www.tourismlaw.pt Air passenger rights before, during, and after COVID-19 – where to next? Masha Korošec University of Ljubljana International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
Air passenger rights before, during, and after COVID-19 – where to next? Masha Korošec 1 1. Introduction. 2. Scope of Regulation 261/2004. 3. Air passenger rights. 4. Extraordinary circumstances as a way out for air carriers. 4.1 Technical issues. 4.2 Non-compliance with the rules of the air carrier. 4.3 COVID-19 as an extraordinary circumstance? 5. Concluding thoughts and guidelines for the future. Since its adoption, Regulation (EC) No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights has been faced with a challenge to balance on one hand rights and interests of air passengers and the other, the interests of air carriers. The paper provides a general overview of the current provisions and comments on their deficiencies from a critical point of view. Through the analysis of the recent case law the concept of »extraordinary circumstances« is addressed as well. The latter is of particular importance as only by proving such circumstances can the air carrier be released from the obligation to pay standard compensation to passengers. In the light of the foregoing, the paper examines the case law established by the Court of justice of the EU. KEYWORDS: Air transport, air passengers, air passenger rights, extraordinary circumstances, Regulation 261/2004, compensation, flight cancellation, flight delay, denied boarding. 1. Introduction Regulation (EC) No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights (“Regulation 261/2004” or “the Regulation”) aims at guaranteeing air passengers’ rights in case they are unable to travel due to any reason that is out of their control. Since its adoption, the Regulation suffers from ineffective enforcement, non-compliance and inconsistencies in its interpretation. Framed with in dubio pro consumatore perspective, the Regulation imposes a disproportionate burden on the airlines, but simultaneously, passengers are confronted with ineffective enforcement of their rights - a concern that became more evident during the pandemic of COVID-19. Due to the Regulation’s vague wording, the Court of Justice of European Union (“the CJEU”) adopted an excessive amount of case law in attempt to clarify its provisions. The lack of passenger awareness and issues with the enforcement of their rights undoubtedly call for a reform, the initiation of which is apparent from the Proposal for a revision of the passenger 1 PhD Candidate at the Faculty of Law, University of Ljubljana; Teaching and Research Assistant at the Faculty of Law, University of Ljubljana; masha.korosec@pf.uni-lj.si
ISSN 2184-8793 ISSNe 2975-9056 rights regulatory framework2, adopted by the European commission on 29 November 2023.3 Overall, the reform does not establish any new passenger rights as such. The Commission, already in 2013, proposed changes the Regulation, thus in the Commission’s view, the rules proposed in 2013 are still fit for the purpose.4 The paper analyses key aspects of the Regulation through the CJEU’s interpretation, while highlighting additional dilemmas observed during the pandemic, and discusses the current state of air passenger’s rights. Following the introduction, Chapter 2 provides a brief overview of the scope of the Regulation, which is limited to denied boarding, flight cancellations, and delays. The chapter addresses the general significance of terms and relevant case law adopted by the CJEU. From the general overview of the Regulation's scope, outlined in Chapter 2, which sets boundaries of passenger rights, the discussion in Chapter 3 focuses on individual air passenger rights in practice, identifying their shortcomings. Addressing one of the most critical issues, Chapter 4 examines the concept of extraordinary circumstances, allowing the airline to avoid compensation payments in the event of flight cancellations or delays. Through the presented chapters, the paper will indicate the direction in which the development of air passenger rights is heading and analyse the practical implications of enforcing these rights. 2. Scope of Regulation 261/2004 The application of passenger rights is limited to three main areas: (i) when passengers are involuntarily denied boarding, (ii) in the event of flight cancellation, and (iii) flight delays.5 In essence, passengers are only empowered to rely on their rights introduced by Regulation 261/2004 under these three specified circumstances. a. Denied boarding Denied boarding occurs when passengers are denied transportation on a flight, despite their intention or will to board, unless justified reasons such as health and safety, security concerns or inadequate travel documents exist.6 The previously applicable Regulation No. 295/917 specifically recognized denial of boarding only in cases where passengers were denied access to the flight due to overbooking.8 This provision enabled carriers to protect themselves against passengers who might alter their plans and not attend the flight. As the CJEU explained in Finnair, Regulation 261/20004 does not specify the grounds on which an air carrier refuses to carry a passenger.9 In 2 The passenger rights regulatory framework consists of five Regulations: Regulation (EC) No 261/2004 and Regulation (EC) No 1107/2006 for air, Regulation (EU) No 1177/2010 for waterborne, Regulation (EU) No 181/2011 for bus and coach, and Regulation (EU) 2021/782 replacing Regulation (EC) No 1371/2007 for rail transport. 3 Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EC) No 261/2004, (EC) No 1107/2006, (EU) No 1177/2010, (EU) No 181/2011 and (EU) 2021/782 as regards enforcement of passenger rights in the Union of 29 November 2023. 4 Ibid., p. 3. 5 Art. 1 of the Regulation. 6 Art. 2(1)(j) of the Regulation. 7 Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport. 8 Ibid, Art. 1. 9 Case C-22/11, Finnair of 4 October 2012, paras. 21-26.
