Covid-19 vs Air Rights?

The EU is the only area in the world where citizens are protected by a full set of passengers’ rights – whereby they travel by air, rail, bus or coach. The focus of this article is to provide a brief overview of the “Air rights” that passengers have and to briefly clarify certain guidelines that the EU has established due to the outbreak of Covid-19.

o   “Air Rights” – have been established within the European Union, after the Regulation (EC) No 261/2004 (herein the “Regulation”) has been enforced on February 2004, setting common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay flights.

o   “Operating air carrier” = refers to the air company that decided to perform the flight, and not the company which leased out the aircraft and its crew. Flight is an air transport, performed by the air carrier which fixes itinerary and a journey involving an outward and a return flight cannot be regarded as a single flight as such[1].

The scope of application of the Regulation extents to passengers departing from any airport located in the territory of an EU Member State as well as any passengers departing from an airport located in a third country towards an airport situated at any EU Member State, unless any benefits or compensation or assistance have been provided in that third country, as such.

Events giving rights under the Regulation are:

  1. When passengers are denied boarding against their will[2]
  2. When flights are cancelled[3]
  3. When flights are delayed[4]

However, to be able to claim air rights, passengers:

a)      must have confirmed a reservation on the flight, and

b)      must have been present at the check-in counter, at the stipulated time which was indicated in advance and in writing. If no time had been specified by the air carrier, not later that 45 minutes before the published departure time.

General Rights:

In general, passengers have a right to receive information[5] with regards to flight, which is specified to them in a notice that is clear and visible (electronically or physically). In case of a delay, cancellation and denied boarding, there is an obligation to provide each passenger with a written notice setting out the rules for compensation and assistance. However, by taking into account the significance of delay as it can materialize at final destination, it is of vital importance to let passengers know of any delay at least three(3) hours before final destination[6]. Failure to do so, could enable passengers to claim compensation.

The right to reimbursement, re-routing or rebooking in the event of denied boarding or cancellation:

Upon denied boarding or cancellation of the flight or even delay (when it is at least 5 hours), the Regulation has established that the air carrier is obliged to offer the passengers the choice among[7]:

i)                    reimbursement (refund)

ii)                  re-routine at the earliest opportunity

iii)                re-routing at a later date at the passenger’s convenience, subject to availability of seats

When passengers book 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. However, if the 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. (i) The first option is to reimburse for the whole ticket (booking) or (ii) to be re-routed on another flight for the outbound flight

Right of care?

The right to care appears to be offered by an operating air carrier, in the event when passengers are affected by flight cancellation, delay and denied boarding. The Regulation essentially secures that passengers shall be offered free of charge meals and refreshments, hotel accommodation, in cases where it becomes necessary and any transportation costs[8]. The intention of the Regulation is to guarantee that the passengers, while waiting for their return flight or re-routing at a later convenient date, will have enough and adequate supplies and/or amenities. The extent of adequate care is assessed on a case-by-case basis by considering the needs of passengers and the principle of proportionality[9].

The right to care subsists only as long as passengers have to wait for a rerouting at the earliest convenience of the passenger. Therefore, when the passenger chooses re-routing at a later date at the passenger’s convenience, the right to care ends. It is worth mentioning that the same occurs when the passenger chooses reimbursement of the full cost of the ticket. In fact, there is an obligation for the air carriage to care even when the cancellation of a flight is caused by “extraordinary circumstances” which could not have been avoided even if all reasonable measures had been taken[10].

The European Court of Justice considered extraordinary circumstances to be “even a technical problem which has occurred unexpectedly, not attributable to poor maintenance and not detected during routine maintenance checks, which does not fall within the definition of ‘extraordinary circumstances’ when it is inherent in the normal exercise of the activity of the air carrier”[11].

Compensation may be due in the event of cancelation or denied boarding, under these conditions and unless the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. It must further be noted that the method of calculation varies according to the number of kilometres that each flight consists and may even be reduced by 50%[12]. It must be clearly understood that the Regulation makes no distinction as to whether the passengers concerned reach their destination by means of direct flight or an air journey with connecting flights. In both cases, the passengers are treated equally when calculating the amount of compensation and in case of connecting flights, the amount of compensation is determined on the radial distance that a direct flight would cover between the departure airport and the arrival airport[13].

