CAA Guidance on Regulation EC261 and covid-19

20th July 2020 by Vincent Gumera

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The CAA recognise that this is a very challenging time for airlines and passengers. The CAA believe it would be helpful for us, as the UK’s National Enforcement Body, to clarify how the CAA are currently interpreting certain aspects of European Regulation EC261/2004 that apply to compensation rights that passengers have during disruption caused by the Covid-19 outbreak.

On 18 March 2020 the European Commission published guidance on the application of Regulation EC261/2004 during the Covid-19 outbreak. The CAA have therefore updated our guidance to reflect the Commission’s view.

Regulation EC261/2004 provides important rights to passengers applicable at all times, including during the current unprecedented situation. Where flights are cancelled or there are long delays, airlines are required to assist passengers by providing information on their rights and providing care and assistance during the disruption such as providing meals, allowing for passengers to communicate messages, and providing hotel accommodation (and transfers to and from the hotel) for overnight delays.

Where flights are cancelled passengers must be offered the choice of:

It is important that airlines assist passengers by clearly setting out these options to them. In addition, it is open to airlines to offer incentives to passengers to encourage them to fly at a later date, for example through providing vouchers of a higher value. The CAA recognises that in the current operating environment there may be significant practical difficulties in airlines providing alternative flights, for example, where government advice is to avoid travel to particular destinations. A refund for the passenger may therefore be the only practical option available.

Regulation EC261/2004 also provides for fixed sum compensation in some circumstances. However, this does not apply for cancellations made more than 14 days in advance or where the cancellation is due to ‘extraordinary circumstances’.
Given the unprecedented situation the CAA is experiencing in aviation due to Covid-19, and although each case would need to be considered on its own merits and the relevant facts, the CAA considers that the following circumstances would be viewed as extraordinary circumstances and therefore the fixed sum compensation would, in our view, not be payable:

There may be other circumstances where airlines seek to cancel flights within the 14 day period due to the economic and environmental consequences of operating flights with only a small number of passengers on board. Such circumstances could arise as a result of restrictions applied within the country of destination, for example restrictions on movement within the country (e.g. lockdown/shutdown measures implemented by the local or national government) as well as restrictions on access to local services that are critical for non-residents (e.g. hotel closures, restaurant closures, etc), which will have affected whether passengers take their flights. Such circumstances may be viewed as extraordinary circumstances under Regulation EC261/2004 and therefore the fixed sum compensation would not be payable, but this may not be the case in all circumstances.

Where a flight is cancelled and the airline can demonstrate 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).

The CAA takes a proportionate approach to enforcement and focuses its resources on systematic issues of non-compliance that substantially harm the interests of passengers. In assessing compliance, the CAA is cognisant of the challenging operating conditions that airlines are currently facing and the CAA expects airlines to act in a way which best serves the interests of their customers. On this basis, the CAA will look to airlines to demonstrate that they are being proactive and flexible in managing the situation and minimising the impact on passengers of the disruption.

Please note that the CAA’s interpretation of extraordinary circumstances set out above is illustrative and for guidance only, rather than determinative of our view in any specific case that may arise. Each case will be context and fact specific. It should also be recognised that should a passenger or group of passengers disagree with the CAA’s interpretation in a specific case, it is open to them to seek to enforce their rights through the courts.

The CAA reserves the right to withdraw, update or amend this statement in light of developments, including further guidance from the European Commission or the UK Government, and taking into account the practical impact on both airlines and passengers.

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