One of the questions that airlines must now ask themselves is whether the compensation (“EU261 compensation”) provided for in Article 7 of Regulation No 261/2004 (“Regulation EU261”) is due in the event of cancellation or delay of more than 3 hours related to Covid-19.
The right to EU261 compensation does not apply to cancellations made at least two weeks before the scheduled time of departure of the flight or where the cancellation or the delay of more than 3 hours is caused by an “extraordinary circumstances” which could not have been avoided even if all reasonable measures had been taken.
On 18 March, the European Commission has published interpretative guidelines on EU passengers rights in the context of the developing Covid-19 situation (https://ec.europa.eu/transport/sites/transport/files/legislation/c20201830.pdf). According to these guidelines the following Covid-19 related events may be qualified as “extraordinary circumstances” which could not have been avoided even if all reasonable measures had been taken :
- “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”;
- “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”;
- depending on the circumstances, with regard to “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”.
According to the European Commission the above-mentioned list is not exhaustive and other specific circumstances related to Covid-19 may also be qualified as an “extraordinary circumstance” which could not have been avoided even if all reasonable measures had been taken. Thus, all delays of more than 3 hours due to protective measures against coronavirus such as taking the temperature of passengers, managing a passenger suspected of being a coronavirus carrier should also be considered as “extraordinary circumstances” which could not have been avoided even if all reasonable measures had been taken.
Although these guidelines are not binding, it is hoped that they will help to avoid divergent interpretations of these events between the different courts and tribunals of the member states. Moreover, it cannot be excluded that the Court of Justice of the European Union will one day have to rule on the right to EU 261 compensation in the event of cancellations or delays related to Covid-19.
Written by Charles Price (firstname.lastname@example.org) & Sébastien Popijn (email@example.com).
 The right to the EU261 compensation also does not apply for cancellations made below these two weeks if the air carrier offers re-routing with departure and arrival times specified in Article 5, C) of Regulation EU261.