COVID-19 - COMMISSION NOTICE

May 14. | 2020


COMMISSION NOTICE



Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19



(2020/C 89 I/01)



Passengers and the European transport industry are hit hard by the Covid-19 outbreak. Containment measures of authorities, such as travel restrictions, lock-downs and quarantine zones, imply that transport may be one of the most severely affected sectors of this pandemic. The situation is stressful for many passengers, whose travel arrangements have been cancelled and/or who do not wish or are not allowed to travel anymore.



The European Union (EU) is the only area in the world where citizens are protected by a full set of passenger rights, whether they travel by air, rail, bus and coach or ship.



Given the unprecedented situation Europe has been experiencing due to the Covid-19 outbreak, the European Commission believes it would be helpful to clarify in this context the rights of passengers when travelling by air, rail, bus and coach or ship, as well as the corresponding obligations for carriers.



1. PURPOSE



These interpretative guidelines aim at clarifying how certain provisions of the EU passenger rights legislation apply in the context of the Covid-19 outbreak, notably with respect to cancellations and delays.



The guidelines complement the guidelines previously published by the Commission (1) and are without prejudice to the interpretation of the Court of Justice.



The guidelines cover the following passenger rights legislation:







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, and repealing Regulation (EEC) No 295/91 (2)







Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (3);







Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (4),







Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (5).



These guidelines do not cover Directive (EU) 2015/2302 on package travel and linked travel arrangements (6).



2. GUIDANCE ACROSS TRANSPORT MODES



2.1. Right to choose between reimbursement and rerouting



The four Regulations make specific provisions for this right in the case of cancellation or of certain delays.



As regards re-routing (7), the circumstances of the Covid-19 outbreak may have an incidence on the right to choose re-routing at the ‘earliest opportunity’ (8). Carriers may find it impossible to re-route the passenger to the intended destination within a short period of time. Moreover, it may not be clear for some time when re-routing will become possible. This situation may for example arise where a Member State suspends flights or stops trains, buses, coaches or ships arriving from certain countries. Depending on the case, therefore, the ‘earliest opportunity’ for re-routing may be considerably delayed and/or subject to considerable uncertainty. Reimbursement of the ticket price or a re-routing at a later stage ‘at the passenger’s convenience’ might therefore be preferable for the passenger. Details are set out further below for each transport mode.



2.2. Situations where passengers cannot travel or want to cancel a trip



The EU’s passenger rights regulations do not address situations where passengers cannot travel or want to cancel a trip on their own initiative. Whether or not a passenger is reimbursed in such cases depends on the type of ticket (reimbursable, possibility to rebook) as specified in the carrier’s terms & conditions.



It appears that various carriers are offering vouchers to passengers, who do not want to (or are not authorised to) travel any more as a result of the outbreak of Covid-19. Passengers can use these vouchers for another trip with the same carrier within a timeframe established by the carrier.



This situation has to be distinguished from the situation where the carrier cancels the journey and offers only a voucher instead of the choice between reimbursement and re-routing. If the carrier proposes a voucher, this offer cannot affect the passenger’s right to opt for reimbursement instead.



2.3. Specific national rules in the context of the Covid-19 outbreak



In some cases specific national rules have been adopted in the context of the Covid-19 outbreak, which create the obligation for carriers to refund passengers or issue a voucher to passengers in case the passenger could not take a flight that has been operated.



Such national measures do not fall under the scope of the EU passenger rights regulations. They are not addressed in these guidelines, which deal only with the interpretation of the rules on passenger rights adopted by the Union.



3. AIR PASSENGER RIGHTS (REGULATION (EC) No 261/2004)



3.1. Information to passengers



Apart from the rules regarding information on the rights available, Regulation (EC) No 261/2004 does not contain specific provisions on information on travel disruptions. However, rights to compensation in case of cancellation are linked to the carrier failing to give notice sufficiently in advance. This aspect is thus covered by the considerations below on rights to compensation.



3.2. Right to reimbursement or re-routing



In the case of a flight cancellation by the airlines (no matter what the cause is), Article 5 obliges the operating air carrier to offer the passengers the choice among:



a)



reimbursement (refund);



b)



re-routing at the earliest opportunity, or



c)



re-routing at a later date at the passenger’s convenience.



