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).

4. RAIL PASSENGER RIGHTS (REGULATION (EC) No 1371/2007)

4.1. Right to be informed

Before selling a ticket, railway undertakings and ticket vendors must provide passengers, upon request, with pre-journey information - including information on any activities likely to disrupt or delay services. Railway undertakings must also provide passengers with information during the journey – including information on delays, security and safety issues. Moreover, where railway undertakings and competent authorities, responsible for public service railway contracts, decide to discontinue a rail service, they must make the decision public and before it is implemented. Details of the right to travel information are set out in Article 8 and Annex II of Regulation (EC) No 1371/2011.

4.2. Right to reimbursement or continuation of the journey/re-routing

Article 16 of Regulation (EC) No 1371/2007 sets out the rights in respect of this matter. In summary the following can be retained. Where it can reasonably be expected that the delay in the arrival at the final destination will be more than 60 minutes, passengers have the choice between reimbursement of the ticket price or to continue the journey or re-routing. In particular:

a) the right to the reimbursement concerns the cost of the ticket for the part or parts of the journey not made and for the parts of the journey already made if the journey is no longer serving the purpose for which the passenger was planning it, together with (where relevant) a return service to the first point of departure;

b) continuation of the journey or re-routing have to take place under comparable transport conditions. At the passenger’s choice, they have to take place either at the earliest opportunity or at another point in time at his/her convenience.

As regards continuation of the journey/ 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 rail traffic.

First, passengers should be informed about delays and/or uncertainties when offering them the choice between the two possibilities.

Second, should a passenger choose nonetheless continuation of the journey or 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 train available for continuation or rerouting.

4.3. Right to assistance

In the case of a delay in arrival or departure, passengers have the right to receive information on the situation and the estimated departure and arrival time as soon as this information becomes available. In case of a delay exceeding 60 minutes, they also have the right to receive meals and refreshments within reasonable limits; accommodation where a stay of one or more nights becomes necessary where and when physically possible; transport to the railway station or to the alternative departure point or to the final destination, where and when physically possible, if the train is blocked on the track. Details are set out in Article 18(2) of Regulation (EC) No 1371/2007.

According to the Regulation, the railway undertaking is obliged to fulfil the above obligations even when the cancellation of a train is caused by circumstances such those linked to Covid-19. The Regulation contains nothing that would allow the conclusion that, under particular circumstances, the railway undertaking is exempted from its obligation to provide assistance in accordance with Article 18(2) of Regulation (EC), which may be required even during a long period where relevant. The intention of the Regulation is to ensure that adequate assistance is provided in particular to passengers waiting for re-routing at the earliest opportunity under Article 16. Regulation (EC) No 1371/2007 provides that assistance to persons with disabilities and persons with reduced mobility must be adapted to the needs of those passengers, including as regards the information referred to above.

4.4. Right to compensation

Where passengers have not opted for reimbursement but ask for the continuation of the journey or re-routing, passengers have also the right to compensation. For delays of 60 to 119 minutes the compensation amounts to 25 % of the ticket price, whereas for delays of 120 minutes and more the compensation is 50 % of the ticket price. Details are set out in Article 17 of Regulation (EC) No 1371/2007,

Unlike in other transport modes, the existence of extraordinary circumstances, if any, does not affect the right to compensation in cases of delays (including those entailed by cancellations). (11)

5. BUS PASSENGER RIGHTS (REGULATION (EU) No 181/2011) (12)

5.1. Right to be informed

According to Article 24 of the Regulation, carriers and bodies that manage terminals must, within their respective areas of competence, provide passengers with adequate information throughout their travel. Article 20 of the Regulation contains detailed provisions regarding information to be provided in case of cancellation or delay in departure.

5.2. Right to continuation of the journey/re-routing or reimbursement

In case of regular bus services with a scheduled distance of 250 km or more, Regulation (EU) No 181/2011 provides for rerouting or reimbursement in certain cases as specified in Article 19. Thus, notably, where a carrier reasonably expects the departure of a regular service from a terminal to be cancelled or delayed for more than 120 minutes, passengers have the right to choose between continuation or re-routing to the final destination at no additional cost at the earliest opportunity under comparable conditions or reimbursement of the full ticket price. This can be combined, where relevant, with a free of charge return service at the earliest opportunity to the first point of departure set out in the transport contract. The same choice is available to the passenger if the departure is cancelled or delayed from a bus stop.

As regards continuation of the journey/ 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 bus and coach traffic.

First, passengers should be informed about delays and/or uncertainties when offering them the choice between continuation of the journey / re-routing and 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 service available for continuation or rerouting.

5.3. Right to assistance

Rights to assistance are set out in Article 21 of Regulation (EU) No 181/2011, and the following can be retained in summary. Where the departure of a long-distance service with a scheduled duration of more than 3 hours is cancelled or delayed for more than 90 minutes, passengers are entitled to snacks, meals or refreshments, in reasonable relation to the waiting time, provided they are available on the bus or in the terminal or can reasonably be supplied. Accommodation needs to be provided if passengers have to stay overnight – for up to 2 nights, at a maximum rate of EUR 80 per night – and transport to their accommodation and return to the terminal.

