The COVID-19 outbreak has hit the air carriers particularly hard due to the containment measures of the public authorities, such as travel restrictions, lockdowns, and quarantine zones. The EU Commission has, therefore, issued an interpretative guideline to help with the interpretation of regulation (EC) No 261/2004 regarding EU passenger rights in the context of the developing situation with COVID-19. 

According to the regulation mentioned above, the passengers have the right to a fixed sum compensation when their flight is cancelled. 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. 

In the interpretative guideline, the Commission considers that 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. This means that passengers are not entitled to compensation if the flight is cancelled due to COVID-19 restrictions.

The Regulation does not recognize a separate category of ´particularly extraordinary’ events, beyond the ‘extraordinary circumstances’ as referred to above. Even though the current situation with the COVID-19 pandemic seems ‘particularly extraordinary’ the air carrier is not exempted from all of its obligations under the Regulation.

That means, even if the passengers are not entitled to any compensation when the flight is cancelled due to COVID-19 restrictions, the passengers still have the right to reimbursement or rerouting as well as the right to care.

When a flight is cancelled the operating air carrier is obliged to offer the passengers the choice among:

1. reimbursement (refund),

2. rerouting at the earliest opportunity, or

3. rerouting at a later date at the passenger's convenience.

During the current COVID-19 outbreak, it can be impossible for the air carrier to offer the passengers rerouting at the earliest opportunity within reasonable time. It might even be impossible for the air carriers to give an estimate as to when it again will be able to fly to certain destinations if a country has closed all air traffic. Therefore, passengers may risk being considerably delayed if they choose rerouting at the earliest opportunity. 

In situations where the passengers insist on being rerouted at the earliest opportunity, the air carrier must inform passengers about the delays and/or uncertainties involved in them choosing rerouting instead of reimbursement. Should a passenger, nonetheless, choose to be rerouted at the earliest opportunity, the air carrier has fulfilled its information obligation if it has communicated on its own initiative, as soon as possible and in good time, the flight available for rerouting.

According to the Regulation, the operating air carrier must also offer care to the passengers, who are affected by a flight cancellation. This consist of meals and refreshments in a reasonable relation to the waiting time, hotel accommodation if necessary, and transport to the place of accommodation. However, if the passenger chooses reimbursement or rerouting at a later date at the passenger’s convenience, the right to care ends.

As mentioned above, the Regulation does not recognize a sperate category of ‘particularly extraordinary’ event. The air carrier is therefore not exempted from its right to care, even during a long period. 

A ‘particularly extraordinary’ event was also the reason for cancellation of the flight in case C-12/11 (McDonagh). The passenger stranded in an airport when the passengers flight was cancelled due to the closure of part of European airspace as a result of the eruption of the Eyjafjallajökull volcano in Iceland back in 2010. The EU Court of Justice found that the operation air carrier was required to provide care to the passengers, who find themselves in a particularly vulnerable state in that they are forced to remain at an airport for several days.

The intention of the Regulation is to ensure that adequate care is provided in particular to passengers waiting for rerouting. In case C-12/11 (McDonagh) the EU Court of Justice come to the conclusion, that sanctions should not be imposed on air carriers when they can prove that they have undertaken their best endeavours to comply with their obligations under the Regulation taking into consideration the particular circumstances linked to the events and the principle of proportionality. However, the national courts can apply sanctions if they consider that an air carrier has taken advantage of such events to evade its obligations under the Regulation.

The interpretation guidelines leave some questions unanswered. It will be up to the national courts to interpret and establish the extent of the air carriers’ obligations under regulation 261/2004 in the light of the COVID-19 pandemic. At NJORD Law firm we are expert in aviation law and flight delays. We follow the situation with COVID-19 closely and we are ready to answer any questions in relations to flight cancellations due to COVID-19 or aviation law in general.