Regarding reimbursement, in cases where the passenger books 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, i.e. here the outbound flight.



However, if the outbound 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: to be reimbursed for the whole ticket (i.e. both flights) or to be re-routed on another flight for the outbound flight (Interpretative Guidelines, Point 4.2).



As regards re-routing, and as explained above, ‘the earliest opportunity’ may under the circumstances of the Covid-19 outbreak imply 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.



The application of Article 5 of Regulation (EC) No 261/2004 may have to take into consideration these circumstances. However, at any rate:



First, passengers should be informed about delays and/or uncertainties linked to them choosing re-routing instead of reimbursement.



Second, should a passenger choose nonetheless re-routing at the earliest opportunity, the 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.



3.3. Right to care



According to Article 9 of the Regulation, which provides all relevant details, passengers who are affected by a flight cancellation must also be offered care by the operating air carrier, free of charge. This consists of meals and refreshments in a reasonable relation to the waiting time; hotel accommodation if necessary, and transport to the place of accommodation. Moreover, airports are to provide assistance to disabled passengers and passengers with reduced mobility in accordance with Regulation (EC) No 1107/2006 (9).



It is worth recalling that when the passenger opts for reimbursement of the full cost of the ticket, the right to care ends. The same happens when the passenger chooses re-routing at a later date at the passenger’s convenience (Article 5(1)(b) in conjunction with Article 8(1)(c)).



The right to care subsists only as long as passengers have to wait for a rerouting at the earliest convenience (Article 5(1)(b) in conjunction with Article 8(1)(b)).



The intention underlying the Regulation is that the needs of passengers waiting for their return flight or re-routing are adequately addressed. The extent of adequate care will have to be assessed on a case-by-case basis, taking into account the needs of passengers in the circumstances and the principle of proportionality (i.e.: according to the waiting time). The price paid for the ticket or the length of the inconvenience suffered should not interfere with the right to care (Interpretative Guidelines Point 4.3.2).



According to the Regulation, the air carrier is obliged to fulfil the obligation of care even when the cancellation of a flight is caused by extraordinary circumstances, that is to say circumstances that could not have been avoided even if all reasonable measures had been taken.



The Regulation contains nothing that recognises a separate category of ’particularly extraordinary’ events, beyond the ’extraordinary circumstances’ referred to in Article 5(3) of the Regulation. The air carrier is therefore not exempted from all of its obligations, including those under Article 9 of the Regulation, even during a long period. Passengers are especially vulnerable in such circumstances and events. (10) In exceptional events, the intention of the Regulation is to ensure that adequate care is provided in particular to passengers waiting for re-routing under Article 8(1)(b) of the Regulation.



3.4. Right to compensation



Regulation 261/2004 also provides for fixed sum compensations in some circumstances. This does not apply to cancellations made more than 14 days in advance or where the cancellation is caused by ’extraordinary circumstances’ that could not have been avoided even if all reasonable measures had been taken. For details, see Article 5(1) and Article 7 of the Regulation.



The Commission considers that, 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.



Article 5(3) waives the right to compensation on condition that the cancellation in question ‘is caused’ by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.



This condition should be 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.



This condition may also be fulfilled, where the flight cancellation occurs in circumstances where the corresponding movement of persons is not entirely prohibited, but limited to persons benefitting from derogations (for example nationals or residents of the state concerned).



Where no such person would take a given flight, the latter would remain empty if not cancelled. In such situations, it may be legitimate for a carrier not to wait until very late, but to cancel the flight in good time (and even without being certain about the rights of the various passengers to travel at all), in order for appropriate organisational measures to be taken, including in terms of care for passengers owed by the carrier. In cases of the kind, and depending on the circumstances, a cancellation may still be viewed as ‘caused’ by the measure taken by the public authorities. Again, depending on the circumstances, this may also be the case in respect of flights in the direction opposite to the flights directly concerned by the ban on the movement of persons.



Where the airline decides to cancel a flight and shows that this decision was justified on grounds of protecting the health of the crew, such cancellation should also be considered as ‘caused’ by extraordinary circumstances.



The above considerations are not and cannot be exhaustive in that other specific circumstances in relation to Covid-19 may also fall under the ambit of Article 5(3).