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Air Travel – How have passengers rights become affected by the COVID-19 pandemic

Various countries worldwide have restricted air travel with the scope of containing the highly contagious Coronavirus disease (COVID-19). Such measures have undoubtedly rendered the transport industry as one of the most affected sectors across Europe. Consequently, both airlines and passengers have found themselves questioning what their rights are amidst the Covid-19 pandemic.

The European Union regulates air passengers’ rights by means of the ‘Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 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”), which has ever since its inception offered certainty and consistency as to what are those obligations of airlines and those rights of passengers. However, considering the current unprecedented situation in Europe, not even such Regulation is sufficient to clarify matters concerning air travel. The European Commission, acknowledging the situation, has issued a notice of guidelines on the interpretation entitled ‘ Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19’ (the “Guidelines”), to clarify passengers` rights and the obligatory regimes applicable to airlines with respect to the application of the Regulation.

The Guidelines focus on the three basic remedies which the Regulation imposes on airlines to offer to passengers affected by cancelled flights:- (i) reimbursement or re-routing at the earliest opportunity, (ii) care and (iii) compensation. While the Commission gives a wider interpretation on the terms ‘re-routing’ and ‘earliest opportunity’ considering the exceptional circumstances we are all currently living in, the Commission reaffirms that passengers’ right to care remains unaffected. Such right includes free meals and refreshments, hotel accommodation if necessary, and any relative transportation, all of which should be fulfilled by the airlines in question. The Commission, however, relaxes the airline’s duties of paying compensation to affected passengers. In this regard, the Commission considers that when Member State governments take measures intended to control the widespread of the Covid-19 pandemic, such measures are by their very nature not innate in the typical exercise of the activity of carriers. Thus, the right of compensation is waivered in this regard. This also applies to the cancellation of a flight by the airline on the grounds of protecting the health of the crew as it should also be considered as caused by exceptional circumstances.

In practice, airlines are offering vouchers for future travel when a flight is cancelled. In a non-exceptional circumstance, the mere fact that the passenger accepts vouchers shall not be construed as a waiver of the right of reimbursement.

The commission highlights that the above guidelines are not and should not be considered as exhaustive and do not cover Directive (EU) 2015/2302 on package travel and linked travel arrangements.

Should you require further information or assistance in connection with the above, please do not hesitate to contact us on info@dfadvocates.com

Photo: DFA

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