International Journal of Tourism, Travel and Hospitality Law doing so, the EU legislator expanded the definition of »denied boarding« which now covers not only overbooking but all circumstances in which an air carrier might refuse to carry a passenger. b. Cancelled flight Regulation 261/2004 defines the term »cancellation« as non-operation of a flight which was previously planned and on which at least one seat was reserved.10 Due to the broad definition, it was unclear for some time whether this also includes (i) cases where the plane took off but was forced to return to the departure airport during the flight, and (ii) cases where the plane lands at a different airport than originally planned. As regards point (i) the CJEU emphasised that »cancellation« refers not only to the situation in which the airplane in question fails to take off at all, but also covers the case in which that airplane took off but, for whatever reason, was subsequently forced to return to the airport of departure. 11 In its decision the CJEU followed the opinion of AG Sharpston, who pointed out that in such cases the transportation cannot be considered completed since the carrier has not completed any part of the planned route. Passengers are in the same position as if they had remained at the departure airport.12 Regarding point (ii), it is important to note that for a flight to be considered completed, it is not sufficient for the aircraft merely to take off, but it must arrive at the intended destination as planned.13 When a flight is redirected to another airport, it is deemed cancelled, entitling the passenger to compensation.14 However, if the carrier immediately proposes an alternative route with comparable transport conditions to the initially intended airport, this is to be considered a delay rather than a cancellation.15 Another issue addressed by the CJEU which is also linked to flight cancellation is how to handle situations where the airline reschedules a flight several hours earlier than the initially scheduled departure time. In the Eurowings16 case the CJEU deliberated on whether such a flight should be treated as cancelled. The Regulation addresses cases of earlier flight departures only in the context of a route change,17 limiting the option for the carrier to offer an alternative route to the passenger in case of cancellation to a maximum of one to two hours prior the originally scheduled departure. These limitations arise from the fact that a significant advancement in departure time can cause similar inconveniences as a flight delay, as passengers may lose the opportunity to organize and manage their time.18 In accordance with a broad interpretation of passenger rights, it can be concluded that rescheduling a flight to a significantly earlier time is treated similarly to its cancellation.19 10 Art. 2(l) of the Regulation. 11 Case C-83/10, Aurora Sousa of 13 October 2011, para. 35. 12 Opinion of Advocat General Sharpston in case C-83/10, Aurora Sousa of 28 June 2011, para. 35. 13 Case C-826/19, Austrian Airlines AG of 22 April 2021, para. 35. 14 Ibid., para. 36. 15 Commission Notice – Interpretative Guidelines on Regulation (EC) No 261/2004 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, pp. 5-6, para. 3.2.4. 16 Joined cases C-146/20, C-188/20, C-196/20 in C-270/20, Eurowings of 21 December 2021. 17 Art. 5(1)(ii) and (iii)(c) of the Regulation. 18 Joined cases C-146/20, C-188/20, C-196/20 in C-270/20, Eurowings of 21 December 2021, para. 76. 19 Ibid., paras. 79 and 80.
ISSN 2184-8793 ISSNe 2975-9056 c. Flight delay Following Article 6 of the Regulation a flight delay refers only to the delay experienced at departure.20 Nevertheless, according to the CJEU, the definition of delay is broader and includes the late arrival of the aircraft at its final destination as well.21 3. Air passenger rights a. Right to complaint to the Authority Responsible for Implementing Regulation 261/2004 Member States are required to designate an authority responsible for implementing the Regulation,22 enabling passengers to address any complications when exercising their rights. Despite the intended protection of passengers, these authorities are often the reason for the Regulation’s ineffectiveness. Specifically, the practice of those authorities is uncoordinated among Member States.23 Their inadequate response to the CJEU's case law leads to inconsistent application of the Regulation's provisions. For example, in line with the CJEU's case law technical issues generally do not represent extraordinary circumstances, as will be discussed below, which would exempt the carrier its liability.24 However, some national authorities do not take this into account when assessing such cases.25 Consequently, passengers in certain Member States are not granted the compensation to which they are entitled. b. The carrier's obligation to inform passengers of their rights The scope of informing passengers about their rights is not extensively addressed in the Regulation, as the air carrier is only required to inform passengers of their rights in case of flight cancellation, delay or denied boarding.26 This follows from a generic provision mandating the placement of a notice beside each check-in counter, which shall state that »If you are denied boarding if your flight is cancelled or delayed for at least two hours, ask at the check-in counter or boarding gate for the text stating your rights, particularly with regard to compensation and assistance«. Unlike other consumer protection legal acts, the duty to inform introduced by the Regulation is remarkably shallow.27 This has been taken into consideration by the European Commission when adopting the Amendment Proposal to the Regulation in 2013, expanding the duty to information to details regarding the procedures for handling claims and complaints related to Regulation rights and appropriate contact address of the airline where passengers can send claims and complaints.28 It is evident that there is still a great lack of awareness among passengers regarding the existence of their rights.29 Only 14 % of European citizens are said to be aware of their rights guaranteed by 20 Art. 6 of the Regulation. 21 Case C-11/11, Air France SA of 26 February 2013, paras. 29 and 30. 22 Art. 16(1) of the Regulation. 23 Pantazi, 2020, p. 1103. 24 Case C-549/07, Wallentin-Hermann of 22 December 2008. 25 Pantazi, 2020, p. 1103. 26 Art. 14 of the Regulation. 27 Luzak, 2015, p. 9. 28 Recital 22 of the preamble of the Regulation. 29 Court of Auditors, Special Report 15/2021: Air passenger rights during the COVID-19 pandemic, p. 18.