This Regulation contains nothing that would allow the conclusion that the carrier can be exempted from all its obligations, including those for assistance. The intention of the Regulation is to ensure that adequate care is provided in particular to passengers waiting for re-routing under Article 21.

5.4. Right to compensation

In the case of bus services, the passenger has a right to compensation under the conditions set out in Article 19(2) of Regulation (EC) No 181/2011. It amounts to 50 % of the ticket price in case the service is cancelled, but is available only if the carrier fails to offer the passenger the choice between reimbursement and rerouting.

6. MARITIME AND INLAND WATERWAY PASSENGER RIGHTS (REGULATION (EU) No 1177/2010)

6.1. Right to be informed

As further specified in detail in Article 16 of Regulation (EU) No 1177/2010, passengers must be informed of the situation as soon as possible and in any event not later than 30 minutes after the scheduled time of departure and of the estimated departure time and estimated arrival time as soon as that information is available.

6.2. Right to re-routing or reimbursement

Where a carrier reasonably expects a passenger service to be cancelled or delayed in departure from a port terminal for more than 90 minutes, the carrier must offer passengers a choice between two possibilities:

— 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

— reimbursement of the ticket price and, where relevant, a return service free of charge to the first point of departure, as set out in the transport contract, at the earliest opportunity.

Details are set out in Article 18 of Regulation (EU) No 1177/2010.

As regards continuation of the journey/ 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 sea and inland waterway traffic.

First, passengers should be informed about delays and/or uncertainties when offering them the choice between re-routing and 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 service available for rerouting.

The provisions on re-routing and reimbursement as well as compensation do not apply to cruise ships (Article 2 (1)(c)).

6.3. Right to assistance

Under the conditions set out in Article 17 of Regulation (EU) No 1177/2010, passengers are entitled to 1) assistance in the form of snacks, meals or refreshments, in proportion to the waiting time, provided they are available or can reasonably be supplied and 2) accommodation if passengers where a stay of one or more nights or a stay additional to that intended by the passenger becomes necessary – for up to 3 nights, at a maximum rate of EUR 80 per night – and 3) transport to the accommodation and return to the terminal.

6.4. Right to compensation

Without losing the right to transport, passengers may request compensation from the carrier if they are facing a delay in arrival at the final destination as set out in the transport contract. The minimum level of compensation must be 25 % of the ticket price for varying delays, in function of the scheduled duration of the journey. If the delay exceeds double that duration, the compensation must be 50 % of the ticket price. Details are set out in Article 19 of Regulatin (EU) No 1177/2010.

Article 20(4) of Regulation (EU) No 1177/2010 provides for certain exemptions from the right to compensation, among other things, on account of extraordinary circumstances.

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 20(4) waives the right to compensation on condition that the cancellation in question ‘is caused’ by extraordinary circumstances, hindering the performance of the passenger service 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 transport services or ban the movement of persons in a manner that excludes, de facto, the transport service in question to be operated.

This condition may also be fulfilled, where the 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 travel, the vessel or ship would remain empty if the service is not cancelled. In such situations, it may be legitimate for a carrier not to wait until very late, but to cancel the transport service 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 transport services in the direction opposite to the services directly concerned by the ban on the movement of persons.

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, 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 20(4).

(1) Commission Notice — Interpretative Guidelines on Regulation (EC) No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and on Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council (OJ C 214, 15.6.2016, p. 5);

Communication from the Commission — Interpretative Guidelines on Regulation (EC) No 1371/2007 of the European Parliament and of the Council on rail passengers’ rights and obligations (OJ C 220, 4.7.2015, p. 1).

(2) OJ L 46, 17.2.2004, p. 1.

(3) OJ L 315, 3.12.2007, p. 14.

(4) OJ L 334, 17.12.2010, p. 1.

(5) OJ L 55 28.2.2011, p. 1.

(6) Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ L 326, 11.12.2015, p. 1).

(7) Some instruments also refer in parallel to a ‘continuation of the journey’.

(8) Points (a) and (b) of Article 8(1) of Regulation (EC) No 261/2004; points (a) and (b) of Article 16 of Regulation (EC) No 1371/2007; points (a) and (b) of Article 18(1) of Regulation (EU) No 1177/2010; points (a) and (b) of Article 19(1) of Regulation (EU) No 181/2011.

(9) Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (OJ L 204, 26.7.2006, p. 1).

(10) Case C-12/11, McDonagh, ECLI:EU:C:2013:43, paragraph 30 and Point 4.3.3. of the Interpretative Guidelines.

(11) See Case C-509/11 ÖBB Personenverkehr ECLI:EU:C:2013:613.

(12) The rights to re-routing or reimbursement (point 4.2) and the right to care (point 4.3) and the right to compensation (point 4.4) does not apply to domestic services in Croatia, Estonia, Hungary, Latvia, Portugal, Slovakia, Slovenia, and to services with a significant part of the service (including at least one scheduled stop) operated outside the European Union in case of Croatia, Estonia, Greece, Finland, Hungary, Latvia, Slovakia and Slovenia.