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.
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