International Journal of Tourism, Travel and Hospitality Law the Regulation,30 which exposes them to additional risks as airlines might exploit this to their advantage.31 c. Right to care The purpose of the right to care32 that is provided by the air carrier free of charge is to address the needs of passengers and to alleviate their situation arising from either flight cancellation, delay or denied boarding. The right to care may include a meal and refreshments in a reasonable relation to the waiting time, hotel accommodation, and the possibility of establishing contact with others via phone and email.33 Since the Regulation does not specify the definitions of these terms, passengers do not know what to expect, and the assistance received is often inadequate given the circumstances they are facing.34Should the carrier not provide care, and the passengers take care of it independently, they may require reimbursement for reasonable and justified expenses they have incurred.35 The CJEU recently clarified in the NIKI Luftfahrt case that the airline's obligation to provide care is limited to selecting and offering accommodation to the passenger, excluding the mere organization of the implementation of the accommodation arrangement.36 The CJEU added that regardless of such limitation of the air carrier's obligation under Article 9 of the Regulation, the air carrier is still obliged to pay particular attention to the needs of passengers, for example reduced mobility. Put differently, the air carrier must select the hotel carefully, having ascertained that that hotel is capable of meeting reasonable expectations in terms of quality and safety.37 Moreover, it has been highlighted by the European Commission that Regulation 261/2004 lacks clear limitations on the duration of accommodation, especially in the event of extraordinary circumstances, endangering the carrier's financial stability. Thus, the Amendment Proposal adopted by the European commission in 2013 has set a cap on the total cost to accommodation at EUR 100 per night (per passenger) and to maximum of 3 nights. It is in the discretion of the air carrier to determine whether this limitation will be applied. In any case, the passengers should be provided with information about available accommodation after the three-night period.38 The latter is however not included in the latest European commission’s proposal of November 2023. While this approach considers the financial capacity of airlines, it could prove overly restrictive, especially during a pandemic when transportation and passenger mobility were affected by numerous government measures. Furthermore, the Commission's Proposal in 2013 did not address financial limitations that would apply to food and beverages provided as part of the care as 30 Ibid. 31 Commission Notice: Interpretative Guidelines on Regulation (EC) No 261/2004, para. 4.1.1, p. 17. 32 Art. 9 of the Regulation. 33 Arts. 9(1) and 9(2) of the Regulation. 34 Court of Auditors, Special Report 30/2018: EU passenger rights are comprehensive, but passengers still need to fight for them, p. 12. 35 Case C-12/11, McDonagh of 31 January 2013, para. 66. 36 Ibid., para. 27. 37 Ibid., para. 29. 38 Recital 16 and art. 9(4) of Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, COM (2013)130 final of 13.03.2013.
ISSN 2184-8793 ISSNe 2975-9056 described above, leading to situations where provided meals are inadequate given the waiting time. An example of such poor practice are vouchers worth EUR 4, which the airline Ryanair allocated to passengers in case of delays exceeding 8 hours.39 Considering the foregoing, the question arises as to whether it would be appropriate to adjust the care based on the cost and type of the airline ticket. Nevertheless, passengers whose flight has a delay or is cancelled are essentially in the same situation and are faced with similar inconveniences, i.e., a loss of time. Therefore, adjusting the extent of care based on the type of ticket would not be appropriate and would place passengers in unequal position. d. Right to reimbursement or re-routing When a passenger's boarding is denied or their flight is cancelled, they are allowed to choose between a ticket refund within seven days or re-routing, under comparable transport conditions, which can be done either immediately or at a later time convenient for the passenger.40 Additionally, to the ticket refund, the passenger must also be offered a return flight to the first point of departure, at the earliest opportunity.41 The re-routing must not entail result in additional costs for the passenger, even in the case of an upgrade to a higher class.42 In the event of a delay, the passenger is eligible for cost reimbursement and a return flight to the first point of departure only if the delay lasts at least five hours.43 Re-routing, as a key measure to ensuring the continuation of a passenger's journey, requires active efforts from the airline to seek an alternative flight. This obligation extends beyond exploring alternative flights solely within the scope of its own airline; it must also examine flights offered by other providers.44 This ensures that the passenger reaches the intended destination as soon as possible. Offering alternative flights exclusively from the carrier's own airline can be justified only in two cases. Firstly, when there are no available seats on another flight that would enable the passenger to reach the destination sooner than the next flight of that airline. Secondly, when implementing such a route change would impose a disproportionate burden on the carrier given its current capacities.45 Until recently, it was unclear how tickets purchased through intermediaries would be treated in terms of ticket costs reimbursement. In other words, whether the amount considered would be the one actually received by the airline or the higher amount paid by the passenger to the intermediary. In the Harms46 case, the CJEU clarified that the ticket price considered for cost reimbursement includes the total amount paid by the passenger to the intermediary, meaning that the higher amount is taken into account.47 39https://www.express.co.uk/travel/articles/1217827/Ryanair-flight-delay-Stansted-Italy-compensation-passengercomplaint-twitter (19 January 2024). 40 Art. 8 of the Regulation. 41 Art. 8(1)(a) of the Regulation. 42 Commission Notice – Interpretative Guidelines on Regulation (EC) No 261/2004 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, para. 2.4.2, p. 8. 43 Arts. 6(1)(iii) and 8(1)(a) of the Regulation. 44 Case C-74/19, Transportes Aéreos Portugueses SA of 11 June 2020, para. 59. 45 Ibid., para. 60. 46 Case C-601/17, Dirk Harms of 12 September 2018. 47 Ibid., para. 20.
