, where the Regulation itself does not prescribe a uniform time limit for compensation claims and limitation periods are largely determined by national law. For airlines, this may reduce the volume of historic claims and some of the evidential difficulties that accompany them. However, the corresponding obligation to provide timely and substantiated responses means carriers may be expected to investigate and justify their decisions much earlier in the life of a potential claim.

For many airlines today, the detailed factual and technical analysis underpinning an extraordinary circumstances defence is developed as litigation progresses. Technical reports are reviewed, operational records are obtained, witness evidence is considered and, where necessary, expert input is sought.

The proposed reforms raise an obvious question about the timing of that type of work and whether it will now need to be done before proceedings are ever issued.

The proposal doesn’t provide clarity on this; there is no requirement to disclose all of the evidence supporting their position at the claims stage, but the recitals are also absent any guidance on what a clear and substantiated explanation may mean. We are potentially looking at the need for a firmer evidential foundation for decisions considerably earlier in the process.

If so, the implications extend well beyond the in-house legal departments.

Customer relations teams may need earlier access to operational information. Engineering, operations and legal teams may need to collaborate much sooner in the life of a claim. Claims-handling processes may need to be redesigned so that decisions can be properly explained and supported at the point compensation is refused, rather than months or years later during litigation.

From a regulatory and compliance perspective, the changes may be more significant than they first appear. Airlines could find themselves subject to new expectations around complaint handling, record keeping, audit trails and decision-making processes. The burden of demonstrating that required information has been provided to passengers would also rest with the carrier.

In practice, that may place greater emphasis on preserving and organising operational information at an early stage so that decisions can be explained and supported if subsequently challenged through the new complaint procedures.

This will inevitably create a balancing exercise.

Providing passengers with meaningful explanations is likely to improve transparency and may even resolve some disputes earlier. Equally, airlines will need to consider how to produce sufficiently robust responses without significantly increasing the cost and complexity of handling every extraordinary circumstances claim.

It also raises practical questions that the proposal does not fully answer around the sufficiency of detail required. In addition, airlines will need to consider how much information they are expected to provide at the pre-litigation stage and what happens if operational information develops after the initial decision has been communicated?

These are not headline grabbing issues, but they could have a very real impact on how airlines organise their claims-handling functions if the reforms are adopted.

For me, this is one of the more interesting aspects of the proposal. The biggest operational changes may not come from who is entitled to compensation, but from when airlines are expected to explain, and evidence, the decisions they make.