The Covid-19 outbreak: “extraordinary circumstance”

With outbreaks of the global pandemic, Covid-19 has affected many sectors which are vital to the economy one of them being also the transportation sector. The European Union has issued a Commission Notice with regards to the EU passengers’ rights regulation in the context of the developing situation of Covid-19[14]. Within those guidelines it was not assessed that the situation on passengers’ rights may be varied by the national rules of each Member State, as there may be national rules creating an obligation to treat passengers differently (for example, some national rules refund passengers or issue vouchers). However, what has become obvious is that although the Regulation contains information on the rights available to passengers, yet it lacks clear provisions on travel disruptions. Nonetheless, rights to compensation in case of cancellation are linked to the carrier failing to give notice sufficiently in advance, therefore providing some for of guidance in view of the pandemic.

Right to reimbursement or re-routing?

With regards to the choice of re-routing, the air carriers may find it impossible to re-route passengers to their intended destination within a short amount of time. The earliest opportunity to re-routing may, under the circumstances of the Covid-19 outbreak, imply considerable delay. The same may apply to the availability of concrete information of such “opportunity”, given the high level of uncertainty surrounding air traveling. Reimbursement of ticket price or re-routing at a later date may therefore be more preferable for passengers. Whether or not reimbursement will be offered depends on the type of ticket booked, subject to the carrier’s terms and conditions.

By considering the provision of the Regulation in light of Covid-19, it is expected that passengers should be informed about delays and/or uncertainties linked to their choice of re-routing instead of reimbursement. If, a passenger chooses re-routing at the earliest opportunity, the air 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.

In addition, the Commission has adopted the position that, where the public authorities take measures to contain and/or prevent the spread of the pandemic Covid-19, such measures are by their very nature not within the ambit of control of the activity by air carriers. Therefore, since this situation is caused by “extraordinary circumstances”, which could not have been avoided by taking all reasonable measures, then the right for compensation is waived by virtue of the Regulation.

“An operating air carrier shall not be obliged to pay compensation, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”[15].

Thus, the condition seems to be satisfied, where public authorities either prohibit certain flights or ban the movement of people in a way that completely precludes operation of flights, and thus excluding compensation liability of any air carrier. Another possibility to waive the right to compensate, includes the flight is cancelled due to prohibition of movement, either in part or not.

Of course, a cancelation may be justified on grounds of “extraordinary circumstances”. Yet, in a situation when there is the possibility that no person is willing to risk and take the flight, therefore giving the potential right of cancelation to the carrier. It would be reasonable to expect some notice, not until the very last minute, so that appropriate measures to be taken by the carrier.

What remains clear is that 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.

[1] Case C-173/07, Emirates Airlines , Case C-532/17 Wirth

[2] Regulation (EC) No 261/2004, Article 4

[3] Regulation (EC) No 261/2004, Article 5

[4] Regulation (EC) No 261/2004, Article 6

[5] Regulation (EC) No 261/2004, Article 14

[6] C-402/07 and C-432/07 – Sturgeon e.a. ECLI:EU:C:2009 – Passengers who were delayed of at least three hours must be treated in the same way as passengers whose flights are cancelled

[7] Regulation (EC) No 261/2004, Article 8

[8] Regulation (EC) No 261/2004, Article 9

[9] Interpretative Guidelines On Regulation (EC) No261/2004 of the European Parliament and the Council

[10] Regulation (EC) No 261/2004, Article 5(1) and Article 7

[11] Case C-549/07 Wallentin-Hermann
“The collision of mobile boarding stairs with the aircraft was not considered to fall within the scope of extraordinary circumstances”, Case C-394/14 Siewert:

[12] Regulation (EC) No 261/2004, Article 7

[13] C-559/16 Bossen

[14] Commission Notice with regards to the EU passenger rights regulation in the context of the developing situation of Covid-19

[15] Regulation (EC) No 261/2004, Article 5(3)