International Journal of Tourism, Travel and Hospitality Law During the pandemic, the reimbursement of ticket costs proved to be an extreme financial burden for carriers, who were facing a significant number of such claims.48 As a possible solution, many carriers introduced vouchers, often even concealing passengers' right to cost reimbursement.49 Vouchers also gained popularity in national legislations, where some member states introduced them as a mandatory alternative, excluding the option for a cash refund.50 Nevertheless, at the EU level, the option of choice for passengers prevails. Vouchers are only possible under the condition that the passenger agrees to such an arrangement.51 e. Right to compensation Passengers have the right to compensation in case of denied boarding against their will52 and flight cancellations if they are notified less than two weeks before the departure, unless an alternative route is provided in accordance with the Regulation.53 Flight cancellation alone is not sufficient to receive compensation.54 According to the case law of the CJEU, passengers are also entitled to compensation if their flight arrives at the destination with a delay of at least three hours.55 The Regulation specifies the amounts of compensation, namely: 1. EUR 250 for flights up to 1500 km, 2. EUR 400 for flights within the EU over 1500 km and all other flights between 1500 and 3500 km, 3. EUR 600 for other flights not covered in the first two points. This compensation is entirely independent of the actual damage occurred and is a result of the airline's strict liability.56 The Regulation does not clarify whether this provision limits the amount of compensation or if it represents liquidated damages intended to ease the claimant's position by not requiring them to prove the incurred damage.57 The CJEU has clairified that the main purpose of this compensation is to replace the damage expressed in lost time due to flight delays or cancellations.58 It further emphasizes that this compensation does not limit the passenger's ability to claim compensation under national rules or the Montreal Convention.59 Therefore, it is reasonable to conclude that this provision introduces liquidated damages.60 In practice, uncertainties arose regarding whether the compensation should be based on the actual distance travelled, encompassing layovers on connecting flights, or if it should be determined solely 48 Court of Auditors, Special Report 15/2021: Air passenger rights during the COVID-19 pandemic, para. 12, p. 15. 49 Ibid., paras. 28-29, p. 22. 50 https://www.rijksoverheid.nl/documenten/kamerstukken/2020/03/30/aanwijzing-aan-de-ilt-inzake-handhavingverordening-eg-nr-261-2004 (20 January 2024). 51 COMMISSION RECOMMENDATION (EU) 2020/648 of 13 May 2020 on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19 pandemic, para. 1, p. 4. 52 Art. 4(3) of the Regulation. 53 Art. 5(1)(c) of the Regulation. 54 Perriello, 2022, p. 62. 55 Joined cases C-402/07 and C-432/07, Sturgeon of 19 November 2009, para 69. 56 Kranjc, 2015, pp. 1417-1431. 57 Ibid. 58 Joined cases C-402/07 and C-432/07, Sturgeon of 19 November 2009, paras. 52-54. 59 Case C-83/10, Aurora Sousa of 13 October 2011, paras. 38 and 46. 60 Joined cases C-581/10 and C-629/10, Emeka Nelsonz of 23 October 2012, paras. 52 and 74-75.
ISSN 2184-8793 ISSNe 2975-9056 by distance between the departure and the final destination. In the Bossen61 case, the CJEU explained that the calculation only observes the distance between the initial take-off location at the final destination, disregarding connecting flights.62 This ruling alleviates the financial burden on the air carrier by focusing on the primary flight segments. 4. Extraordinary circumstances as a way out for air carriers Extraordinary circumstances serve as an exception to the general rule of compensating passengers for delays or flight cancellations. In recent years, the CJEU has issued numerous rulings that shed light on the evolution of this rule and shape its interpretation. The airline is not obligated to pay compensation under Article 7 if it can prove that the flight cancellation is due to extraordinary circumstances that could not have been avoided even if all appropriate measures had been taken.63 Although the provision explicitly addresses only flight cancellations, this exception also applies to delays,64 but not to denied boarding.65 The Regulation, in recital 14 of its preamble, provides examples of when extraordinary circumstances may occur. These include political instability, adverse weather conditions, security risks, unforeseen technical deficiencies affecting flight safety, as well as strikes affecting the airline's operations. The listed examples do not automatically constitute the existence of extraordinary circumstances and exemption from the obligation to pay compensation. They only represent events that, may potentially lead to such an outcome.66 Due to the ambiguity of what constitutes extraordinary circumstances, the CJEU has developed the following criteria in its practice that should be met for an event to be classified as extraordinary circumstances: 1. The nature or origin of the event should not be inherent in the normal exercise of the activity of the air carrier concerned; and 2. the event is beyond the air carrier's actual control.67 As explained, the above is not sufficient to exempt the carrier from paying compensation; who must also prove the following: 1. The extraordinary circumstances could not have been avoided even if all reasonable measures had been taken; and 2. where such circumstances did arise, the air carrier adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid that situation (without the air carrier being required to make intolerable sacrifices).68 61 Case C-559/16, Bossen of 7 September 2017. 62 Ibid., para. 29. 63 Art. 5(3) of the Regulation. 64 Joined cases C-402/07 and C-432/07, Sturgeon of 19 November 2009, paras. 67 and 69. 65 Case C-22/11, Finnair of 4 October 2012, para. 36. 66 Case C-195/17, Krüsemann of 17 April 2018, para. 34; Pazos, 2021, p. 742. 67 Case C-549/07, Wallentin-Hermann of 22 December 2008, paras. 23, 27 in 34. 68 Case C-74/19, Transportes Aéreos Portugueses of 11 June 2020, paras 36 and 57; Case C-501/17, Germanwings of 4 April 2019, para. 19.
