EU Guidelines re. the coronavirus and Regulation 261/2004

Due to these recent containment measures, such as travel restrictions, lockdowns and quarantine zones, the European Commission has been asked by the industry to clarify the rights and obligations of European air carriers in relation to Regulation 261/2004.

Coronavirus as an extraordinary circumstance

Regulation 261/2004 provides for a fixed sum compensation in circumstances of cancellations and long delays. However, if the cancellation was made more than 14 days in advance or where the cancellation is caused by 'extraordinary circumstances', the passengers are not entitled to be compensated by the carrier.

The Commission has recognized that public authority measures intended to contain the coronavirus pandemic are measures outside the carriers “normal activities” and are considered outside their actual control.

The Commission has further clarified that these conditions are considered fulfilled:

“where public authorities either outright prohibit certain flights or ban the movement of persons in a manner that excludes, de facto, the flight in question to be operated.”

Furthermore, where the air carrier decides to cancel a flight on grounds of protecting the health of crew members, such cancellations are, according to the Commission, also considered as “caused” by extraordinary circumstances. 

It is furthermore stated in Commission’s guidelines that if the carrier suspects a flight to be empty, it is legitimate for the carrier to cancel the flight in good time and such cancelations shall also be considered as being the result of extraordinary circumstances in accordance with Article 5.3 of Regulation 261/2004.

Right to choose between reimbursement and rerouting

In the case of a flight cancellation by the airlines, Article 5 obliges the operating air carrier to offer the passengers the choice among:

1. a) reimbursement (refund);
2. b) re-routing at the earliest opportunity, or
3. c) re-routing at a later date at the passenger's convenience.

The Commission recognizes that the circumstances of the coronavirus outbreak have made it impossible for air carriers to re-route passengers to their intended destination within a short period of time as coronavirus continues to cause extensive delays and uncertainty in European airports.

Thus, the Commission has suggested that under most circumstances it might be the better choice, to reimburse the passenger the price of the tickets that have not and cannot be used.

Regarding reimbursement the Commission has stated that in cases where the passenger books the outbound 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.

Should the passenger wish to be re-routed at the earliest opportunity, the airline will have fulfilled its “information obligation” if the airline has communicated on its own initiative, as soon as possible and in good time, the flight available for rerouting.

Duty of Care only applies until rerouting

The passengers right to care is not affected by the current situation regarding coronavirus. However, if the passenger opts for reimbursement of the full cost of the ticket instead of being rerouted at the “earliest convenience”, the right to care in accordance with Article 9 does not apply. The same applies when the passenger chooses re-routing at a later date convenience (Article 5(1)(b) in conjunction with Article 8(1)(c)).

The right to care therefore only subsists as long as passengers have to wait for a rerouting at the earliest convenience.

When passengers cannot travel or want to cancel a trip

Whether or not a passenger is entitled to be reimbursed or rebooked in such cases depends on the type of ticket as specified in the carrier's terms & conditions.

IUNO’s opinion

European air carriers have urgently required clarity on the application of Regulation EU261/2004 in the present situation. Although the Commission has addressed some of the concerns extended by the industry, the new guidelines fall short of the alleviation that airlines had hoped to be given due to the current circumstances, which has left the industry crippled.

The Commission has recognized that cancellations caused by governmental imposed containment measures such as flight bans or by the declining air travel demand are to be considered as extraordinary circumstances in accordance with Article 5.3 of Regulation 261/2004. Thus, in most cases regarding cancellations and long delays passengers will not be entitled to compensation.