Author: Loredana Cristea (associate), Andrei Greceanu (associate)
In an effort to mitigate the economic impacts of the COVID-19 pandemic, on 18 March 2020 the Commission published guidelines to ensure EU passenger rights are applied in a coherent manner across the EU. These guidelines concern the interpretation of the relevant EU legislation on passenger rights with respect to air, rail, bus and maritime travel in the context of the COVID-19 pandemic.
Most concerns find similar answers with regards to all four means of transportation so, for the sake of brevity, only air travel will be discussed, with the situation for other means of transportation discussed where differences arise, at the end of the section.
Reimbursement and re-routing
The guidelines first address the issue of remedies available to passengers affected by the COVID-19 pandemic. As such, if a flight is cancelled, passengers ought to be given the opportunity to choose between reimbursement of the whole ticket price or a re-routing of the travel, but only if the outbound and inbound flight are part of the same booking.
As regards re-routing, the circumstances of the COVID-19 outbreak may have an incidence on the right to choose re-routing at the “earliest opportunity”, because, under the circumstances of the COVID-19 outbreak, such an opportunity may imply considerable delay, The same may apply to the availability of concrete information on such “opportunity” given the high level of uncertainty affecting air traffic. While these observations seem to serve as a means to limit any potential liabilities on the part of air companies, the Commission still holds that the passengers are to be informed at all times and that the carries should communicate to the passenger, on its own initiative, as soon as possible and in good time, the flight available for re-routing, in order to comply with the obligations of the applicable EU norms.
Force majeure precludes the right to compensation
The right to compensations is not exercisable when extraordinary circumstances caused the cancellation of the flight. The Commission considers that, in the context of the COVID-19 pandemic, a number of situations can constitute „extraordinary circumstances” and therefore preclude passengers from demanding compensation. As such, 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.
The Commission presents examples but specifies that the list is not exhaustive:
- Flights cancelled because of bans on movement of persons and prohibitions of flights;
- Flights cancelled where prohibitions are not total, but instead only certain persons may travel (e.g. national citizens) and no such persons actually take the given flight. In these cases, the extraordinary circumstances criterion is met because there is a clear causal link between the measure banning travel to all but certain groups of people and the decision to cancel flights which are almost empty as a result;
- Flights cancelled that were in the opposite direction of those flights that were cancelled because of bans and prohibitions on travel;
- Flights cancelled in order to protect the health of the crew.
Differences can be found in the realm of rail and bus transportation. In the case of transportation by rail, the existence of „extraordinary circumstances” does not preclude passengers from demanding compensation. In the case of bus travel, compensation is owed only if the company did not give the passenger a choice between reimbursement and re-routing.
Force majeure does not preclude the right to care
Regarding the right to care, which is the passengers’ right to food, refreshments, accommodation and transport if needed, as a result of the cancellation of flights, the guidelines are clear, in that this right is available to passengers even if the cancellation was a result of extraordinary circumstances such as the COVID-19 pandemic. The carriers are therefore still obliged to ensure the passengers enjoy this right, unless they opt for reimbursement or rerouting.