International Journal of Tourism, Travel and Hospitality Law Since extraordinary circumstances represent an exception to the general rule of the air carrier's liability, its interpretation requires a restrictive approach.69 Below is a review of more recent case law from the CJEU providing answers to what events are considered extraordinary circumstances and which are not. 4.1. Technical issues Considering the conditions under which air transport is conducted and the technological complexities of aircraft, air carriers typically encounter various technical malfunctions as an inevitable consequence of their operation.70 Furthermore, due to the frequency of such malfunctions these aircraft undergo rigorous inspections. All these reasons argue in favour of the position that technical issues do not qualify as extraordinary circumstances, especially when discovered during maintenance,71 even if they appear to be unexpected errors.72 Exceptions to this rule are possible when there is damage to the aircraft due to sabotage or terrorist acts or when a hidden manufacturing defect affecting flight safety is discovered while the aircraft is already in use.73 In Germanwings74 the CJEU determined that a tire malfunction caused by a foreign object on the runway is not inherently connected to the regular conduct of the airline activity. Due to specific limitations, such as the take-off and landing speed restrictions imposed on the carrier, and the fact that maintaining the runway is not within the carrier's jurisdiction, it cannot be considered that the carrier had actual control over the incident.75 Consequently, such a malfunction causing a delay can be considered as extraordinary circumstance.76 Often, technical issues are not directly related to a specific aircraft but to the operation of the airport itself. The German Federal Court of Justice faced a claim for compensation from a plaintiff who sought damages from the carrier due to a several-hour malfunction of computer systems at airport check-in counters, preventing the planned departure of the aircraft. In this case, the court found that the airline relied on the technical capacity of the airport, with the airport operator being responsible for the proper functioning and maintenance of technical devices. Technical problems were therefore outside the usual activities of the air carrier, justifying the existence of extraordinary circumstances.77 Associated with this was also the question of whether a fuel spill on the airport runway leading to its closure should be categorized as extraordinary circumstances. In addressing this contentious issue in the Moens78 case, the CJEU applied the above-discussed decision in the case of technical issues in Germanwings. It emphasized that the airline cannot influence a fuel spill on the runway, as its maintenance is not within its jurisdiction, and the decision to close the runway is mandatory and 69 Pazos, 2021, p. 743. 70 Case C-549/07, Wallentin-Hermann of 22 December 2008, para. 24. 71 Ibid. 72 Burke and Molitorisová, 2024, p. 19. 73 Case C-549/07, Wallentin-Hermann of 22 December 2008, paras. 24-26. 74 Case C-501/17, Germanwings of 4 April 2019. 75 Ibid., para. 26. 76 Ibid., paras. 27-28. 77 Judgement of the German Federal Court of Justice, No. X ZR 15/18 of 15 January 2019. 78 Case C-159/18, Moens of 26 June 2019.
ISSN 2184-8793 ISSNe 2975-9056 must be respected.79 Therefore, in this specific case, the closure of the airport runway corresponded to the definition of extraordinary circumstances, provided that the spilled fuel did not originate from the aircraft operated by the carrier for that flight.80 However, to exempt the carrier from liability for damages, it must be proven that extraordinary circumstances could not have been avoided even by taking appropriate measures.81 In this regard, the CJEU followed the reasoning of Advocate General Tanchev, who emphasized that in this case, the airline is in a position where it does not participate in making decisions regarding the management of the runway. Therefore, it cannot seek solutions on its own and must adhere to instructions received from air traffic control.82 4.2. Non-compliance with the rules of the air carrier The behaviour of air passengers is inherently unpredictable, and considering the circumstances in which flights are conducted, it would be unreasonable to expect an air carrier to anticipate and always successfully control inappropriate passengers’ conduct. The case of Transportes Aeros Portugueses83 serves as confirmation, where a pilot was forced to make an unplanned landing due to the inappropriate behaviour of one passenger who physically attacked a fellow passenger and airline personnel. The unscheduled stop resulted in a delay, causing one passenger to miss a connecting flight. The CJEU, in its reasoning, took the position that such passenger behaviour is not inherently linked to the normal activities of the specific air carrier and can pose a danger to the flight's execution.84 The airline has limited means to control such passengers, and it has no control over such outbursts.85 For these reasons, the conclusion was reached that extraordinary circumstances were present. On the other hand, it is crucial to distinguish events where the air carrier itself contributed to the disruptive behaviour of the passenger or where such behaviour was foreseeable, and preventive measures could have been taken by the carrier. Behavioural issues exhibited by a passenger before boarding the plane are indicators that impose a duty on the air carrier to refuse transportation and disembark such individuals. Even if the behaviour is not inherently linked to the carrier's normal activities, the carrier had actual control over such conduct, excluding the possibility of invoking the existence of extraordinary circumstances.86 4.3. COVID-19 as an extraordinary circumstance? Humanity has faced numerous pandemics throughout history - for example, SARS or MERS-CoV, which impacted the air transportation of passengers, but none demanded such stringent measures globally.87 The latter seemingly reinforces the argument that COVID-19 should be classified as extraordinary circumstances as defined by the Regulation. However, the CJEU, contrary to the 79 Ibid., para. 20. 80 Ibid., para. 22. 81 Ibid., para. 25. 82 Opinion of Advocat General Tancheva in case C-159/18, Moens of 19 December 2018, para. 36. 83 Case C-74/19, Transportes Aéreos Portugueses of 11 June 2020. 84 Ibid., paras. 39-41. 85 Ibid., paras. 41-43. 86 Ibid., para. 47. 87 Trimarchi, 2021, pp.145-146.
