In an effort to mitigate the economic impact of the COVID-19 pandemic, the European Commission has published guidelines on the application of EU Passenger Rights across the EU (the “Guidelines”).
This measure by the European Commission follows the decision by National governments to introduce different measures, including travel restrictions and border controls.
Through the Guidelines, the European Commission seek to provide legal certainty on EU Passenger Rights, where flights, amongst other forms of transport, have been cancelled by the carrier.
In cases where the passengers themselves decide to cancel their journeys, reimbursement of the ticket will depend on its type, some carriers may offer vouchers for subsequent use, or relax their policy in terms of changes to bookings.
Air Passenger Rights are presently governed by (EC) No.261/2004 of the European Parliament and of the Council dated 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 (the “Regulation”).
Reimbursement and rerouting
Article 8 of the Regulation makes specific provision in the case of cancellation or certain delays, for passengers to be offered reimbursement or rerouting.
With regard to rerouting, this would be at the “earliest opportunity” or “at a later date” at the passenger’s convenience.
In the current circumstances, where National governments have imposed various travel restrictions and border controls, rerouting at the earliest opportunity is likely to prove impossible, meaning that assuming the passenger does not wish to reroute at a later date, which is convenient to them, they will be entitled to a reimbursement of the ticket price.
Right to care
Article 9 of the Regulation, provides that passengers affected by a flight cancellation must also be offered “care” by the operating carrier, free of charge, consisting of meals, refreshments, hotels accommodation (if necessary) and transport to and from the place of accommodation.
Where a passenger opts for reimbursement, or rerouting at a later date, of the passengers choosing, the right to care ends at that point.
The Guidelines currently stipulate that a carrier is not exempted from its obligations under Article 9 as a consequence of the current COVID-19 pandemic.
Right to compensation
Article 5(1) and Article 7 of the Regulation, provide for fixed sums of compensation to be paid to passengers in certain circumstances where their flight has been cancelled, providing the cancellation was not 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 (Article 5(3)).
The Guidelines confirm that the exception to paying compensation outlined under Article 5(3) should be considered fulfilled where a public authority either outright prohibits certain flights from being operated, or ban the movement of persons in a manner that prevents, the flight in question being operated.
The Guidelines go on to stipulate that “this condition may also be fulfilled where the flight cancellation occurs in circumstances where the corresponding movement of passengers is not entirely prohibited but limited to persons benefiting from derogations (for example nationals or residents of the state concerned)”.
Furthermore the Guidelines provide that “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 “caused” by extraordinary circumstances”.
The Guidelines stipulate that the aforementioned 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).
It should be remembered that it will still be the responsibility of the carrier to show that the flight cancellation was caused by “extraordinary circumstances”, they are therefore advised to document the decision making process behind the cancellation of each individual flight, to be supported with documentary evidence, if at all possible.
It is also worth pointing out that where a passenger chooses to take an outbound flight, knowing of the existence of the COVID-19 pandemic and the risk of disruption to air travel, resulting in the possible cancellation of their inbound flight, they should not expect the carrier to bear the cost of providing care pursuant to Article 9, or compensation pursuant to Article 5(1) and Article 7.
A link to the European Commission press release and the Guidelines appear below.
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