EU passenger rights in the context of Covid-19

Posted By: on 28th April 2020 | Category: Commercial Dispute Resolution

During these unprecedented and uncertain times, the travel and holiday industry have suffered as well as passengers who were or are about to travel. It is the passengers whom this article is directed towards as the situation is stressful for many of them whose travel arrangements have been cancelled and/or no longer wish to travel or are not allowed to.

The European Commission has clarified the rights of passengers when travelling [this article covers air travel but, the Commission Notice 2020/C 89 I/01 covers bus, coach and ship as well].

These guidelines cover [but are not to replace] the following passenger rights legislation:

Regulation (EC) No 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 295/91

The aim of Regulation (EC) No 261/2004 is to ensure a high level of protection for passengers by setting common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

Situations where passengers cannot travel or want to cancel a trip

The EU’s passenger rights regulations do not address situations where passengers cannot travel or want to cancel a trip on their own initiative. Whether or not a passenger is reimbursed in such cases depends on the type of ticket (reimbursable, possibility to rebook) as specified in the carrier’s terms & conditions.

It appears that various carriers are offering vouchers to passengers, who do not want to (or are not authorized to) travel any more as a result of the outbreak of Covid-19. Passengers can use these vouchers for another trip with the same carrier within a timeframe established by the carrier.
This situation has to be distinguished from the situation where the carrier cancels the journey and offers only a voucher instead of the choice between reimbursement and re-routing. If the carrier proposes a voucher, this offer cannot affect the passenger’s right to opt for reimbursement instead.

Specific national rules in the context of the Covid-19 outbreak

In some cases, specific national rules have been adopted in the context of the Covid-19 outbreak, which create the obligation for carriers to refund passengers or issue a voucher to passengers in case the passenger could not take a flight that has been operated.
Such national measures do not fall under the scope of the EU passenger rights regulations. They are not addressed in these guidelines, which deal only with the interpretation of the rules on passenger rights adopted by the Union.

Information to passengers

Apart from the rules regarding information on the rights available, Regulation (EC) No 261/2004 does not contain specific provisions on information on travel disruptions. However, rights to compensation in case of cancellation are linked to the carrier failing to give notice sufficiently in advance. This aspect is thus covered by the considerations below on rights to compensation.

Right to reimbursement or re-routing

In the case of a flight cancellation by the airlines (no matter what the cause is), Article 5 obliges the operating air carrier to offer the passengers the choice among:

a) Reimbursement (refund); or

b) Re-routing at the earliest opportunity; or

c) Re-routing at a later date at the passenger’s convenience

Regarding reimbursement, in cases where the passenger books the outbound flight and the return flight separately and the outbound flight is cancelled, the passenger is only entitled to reimbursement of the cancelled flight, i.e. here the outbound flight.

However, if the outbound flight and the return flight are part of the same booking, even if operated by different air carriers, passengers should be offered two options if the outbound flight is cancelled:

  • to be reimbursed for the whole ticket (i.e. both flights): or
  • to be re-routed on another flight for the outbound flight.

As regards re-routing, and as explained above, ‘the earliest opportunity’ may under the circumstances of the Covid-19 outbreak 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.

The application of Article 5 of Regulation (EC) No 261/2004 may have to take into consideration these circumstances. However, at any rate:

First, passengers should be informed about delays and/or uncertainties linked to them choosing re-routing instead of reimbursement.

Second, should a passenger choose nonetheless re-routing at the earliest opportunity, the carrier should be considered to have fulfilled its information obligation towards the passenger if it communicated on its own initiative, as soon as possible and in good time, the flight available for rerouting.

Right to compensation

Regulation 261/2004 also provides for fixed sum compensations in some circumstances. This does not apply to cancellations made more than 14 days in advance or where the cancellation is caused by ’extraordinary circumstances’ that could not have been avoided even if all reasonable measures had been taken. For details, see Article 5(1) and Article 7 of the Regulation.

The Commission considers that, where public authorities take measures intended to contain the Covid-19 pandemic, such measures are by their nature and origin not inherent in the normal exercise of the activity of carriers and are outside their actual control.

Article 5(3) waives the right to compensation on condition that the cancellation in question ‘is caused’ by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.
This condition should be considered fulfilled, where public authorities either outright prohibit certain flights or ban the movement of persons in a manner that precludes, de facto, the flight in question from flying.

This condition may also be fulfilled, where the flight cancellation occurs in circumstances where the corresponding movement of persons is not entirely prohibited, but limited to persons benefiting from derogations (for example nationals or residents of the state concerned).

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 a carrier 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 organizational measures to be taken, including in terms of care for passengers owed by the carrier. 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.

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.

The above considerations are not and cannot be exhaustive in that other specific circumstances in relation to Covid-19 may also fall under the ambit of Article 5(3).

Where does that leave passengers?

The majority of issues raised by passengers would appear to be upon the issue of reimbursement, as many flights have been cancelled due to the Covid-19 outbreak.

However, it has become apparent that many airlines and travel operators are refusing to reimburse passengers, even though the passengers are legally entitled to a refund as per the Regulations and Guidance set out above.
Whilst it may be the case that airlines and travel operators would suffer financially, possibly collapse, if they reimbursed all of the passengers, they have a legal duty to do so. Government intervention is awaited but, in the meantime if passengers are not reimbursed they do have the right to pursue legal action. Whether it is cost-effective to do so is another matter…

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