International Journal of Tourism, Travel and Hospitality Law opinion of Advocate General Sharpston,88 has not established a direct link between the exceptional nature of circumstances and the potential unexpectedness and rarity of events, attributable to the COVID-19 pandemic through its case law. Thus, the unpredictability of an event itself does not necessarily mean that an air carrier will succeed in invoking extraordinary circumstances,89 and such events can still lead to its liability. Therefore, the question of whether to include the pandemic under extraordinary circumstances should be answered on case-by-case basis. The Regulation does not itself address cases where passengers are unable or unwilling to travel and wish to cancel a flight of their own initiative. The course of action depends on the type of ticket and the general terms and conditions of the airline, as some may allow a refund or offer a reservation change.90 Carriers sometimes provide vouchers or credits to passengers in such situations, but this needs to be distinguished from cases where the carrier cancels the flight itself and only offers a voucher instead of the choice between a refund and a change of route.91 The pandemic has also affected the availability of staff for individual flights, which can be attributed to the rapid spread of the disease, the increasing number of infections, and the requirements for isolating individuals who have been in contact with the infected. Flight cancellations have often occurred due to a shortage of staff, raising the question, both in theory and in practice, of whether this can be attributed to extraordinary circumstances. A potential solution might lie in the existing case law of the CJEU, suggesting that a shortage of airline staff does not qualify as extraordinary circumstances. Two cases in that regard should be pointed out, namely Krüsemann92 and Airhelp93, both invloving a strike by airline staff leading to their absence from work. In both cases, the CJEU assessed whether a strike causing employees not to perform their duties constituted extraordinary circumstances. The aforementioned rulings do not explicitly address whether a shortage of staff itself falls under extraordinary circumstances. Instead, the CJEU focused on whether a strike fulfills those criteria, making the actual situations in both cases significantly different from a staff shortage due to COVID-19 infection. In other words, disagreements between employees and employers in the form of strikes are a risk that each employer must consider and are inherent in the relationship between employees and the employer. This, however, cannot be asserted for a pandemic. Consequently, the analogous application of this case law is not suitable, and it does not provide an answer on how to handle cases of mass infection of airline staff. Instead, the opinion of Advocate General Tanchev in the Krüsemann case should be taken into consideration, where it was emphasized that the mass absence from work due to a pandemic or other public health emergencies is not inherently linked to the normal operations of air carriers and is beyond the carrier's actual control. Therefore, it constitutes extraordinary circumstances within the meaning of Article 5(3) of the Regulation.94 It is essential to distinguish between health conditions during a pandemic and the regulation of sick leave in an ordinarily healthy community. 88 Opinion of Advocat General Sharpston in case C-396/06, Kramme of 27 September 2007, paras. 58-59. 89 Perriello, 2022, p. 64. 90 Commission Notice, Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19, para. 2.2., p. 2. 91 Ibid. 92 Case C-195/17, Krüsemann of 17 April 2018. 93 Case C-28/20, Airhelp of 23 March 2021. 94 Opinion of Advocat General Tancheva in case C-195/17, Krüsemann of 12 April 2018, paras. 50-51.
ISSN 2184-8793 ISSNe 2975-9056 Sick leaves of this nature are inherent to the operations of air carriers, thus not constituting extraordinary circumstances.95 During the outbreak of COVID-19 the European Commission issued an interpretative guidelines to help with the interpretation of Regulation 261/2004. According to the latter when public authorities adopt measures intended to prevent the spread of the COVID-19, 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. Nevertheless, it has been confirmed by the CJEU that the outbreak of the COVID-19 posed a significant health risk not only in the travel destination in question but worldwide. The CJEU addressed this in the UFC case96 that is linked to package travel, however the reasoning can be applied to the interpretation of Regulation 261/2004 as well. 5. Concluding thoughts and guidelines for the future The development in the field of tourism and travel in the EU has led to the adoption of measures to ensure a minimum level of passenger protection in air transport. Although the rights are covered by a regulation intended unify provisions of protection in this area, in practice, this has not been fully realized. Numerous provisions in the Regulation allow for various interpretations, and the definitions of terms are sometimes incomplete or lacking. The outbreak of the COVID-19 pandemic in recent years has posed an additional challenge, rendering air transport impossible for a certain period. The consequences were felt across all major areas covered by the regulation, i.e., flight cancellations, delays, and denied boarding. The uncertainties associated with the rapid spread of the disease increased the number of cancelled flights, increasing the number of compensation claims from passengers. In the light of the ongoing economic crisis reflecting in the continuous rise in fuel prices, there is a growing need to consider the interests of the air carriers. The crisis particularly threatens lowcost carriers and their market position. The significant financial burden, either in terms of compensations or the services carriers must provide regardless of the existence and duration of extraordinary circumstances, could be fatal for many. Financial instability and resulting bankruptcy proceedings would not only further hinder passengers in receiving compensation but also force carriers to exit the market, reducing travel options, especially for the lower-income population. The solution that carriers can resort to in these situations lies in the institute of extraordinary circumstances, which, as an exception to the general rule of carriers’ liability, may exempt them from paying compensation in the case of flight delays or cancellations. The occurrence of extraordinary circumstances is not inherently evident, as indicated by the extensive case law of the CJEU. A broad definition of the institute in the Regulation, linked with the absence of more precise criteria for its existence, is insufficient to address cases that have arisen in practice. This creates an opportunity for air carriers to overly rely on this exception, transforming it from an exception into a de facto rule. The Regulation and the CJEU's case law strive for the highest level of passenger rights protection, often overshadowing the position of carriers. The overload, both financially and organizationally, imposed on air carriers by such an approach is the core reason why carriers often intentionally 95 Ibid. 96 Case C-407/21, UFC of 8 June 2023, para. 51.
