Air passenger rights in the context of the Covid-19 pandemic

The EU Commission published a notice containing Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with COVID-19. By these guidelines, the objective of the EU Commission is to clarify the rights of passengers when travelling by air, rail, bus and coach or ship, as well as the corresponding obligations for carriers. This news focuses on air transport and the interpretation of Regulation 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/912.

What is the obligation for airlines regarding information to passengers?

No provision in Regulation 261/2004 concerns information on travel disruptions. Under Regulation 261/2004, the only obligation for airlines is to inform air passengers regarding their rights in accordance with Article 14.

What happens in the case of situations where passengers cannot travel or want to cancel a trip?

Regulation 261/2004 does not address the situation where passengers cannot travel or want to cancel a trip on their own initiative. Passengers would be reimbursed in such cases depending on the type of ticket (reimbursable, possibility to rebook) as specified in the carrier’s terms and conditions. Passengers can receive vouchers from certain carriers if they don’t want to (or are not authorised to) travel any more as a result of the pandemic of COVID-19. Each carrier determines the conditions of the use of this voucher.

What happens in the case of cancellation of flights by airlines?

Under Article 5 of Regulation 261/2004, a passenger can choose between reimbursement (refund), re-routing at the earliest opportunity or re-routing at a later date at the passenger’s convenience in the case of a flight cancellation.

Regarding the reimbursement, passengers must have the choice between the acceptation of a voucher or the right for reimbursement.

The EU Commission clarifies “the earliest opportunity” in the context of COVID-19 pandemic. This could “imply considerable delay, and the same may apply to the availability of concrete information on such “opportunity” given the high level of uncertainty affecting air traffic.”

Airlines have the obligation to inform air passengers about delays and/or uncertainties linked to them choosing re-routing instead of reimbursement.

Is the obligation of care for airlines subsisting in the case of cancellation of flights due to COVID-19 pandemic?

The EU Commission highlights that the obligation of care subsists when the cancellation of a flight is caused by extraordinary circumstances. However, the right to care is only applicable to air passengers who chose the rerouting at the earliest convenience and not in the case of reimbursement (refund) or re-routing at a later date at the passenger’s convenience in the case of a flight cancellation.

The EU Commission states that Regulation 261/2004 does not recognize a separate category of ‘particularly extraordinary’ events and confirms the obligation to care in the context of COVID-19 pandemic. The EU Commission justifies its position highlighting the vulnerability of passengers in such circumstances and events.

Is the COVID-19 pandemic considering as an extraordinary circumstance?

The right to compensation under Regulation 261/2004 does not apply to cancellation made more than 14 days in advance or when the cancellation is caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.

The EU Commission clarifies this issue and considers that measures taken by public authorities to contain the COVID-19 pandemic are by their nature and origin not inherent in the normal exercise of the activity of airlines and are outside their actual control.

According to the EU Commission, this non-exhaustive list of situations should be considered as extraordinary circumstances:

• Where public authorities either outright prohibit certain flights or ban the movement of persons in a manner that excludes, de facto, the flight in question to be operated.
• Where the flight cancellation occurs in circumstances where the corresponding movement of persons is not entirely prohibited but limited to persons benefitting from derogations (for example nationals or residents of the state concerned)
• Where the airline decides to cancel a flight and shows that this decision was justified on grounds of protecting the health of the crew, such cancellation should also be considered as “caused” by extraordinary circumstances.
• Where no such person would take a given flight, the latter would remain empty if not cancelled. In such situations, it may be legitimate for the airline not to wait until very late, but to cancel the flight in good time (and even without being certain about the rights of the various passengers to travel at all), in order for appropriate organisational measures to be taken, including in terms of care for passengers owed by the airline. In cases of the kind, and depending on the circumstances, a cancellation may still be viewed as “caused” by the measure taken by the public authorities. Again, depending on the circumstances, this may also be the case in respect of flights in the direction opposite to the flights directly concerned by the ban on the movement of persons.

How airlines reacted to these guidelines?

Airlines associations, IATA and A4E, expressed their disappointment regarding the EU Commission Guidelines on Regulation 261/2004. The position of the EU Commission does not reflect the requests of airlines of temporary alleviation:

• Recognition that no compensation is due in the event of cancellations due to COVID-19.
• A limitation on the extensive obligations to provide care and assistance in the event of cancellations due to COVID-19
• Flexibility to allow airlines to offer rebooking or vouchers in place of refunds in the event of cancellations due to the pandemic.