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There is no question that COVID-19 outbreak has hit the aviation industry the hardest amongst other industries due to strict measures enforced by public authorities such as travel restrictions, lockdowns and border controls. These measures obviously have dragged the industry into a tremendous freeze and a rapid downfall. Although, the economic impact on the aviation industry has manifested itself, the query of what the air carriers would have to face in terms of passenger claims is still obscure. To enlighten the obscurity and to mitigate the economic impacts of the COVID-19, European Commission has published “Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19” (“Guideline”) on March 18, 2020.
The Guideline essentially aims to create a coherent system of rules to assist the passengers, industry and national authorities overall under the unprecedented circumstances across the European Union (“EU”). To do so, the Guideline is drafted to cover the rights of passengers travelling by air, rail, ship or bus/coach, maritime and inland waterways, as well as the corresponding obligations for carriers.
From an aviation industry focused perspective, by referencing the Regulation (EC) numbered 261/2004 (“Regulation”), the Guideline specifically applies to cancellation and delay in flights which are seen as the dark spots for the air carriers concerning potential burdens. Hence, the Guideline addresses the passenger rights which the air carriers are obliged to grant.
Information to Passengers
Initially, the passenger must be informed as to the right of compensation. Even though, there is no specific provision introduced regarding travel disruptions in scope of the Regulation, the compensation claims are built on the ground that a adequate notice is made by the carrier to the passengers. The information obligation of the air carriers is considered as a pre-condition for air carriers to employ any rights provided within scope of the Guideline. On another note, the air carriers are obligated to provide the passenger with the choice of re-routing at first instead of reimbursement in case of any delays regarding the flights. In order to comply with the obligations on the notice, the air carrier should communicate with the passenger on its own initiative as soon as possible, and in good time, as the flight available for rerouting.
Right to Reimbursement and Re-Route
Apart from the primary information obligation, in the event of cancellation of flights by airlines, the operating air carriers are obligated to offer the following alternatives to passengers regardless of the cause of cancellation;
i) Reimbursement(refund), or;
ii)Re-routing at the earliest opportunity, or;
iii)Re-routing at a later date at the passenger’s convenience”.
Reimbursement right of passengers are referred in two differential cases, one is the same booking comprising of the outbound and return flight and the other is the separate flights of the same. To clarify, in the first case where the passenger books the outbound flight and return flight under the same booking and when the outbound flight is cancelled, the Guideline enables the passengers to choose between two offers, even if these outbound and return flights are operated by distinct air carriers. The offers are i) to be reimbursed for the whole ticket (i.e. both flights) or; ii) to be re-routed on another flight for the outbound flight. However, in the second case where the flights could be separated, in other words, the passenger books the outbound and return flights separately, the passenger is deemed entitled to solely the reimbursement of the cancelled flight.
As for the re-routing right of the passengers, the Guideline leaves a space by underlining “the earliest opportunity” in the wake of COVID-19 pandemic. This “earliest opportunity” expression implies “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”.
Due to current circumstances driven by the COVID-19 pandemic, the right to choose to re-route at the earliest opportunity is clearly impinged. Admittedly, the outbreak is restricted the air carriers from conducting the re-routing of a passenger in a short time period in case preferred by a passenger. In further, it is not certain whether the re-routing would be applicable in the face of travel restrictions. The earliest opportunity for re-routing should be evaluated on a case by case basis owing that the re-routing right may be subject to uncertainties and delays due to the pandemic. With this understanding, the choices of reimbursement or re-routing at a later stage could be regarded as more preferable and applicable as for both the passenger and the air carrier in question.
Right to Care
The passengers in the event of cancellation of flights would be entitled to request free of charge services from the air carriers. These services are provided within the Guideline by referencing the respective provisions of the Regulation in the same line with the other rights specified thereof. In this sense, as per the reference to the Article 9 of the Regulation, the passengers shall be offered the i)meals and refreshments in a reasonable relation to the waiting time; ii) hotel accommodation in cases where a stay of one or more nights becomes necessary, or where a stay additional to that intended by the passenger becomes necessary and iii) transport between the airport and place of accommodation (hotel or other) free of charge.