International Journal of Tourism, Travel and Hospitality Law disregard the provisions of the Regulation. During the pandemic, carriers even concealed passengers' rights regarding ticket cost reimbursement and imposed vouchers on them since they were unable to provide refunds in monetary form. Although the regulatory framework in this area is designed in dubio pro consumatore, interpreting rights and obligations should consider the fact that the goals of the Regulation are achievable only through the active participation of air carriers. Consequently, the broad interpretation of passengers' rights as a trend, shaped through CJEU's case law, should not be equated with the effective realization of these rights.
ISSN 2184-8793 ISSNe 2975-9056 List of references Journal articles, online sources, and websites: Andrea, T. (2021) ‘EU Air Transport and COVID-19 - Status Quo, Recent Trends and Regulatory Reactions’, Zeitschrift für Luft- und Weltraumrecht, 70. Jg. 1/2021, pp. 34-51. Burke, C., Molitorisová, A. ‘Some Birds Fly High: The Disappearance of Force Majeure Doctrine in European Aviation Tort Law’ [online]. Available at: https://ssrn.com/abstract=2916183 (Accessed 20 January 2024). Letter to Parliament instructing ILT in enforcement of Regulation [online]. Avaliable at: https://www.rijksoverheid.nl/documenten/kamerstukken/2020/03/30/aanwijzing-aan-de-iltinzake-handhaving-verordening-eg-nr-261-2004 (Accessed 20 January 2024). Luca, P. (2022) ‘Air Passenger Rights in Times of Pandemic, Between Extraordinary Cancellations, Denied Reimbursements and Forced Vouchers’, Journal of European Consumer and Mrket Law, 2/2022, pp. 61-66. Luzak, J. A. ‘European Private Law: Up in the Air?’, Amsterdam Law School Research Paper, 3/2015 [online]. Available at: https://ssrn.com/abstract=2560234 (Accessed 20 January 2024). Ricardo, P. (2021) ‘The Extraordinary Circumstances Defence in Regulation (EC) 261/2004’, Air and Space Law, 46(2021), 6, pp. 739 – 762. Robinson, A. (2019) Passenger fury over Ryanair £3 vouchers after lenghty delay – what is compensation law? [online]. Avaliable at: https://www.express.co.uk/travel/articles/1217827/Ryanair-flight-delayStansted-Italy-compensation-passenger-complaint-twitter (Accessed 19 January 2024). Tania, T. (2020) ‘I know I know nothing: Extraordinary Circumstances in Air Passenger Rights Regulation’, European Review of Private Law, 28(2020), 5, pp. 1093-1112. Vesna, K. (2015) ‘Obveznosti letalskega prevoznika ob kršitvah pri prevozu potnikov’, Podjetje in delo, 41, pp. 1417-1431. Legal sources of the European Union: Commission Notice – Interpretative Guidelines on Regulation (EC) No 261/2004 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, Official Journal C 214 , 15/06/2016 p. 5-21. Commission Notice, Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19, Official Journal C 89I, 18/03/2020 p. 1-8. 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
International Journal of Tourism, Travel and Hospitality Law amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council, Official Journal C 214, 15/06/2016, p. 5-21. Commission Recommendation (EU) 2020/648 of 13 May 2020 on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19 pandemic, Official Journal L 151, 14/05/2020 p. 10-16. Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a deniedboarding compensation system in scheduled air transport, Official Journal L 036, 08/02/1991 p. 0005 – 0007. Court of Auditors, Special Report 15/2021: Air passenger rights during the COVID-19 pandemic. Court of Auditors, Special Report 30/2018: EU passenger rights are comprehensive, but passengers still need to fight for them. Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EC) No 261/2004, (EC) No 1107/2006, (EU) No 1177/2010, (EU) No 181/2011 and (EU) 2021/782 as regards enforcement of passenger rights in the Union of 29 November 2023. Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, COM (2013)130 final of 13.03.2013. 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 (Text with EEA relevance), Official Journal L 046, 17/02/2004 p. 0001 – 0008. Decisions of the CJEU and Advocate General’s opinions: Joined cases C-146/20, C-188/20, C-196/20 in C-270/20, Eurowings of 21 December 2021. Judgement of the German Federal Court of Justice, No. X ZR 15/18 of 15 January 2019. Opinion of Advocat General Tancheva in case C-159/18, Moens of 19 December 2018. Opinion of Advocat General Tancheva in case C-195/17, Krüsemann of 12 April 2018. Opinion of Advocat General Sharpston in case C-396/06, Kramme of 27 September 2007. Opinion of Advocat General Sharpston in case C-83/10, Aurora Sousa of 28 June 2011. Joined cases C-581/10 and C-629/10, Emeka Nelsonz of 23 October 2012. Case C-549/07, Wallentin-Hermann of 22 December 2008. Joined cases C-402/07 and C-432/07, Sturgeon of 19 November 2009.
ISSN 2184-8793 ISSNe 2975-9056 Case C-83/10, Aurora Sousa of 13 October 2011. Case C-22/11, Finnair of 4 October 2012. Case C-12/11, McDonagh of 31 January 2013. Case C-11/11, Air France SA of 26 February 2013. Case C-559/16, Bossen of 7 September 2017. Case C-195/17, Krüsemann of 17 April 2018. Case C-601/17, Dirk Harms of 12 September 2018. Case C-501/17, Germanwings of 4 April 2019. Case C-159/18, Moens of 26 June 2019. Case C-74/19, Transportes Aéreos Portugueses SA of 11 June 2020. Case C-28/20, Airhelp of 23 March 2021. Case C-826/19, Austrian Airlines AG of 22 April 2021. Case C-407/21, UFC of 8 June 2023.
