In light of the exceptional situation following the developing COVID-19 epidemic, the European Commission adopted on 18 March 2020 its interpretative guidelines on EU passenger rights regulations. Indeed, the transport industry and its passengers have been directly affected by the restrictive measures taken by the various authorities to contain the outbreak.
The purpose of the Commission’s interpretative guidelines is to clarify the rights of passengers, laid down in each EU regulation, in the context of this particular crisis, notably regarding cancellations, delays and compensation in the air, rail, road and maritime transport.
Guidelines applicable to all means of transport
In case of cancellation, and if the carrier has not informed the passenger sufficiently in advance, the passenger will be entitled to compensation (to be chosen in the form of reimbursement or re-routing at the earliest opportunity or at a later date). Nonetheless, if the passenger no longer wishes to travel (or cannot travel), he/she will be refunded, solely depending on the type of ticket purchased, as the carrier has no legal obligation at European level in such cases. However, we draw your attention to the fact that it is possible that national measures have been taken to deal with passengers who no longer wish or cannot travel because of the COVID-19 outbreak. These measures may differ from one Member State to another and are not addressed in the Commission's guidelines.
Air passenger rights
The rights of air passengers are laid down in Regulation (EC) No 261/2004, which is directly applicable in the law of the Member States.
Firstly, the passenger has the right to reimbursement or re-routing (at the earliest opportunity or at a later date). If only one reservation has been made for the outward and return journey, the passenger will have the option of being reimbursed for both flights or re-routed on the outward flight. As re-routing choices may also be affected by the current crisis, airlines are also obliged to inform passengers of delays and/or uncertainties for future travels.
Secondly, the passenger has the right to care (including sufficient refreshments and food, as well as accommodation and transport to a hotel if necessary). If the passenger opts for full reimbursement of his/her flight(s) or re-routing, he/she is not entitled to care (note, however, that pending re-routing, the right to care subsists).
The COVID-19 crisis does not exonerate the air carrier from these obligations, as these rights continue to apply even when the cancellation is due to extraordinary circumstances. Nota bene, these include circumstances that could not have been avoided even if all reasonable measures have been taken.
Thirdly, the passenger is entitled to compensation in certain cases, unless the cancellation is due to extraordinary circumstances. In the context of the COVID-19 crisis, the Commission considers that certain measures qualify as extraordinary circumstances, for instance:
- the prohibition by public authorities of flights/traffic of persons (and the subsequent cancellation of flights by airlines) or
- when an airline cancels a flight on grounds of protecting the health of the crew.
Other measures, such as the cancellation of a flight by the airline for reasons of ‘ghost flight’ (when there are no passengers on the aircraft) in order for appropriate organizational measures to be taken with respect to the right to compensation, can also be qualified as exceptional circumstances, depending on the circumstances. A case-by-case analysis is therefore required.
Rail passenger rights
Rail passenger rights are laid down in Regulation (EC) No 1370/2007. First of all, rail passengers have the right to be informed, which means that the carrier has the obligation to provide all information related to the journey (including for example information on delays).
Secondly, passengers also have the right to reimbursement or continuation of the journey (or re-routing) in case of a delay of more than 60 minutes. The refund will be calculated on the basis of the remaining journey to be made and the continuation of the journey or re-routing will take place at the earliest opportunity/ at best convenience of the passenger. Delays could be affected by the COVID-19 crisis, the carrier is therefore obliged to keep passengers informed of any additional delays and options for continuing the journey.
In addition, passengers can obtain compensation for re-routing or onward travel (up to 25% of the ticket price in case of delays between 60 and 119 minutes or 50% of the ticket price in case of delays of more than 120 minutes).
Furthermore, passengers are entitled to assistance in the event of delays. This may include the right to meals and refreshments, within reasonable limits, or accommodation (when physically possible). The above-mentioned European Regulation does not, however, contain any element that would allow for any deviation from these rights during the COVID-19 crisis. Passengers' rights will therefore have to be ensured by the carrier, even in cases of (long) delays due to the outbreak.
Bus and coach passenger rights
The rights of bus and coach passengers are laid down in Regulation (EU) No. 181/2011. Here too, passengers have the right to be informed, also in the event of cancellation or delay. The right to continue the journey, to be re-routed as soon as possible or to be reimbursed applies in this sector too, under varying conditions. For a distance of 250 km or more, reimbursement or re-routing is foreseen in certain cases. Again, the notion of 'at the earliest opportunity' and the level of information may be impacted by the COVID-19 crisis. If, in the event of cancellation, the carrier does not offer a choice between refund or re-routing, 50% of the ticket price will be refunded to the passenger.
Secondly, passengers have the right to assistance, which implies that in the event of a delay of more than 90 minutes or cancellation of a journey of more than three hours, passengers will be entitled to snacks, meals or refreshments (if reasonably available), as well as accommodation (maximum two nights at a maximum rate of EUR 80 per night) and transport to that eventual place of accommodation.
Again, this Regulation does not contain any elements that would allow carriers to deviate from these rights during the COVID-19 crisis.
Maritime and inland waterway passenger rights
The rights of passengers travelling by sea or inland waterway are laid down in Regulation (EU) No 1177/2010. Here too, passengers have the right to be informed of any new situation(s) or possible delays, as well as modified timetables, as soon as possible.
Passengers have the right to re-routing or reimbursement if the delay is longer than 90 minutes. Passengers will then be able to choose between re-routing to the final destination at the earliest opportunity or a refund of the ticket price with a return service to the point of departure (if possible). Again, delays may be impacted by the COVID-19 crisis.
Passengers must be able to benefit from assistance, exactly as provided for in the Regulation on the rights of bus and coach passengers explained above.
Passengers may request compensation of 25% of the ticket price for delays of variable length or 50% of the ticket price if the delay is more than twice that length.
However, if the cancellation is due to exceptional circumstances, the right to compensation is excluded. In the context of the COVID-19 crisis, the Commission considers that certain measures qualify as extraordinary circumstances, for example:
- the prohibition by public authorities of transport services (and subsequent transport service cancellations by maritime passenger carriers) or
- when a carrier cancels a transport service for reasons of protecting the health of the crew.
Other measures, such as the cancellation of a service by the carrier for 'ghost ship' reasons (when there are no passengers on board) in order for appropriate organizational measures to be taken related to the right to compensation, may also be qualified as exceptional circumstances, depending on the circumstances. A case-by-case analysis is also required here.
Conclusion
The transport industry, whatever the means, was the first to be severely disrupted by the COVID-19 crisis and millions of passengers were affected.
The European regulations establishing passenger rights for each means of transport contain the same basic passenger rights, nevertheless, the COVID-19 outbreak has a different impact on each of these rights. Indeed, it is worth noting that in the air and maritime transport industries, passengers' rights are less protected in case of exceptional circumstances, to the benefit of carriers. Finally, it should be noted that the definition of 'exceptional circumstances' remains variable and depends on each situation. The Commission points out that the few circumstances mentioned above cannot be exhaustive.
Annabelle Lepièce, Partner, Brussels
Aline Fadié, Paralegal, Brussels
