Can I claim EU261 compensation if my flight was delayed or cancelled because of coronavirus?

Mar 19, 2020

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On Wednesday, 18 March, the European Commission released guidelines on EU passenger rights regulations in the context of the ongoing coronavirus pandemic, which shows no sign of slowing down. Specifically, as part of the memo, the Commission covered what passengers rights are especially in respect to delays and cancellations.

READ MORE: TPG’s hub page for coronavirus coverage

What better opportunity to dust off my lawyer hat and engage the part of my brain that studied European Union law in 2005. For those who have had their travel plans disrupted, and are likely to experience disruption in the coming weeks and months, here is what you can expect in terms of what you’re entitled to with the Commission’s interpretive guidelines.

Air passenger rights under existing policy

First of all, let’s take a brief look at the current situation. Already in place is regulation EC No 261/2004, commonly known as “EU261”, which establishes rules on compensation and assistance to passengers in the event of denied boarding, cancellation or long flight delays.

The longstanding regulation applies to the following:

  • Flights wholly within the EU and operated by any airline;
  • Flights departing from the EU to a non-EU country and operated by any airline; and
  • Flights arriving in the EU from outside the EU and operated by an EU airline.

Cancellation

If your flight is cancelled you have the right to reimbursement, re-routing or return, as well as the right to assistance and a right to compensation. Compensation may be due if you were informed of the cancellation less than 14 days prior to the scheduled departure date.

However, compensation is not due if the carrier can prove that the cancellation was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.

Delay

If your flight is delayed at departure, you have the right to assistance, reimbursement and a return flight, depending on the duration of the delay and the distance of the flight.

If you arrived at your final destination with a delay of more than three hours, you are entitled to compensation, unless the delay was due to extraordinary circumstances.

There are also further provisions for denied boarding, upgrades and downgrades and flight overbooking.

EU261 during the coronavirus outbreak

There are two key issues to look at during the current situation caused by the coronavirus. The first issue has to do with cancellations and second, situations where passengers cannot travel or want to cancel a trip themselves.

In relation to the latter, if a passenger decides to cancel or they cannot travel, unfortunately, the amended regulations will not help them. Rebooking, changes and refunds are all down to the individual airline’s policy and ticket type. Many airlines are offering vouchers, which is acceptable if the flight is still going ahead. But if you were hoping for a refund via EU protections, you are probably out of luck.

The situation is starkly different if the airline cancels your flight. Let’s take a look at the rights you have as a passenger who has a flight cancelled by the airline. These rights are broken down into the following categories: reimbursement, re-routing, the right to assistance and compensation.

Reimbursement or re-routing

Before reading further, note that you can choose either reimbursement or rerouting. And if you take the reimbursement, you waive your right to assistance (more on that below).

Regardless of the cause of the cancellation, the airline must offer a full refund, re-routing at the earliest opportunity or re-routing at a later date at the passenger’s convenience.

If a passenger books an outbound and return flight separately and the outbound is cancelled, they can only get a refund for the cancelled flight. If the outbound and return flights are on the same booking, the passenger is eligible for a full refund for the whole ticket or to be re-routed for the outbound flight.

When it comes to the “earliest opportunity”, obviously this could mean a huge delay in these unpredictable times. Airlines are obliged to inform passengers on the uncertainties related to choosing re-routing instead of a refund.

Right to assistance

Even if a cancellation is due to extraordinary circumstances, passengers affected by a cancelled flight must be offered care free of charge, including:

  • Meals and refreshments;
  • Hotel accommodation; and
  • Transport to the place of accommodation.

The right to assistance lasts as long as a passenger has to wait for a re-routing. This could potentially be for a long time due to the current crisis, but the guidance clarifies that the price of the ticket or the length of the inconvenience suffered must not interfere with this right to care.

Remember that if you opt for a full refund, your right to care and assistance ends.

Compensation

Fixed sum compensation is due under some circumstances but does not apply where cancellations are made more than 14 days in advance or where the delay is caused by extraordinary circumstances.

The European Commission has stated that cancellations due to measures by public authorities intended to contain the pandemic, to protect the health of crew or even for the reason that flights would otherwise depart empty all fall under the “extraordinary circumstances” definition.

This means that almost all cancellations as a result of COVID-19 will, unfortunately, rule passengers ineligible for compensation from airlines.

Bottom line

If your flight gets cancelled by an airline, EU261 will still work for you in the applicable situations to ensure you get a refund, get re-routed or get looked after (even if you are stuck at a destination for a significant period of time). EU261 will not help with additional compensation if the cancellation was related to coronavirus, and nor will it help if you decide to cancel your trip yourself (whether by choice or forced by factors such as border restrictions). In these cases, you will need to look to individual airline policies or your insurance provider.

Featured photo by Zhang Cheng/Xinhua via Getty

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