Contact Estoril Higher Institute for Tourism and Hotel Studies carlos.torres@eshte.pt www.tourismlaw.pt IJTTHL Celebrating five years of the first publication Vincenzo Franceschelli, On Tourism Law | Quest for general principles, https://fles.tourismlaw.pt/On-Tourism-Law-Quest-for-generalprinciples/ Alejandro Corral Sastre, A new Administrative Law for a new Tourism: now or never, https://fles.tourismlaw.pt/A-new-AdministrativeLaw-for-a-new-Tourism-by-Alejandro-Corral-Sastre-/ Jonas Thyberg, The Package Travel Act and the Covid19 pandemic, https://fles.tourismlaw.pt/The-Package-Travel-Act-and-the-Covid19pandemic-by-Jonas-Thyberg/ Caterina del Federico, The use of artifcial intelligence in the travel and hospitality industry. Civil liability profles, https://fles.tourismlaw.pt/The-use-of-artifcial-intelligence-in-the-travel-and-hospitalityindustry.--Civil-liability-profles "We are celebrating the 500 anniversary of the discovery of the Magellan strait with two online publications. On October 21, the launch of Derecho del Turismo en Las Américas brought together colleagues from all Latin American countries. On the same day, the Collective Commentary about the New Package Travel Directive, with colleagues from the then 28 Member States. More recently, Competition Law in Tourism and Tourism Law in Europe are publications demonstrating this group's dynamism. The pandemic has not broken the bonds that have united and unite us. Here we are again here in Lisbon, more numerous and more motivated than ever, to consecrate what will be the voice of our group: The new international journal of Tourism Law, The International Journal of Tourism, Travel and Hospitality Law.” • Vincenzo Franceschelli, The Lisbon Group and International Tourism Law Five years after the frst international publication (The New Package Travel Directive, October 2017) at the ESHTE | INATEL International Conference in October 2022, bringing together 50 speakers from 27 countries, a new project was announced: The International Journal of Tourism, Travel and Hospitality Law (IJTTHL). IJTTHL brings together several universities and is published both in print and online. The central part will be in English but will have an IberoAmerican chapter, and the texts are immediately available through Pre-Print. Monika Jurkova, Liability of online platforms in the tourism sector, https:// fles.tourismlaw.pt/Liability-of-online-platforms-in-tourism-sector-Monika-Jurkova/ Francesco Torchia, Tourism enterprise and cultural heritage protection, as a legal instrument for valorization of the territory and of the person, https:// fles.tourismlaw.pt/Tourism-Enterprise-and-Cultural-Heritage-protection,-as-a-legal-for-valorization-of-the-Territory-and-ofthe-Person-by-Francesco-Torchia/ Valérie Augros, Holiday lettings in France: tips and tricks, https://fles.tourismlaw.pt/ Holidays-lettings-in-France---Tips-and-tricks-by-V.-Augros/ Sarah Prager, Competition law: online travel agents and airlines, https:// fles.tourismlaw.pt/Sarah-Prager,--Competition-Law---OTAs-and-airlines/ Andrej Micovic, Legal Tech and Online Dispute Resolution, https://fles.tourismlaw.pt/ Microsoft-Word---A.-Micovic---Legal-Tech-and-ODR-in-Tourism./ Pilar Juana Garcia Saura, The inspection of tourist accommodation by Public Administrations: problems with the use of the robot inspector (web spider) and the responsibility of collaborative platforms, https://fles.tourismlaw.pt/Collaborativeplatforms-in-accommodation-by-Pilar-Saura/ Michael Wukoschitz, A Wicked Deed’s Curse – Will X v Kuoni change the Organiser’s Liability?, https://fles.tourismlaw.pt/Will-X-v-Kuoni-change-the-organisers-liability,---M.-Wukoschitz/ Bertold Bär-Bouyssiere, Sustainability and Article 101(1) TFEU, Exploring (almost) virgin territory, https://fles.tourismlaw.pt/Sustainability-considerations-and-Article-101-TFEU/ Tatjana Josipovic, Modernisation of information requirements for consumers on online tourism services market, https://fles.tourismlaw.pt/Modernisation-of--informationrequirements-for-consumers-on-online-tourism-services-market-by-Tatjana-Josipovic/ Matija Damjan, The new online platform rules and the accommodation booking services, https://fles.tourismlaw.pt/The-new-online-platform-rules-and-the-accommodation-bookingservices-by-Matija-Damjan/ Ilie Dumitru, EU legislation and contractual relationship between the travel package organizer and the air carrier in case of charter fights. Liability for cancelled and delayed charter fights, https://fles.tourismlaw.pt/EU-legislation-and-contractualrelationship-between-the-travel-package-organizer-and-the-air-carrier-in-case-of-charter-fights.-Liability-for-cancelled-anddelayed-charter-fights-by-Ilie-Dumitru-IJTTHL-PRE-PRINT/ João Almeida Vidal, Arbitration and tourism: a feld to explore, https:// fles.tourismlaw.pt/Arbitration-and-tourism--a-feld-to-explore-by-Joao-Vidal/ https://fles.tourismlaw.pt/International-Journal-ofTourism,-Travel-and-Hospitality-Law2023/
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