Following the introduction of various measures across Member States due to the COVID-19 pandemic, including travel restrictions and border controls, passengers and transport operators are having to face cancellations and delays in transport. The European Commission has published the Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19 (hereinafter referred to as the “Guidelines“) to ensure that EU passenger rights are applied consistently across the EU Member States. The Guidelines cover the rights of passengers when travelling by air, rail, ship or bus/coach, maritime and inland waterways, as well as the corresponding obligations for carriers.
The Guidelines cover the following passenger rights legislation:
1.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;
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;
(hereinafter referred to as the “Regulations“).
The Guidelines do not cover Directive (EU) 2015/2302 on package travel and linked travel arrangements.
The Regulations have direct effect in Malta owing to its accession to the European Union.
This article highlights the salient aspects of the Guidelines relating to all transport modes generally and to travelling specifically by air and sea.
Guidance across transport modes
(a) Right to choose between reimbursement and re-routing
If passengers face the cancellation of their journey, they can choose between:
1. reimbursement of the ticket price; or
2. re-routing to reach their final destination at a later stage; or
3. re-routing at the earliest opportunity.
The Commission considers that the third option to have the journey re-routed at the “earliest opportunity” will considerably be delayed and/or is subject to considerable uncertainty in view of the COVID-19 pandemic. The reason for this is that carriers may find it impossible to re-route passengers to the intended destination within a short period of time. This might arise where, for example, a Member State has suspended all means of transport arriving from certain countries.
At the same time, the Guidelines clarify that the current circumstances are “extraordinary”, with the consequence that certain rights – such as compensation in case of flight cancellation less than two weeks from departure date – may not be invoked.
(b) Situations where passengers cannot travel or want to cancel a trip
The Regulations do not address situations where passengers cannot travel or want to cancel a trip on their own initiative in the circumstances of COVID-19. In this case, reimbursement of the ticket depends on its type (reimbursable, possibility to rebook), and companies may offer vouchers for subsequent use.
This situation is to be distinguished from situations where the carrier cancels the trip itself as described above.
Air Passenger Rights
(a) Information to passengers
Passengers have a right to be given information by operators on the rights that are available to them.
(b) Right to reimbursement or re-routing
If a flight is cancelled by an airline, the operating air carrier must offer the passengers all the following choices:
1. reimbursement (refund); or
2. re-routing at the earliest opportunity (this is likely not to be possible as explained hereinabove); or
3. re-routing at a later date at the passenger’s convenience.
(c) Right to care
If a flight is cancelled by an airline and the passengers choose to be re-routed at the earliest opportunity, the operating air carrier must offer passengers free of charge the following care:
1. meal and refreshments in a reasonable relation to waiting time; and
2. hotel accommodation if necessary; and
3. transport to the place of accommodation.
(d) Right to compensation
Passengers have a right to a fixed sum compensation in some circumstances. This does not apply to cancellations:
1. made more than 14 days in advance of the flight; or
2. caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.
The Commission considers that the following measures are extraordinary circumstances:
1. where public authorities take measures intended to contain the COVID-19 pandemic, including 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 (including where the prohibition only applies to persons benefitting from derogations such as nationality or residence). These measures are by their nature and origin not inherent in the normal exercise of the activity of carriers and are outside of their actual control; and
2. where the airline decides to cancel a flight and shows that this decision was justified on grounds of protecting the health of the crew.
Maritime and Inland Waterway Passenger Rights
(a) Information to passengers
Passengers must be informed:
1. of the situation as soon as possible and in any event not later than 30 minutes after the scheduled time of departure; and
2. of the estimated departure time and estimated arrival time as soon as that information is available.
(b) Right to reimbursement or re-routing
Where a carrier reasonably expects a passenger service to be (i) cancelled or (ii) delayed in departure from a port terminal for more than 90 minutes, the carrier must offer passengers a choice between two possibilities:
1. re-routing to the final destination under comparable conditions (as set out in the transport contract) at the earliest opportunity and at no additional cost; or
2. reimbursement of the ticket price and, where applicable, a return service free of charge to the first point of departure (as set out in the transport contract) at the earliest opportunity.
(c) Right to assistance
In case of cancellation or a delay in departure for 90 minutes or more, passengers have a right to assistance in the form of snacks, meals or refreshments in proportion to the waiting time provided that they are available or can be reasonably supplied.
In case of cancellation or a delay in departure where a stay of one or more nights or a stay additional to that intended by the passenger becomes necessary, passengers have a right to the following:
1. accommodation for up to 3 nights at a maximum rate of EUR 80 per night;
2. transport to the accommodation and return to the terminal.
(d) Right to compensation
Passengers have a right to compensation from the carrier if they are facing a delay in arrival at the destination as set out in the transport contract. The minimum level of compensation is 25% of ticket price for varying delays in view of the scheduled duration of the journey. If the delay exceeds double that duration, the compensation must be 50% of the ticket price.
There are certain exemptions to the right to receive compensation, including where the delay is caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.
The Commission considers that the following measures are extraordinary circumstances:
1. where public authorities take measures intended to contain the COVID-19 pandemic, including 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 (including where the prohibition only applies to persons benefitting from derogations such as nationality or residence). These measures are by their nature and origin not inherent in the normal exercise of the activity of carriers and are outside of their actual control;
2. where the carrier decides to cancel a transport service in good time (and even without being certain about the rights of the various passengers to travel at all) where no such person would be expected to travel due to the current measures being taken by public authorities and the vessel or ship would remain empty if the service is not cancelled, so that appropriate organizational measures might be taken, including in terms of care for passengers owed by the carrier; and
3. where the carrier decides to cancel a transport service and shows that this decision was justified on grounds of protecting the health of the crew.
|
Disclaimer |
|
This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Joshua Chircop. |