As can be seen, the Guideline does not designate certain and monolithic application with regards to the right to care, rather it makes reference to the “waiting time” experienced by the passenger which to be assessed on a case by case basis and applied proportionally. Significantly, furtherance to the referred case by case analysis, the Guideline underlines that the reimbursement of the full cost of the ticket or re-routing at a later date would terminate the right to care in case selected by the passenger in question. In the same vein, the right to care is applicable exclusively as long as the passengers are kept waiting for re-routing at earliest convenience in this respect. The right to care should also be provided by the air carriers to the passengers regardless of the price of the ticket or the length of the waiting time. However as pointed out, the right to care would be applied proportionally by the air carriers.
The right to care of passengers would not be affected from extraordinary circumstances in the event of any cancellation of a flight in accordance with the Article 5 of the Regulation. The extraordinary circumstances given in this article purports the circumstances which could not have been avoided even though all reasonable measures are taken by the air carrier. The definition of such circumstances is made extensively and no particular reference or explanation is indicated under the Regulation. Therefore, the Guideline in light of the Regulation takes COVID-19 outbreak into consideration as an “extraordinary circumstance” as for both passengers and air carriers concerning respectively due to health care and operational issues. That is to say, as per the Guideline, even though COVID-19 is regarded as an extraordinary circumstance, this would not release the air carriers from their obligations related to the right to care under the Regulation. Lastly to put forward herein the scope of the right care, the air carriers are deemed liable to provide two telephone calls, telex or fax messages, or e-mails to the passengers in this context.
Right to Compensation
Under certain circumstances, the Regulation enables the passengers to claim for compensation. The compensation is estimated in compliance with a determination on the last destination at where the cancelation would delay the passenger’s arrival after the scheduled time. The compensation claims could not be applicable in case the cancellation is made more than 14 days in advance; or the cancellation is caused by an extraordinary circumstances which could not have been avoided even though all reasonable measures are taken by the air carrier. By reemphasizing, the COVID-19 as an extraordinary circumstance, the Guideline referred the measures taken due to pandemic that are not by their nature and within the control of the affected parties, passengers and air carriers. Either the passenger or the air carrier may not be willing to or capable of realizing the intended flight. The reflections of this may be observed from several aspects such as a restriction enforced by government on air carriers or the rapid response of the passenger in order to protect themselves from any possible infection since those causes are not indicated exhaustive. Therefore, as being considered an extraordinary circumstance, COVID-19 would waive the passengers’ right to claim for compensation under the Article 7 of the Regulation.
Cancellation by the Passenger
The regulations drawn by EU do not pinpoint the passengers who are not capable of traveling or are not willing to. In such cases, the reimbursement right depends on the type of the ticket purchased by the passenger which generally indicates as if the ticket is reimbursable or enables to rebook another flight. To enlighten the queries on that topic, the Guideline has put spotlight on cases where the passengers are less reluctant to travel due to COVID-19 pandemic and added that the air carrier may offer vouchers to the passenger in response to the demand directed in this respect. To do so, the passengers may benefit from the vouchers provided for any other travel to be conducted by the same air carrier limited to the time period determined by the air carrier itself. Nonetheless, this option is indeed distinguishable from the cases where the travel is cancelled by the air carrier. To readmit, the passenger cannot be deprived from the right to use reimbursement or re-routing in case the air carrier is cancelled the flight and offering a voucher instead.
To conclude and commemorate on the overall interpretive guidelines on EU passenger rights, even though it is aimed at responding the needs of the industry in the face of COVID-19, EU has left obscurities on the understanding and implications of certain spots such as the non-exhaustive perception of the extraordinary circumstances. International Air Transport Association (“IATA”)’s Regional Vice President for Europe Rafael Schvartzman stated in this respect that “These guidelines unfortunately don’t provide the clarity that cash-strapped EU airlines need. Given the extraordinary circumstances and financial pressures our airlines are facing…”.
Author: Ezgi Aysima Kır
