COVID-19 has been merciless. Related travel restrictions have meant the cancellation of thousands of flights worldwide, affecting millions of passengers. Recently, social media was astir amid reports that locally, flight operators were suddenly refusing to refund passengers even after refunds were promised, and were instead offering travel vouchers and/or refunds possibly in a year’s time, if at all.
Flight cancellations, whether outbound from, or inbound to, Malta (even if from outside the EU as long as with an EU flight operator) are regulated by EU law, specifically Regulation (EC) No. 261/2004. The general principle is that a passenger who has a legitimate expectation to travel, as booked, paid and on schedule, should not be inconvenienced as far as possible, and in the event of inconvenience, should be compensated and awarded options favourable to him/her with respect to cancellation and reimbursement, or re-routing.
For most readers, COVID-19 cancellations meant the cancellation of holiday plans or business travel with Malta as the point of departure. However, passengers should not be entitled to compensation beyond the price of their ticket this time round, as COVID-19 is certainly the exceptional circumstance envisaged at law that nobody could have predicted and which will exempt airlines from further compensation. For most people, the real deal simply boils down to what will happen to the money they paid the airline.
For the benefit of such passengers, if a flight is, or was, cancelled, the airline concerned has to offer the passenger either:
Reimbursement of the full price payable within seven days, and if already in transit, a return flight to the passenger’s point of origin.
Re-routing, under comparable conditions, to the final destination at the earliest opportunity.
Re-routing, under comparable conditions at a later date but at passenger convenience, subject to seat availability.
The airline cannot oblige the passenger to accept travel vouchers as reimbursement
Further rights for cancelled flights may not be necessarily applicable to most readers in COVID-19 circumstances, but for the benefit of those who were caught stranded at an airport in the EU, or in transit when their flights were cancelled, if the passenger is forced to wait at the airport until taken care of, or while waiting to be rerouted, he/she is entitled to:
1. Free meals and refreshments in a reasonable relation to waiting time;
2. Two telephone calls, fax messages or e-mails, free of charge;
3. If the re-routed flight is at least the day after the cancelled flight, hotel accommodation and transport between the airport and the hotel.
In other circumstances, the passenger would be additionally entitled to compensation ranging from €250-€600, depending on the flight distance, unless notice is given promptly, usually not less than seven days, or waiting time is reasonable, within the limits the law prescribes, or the cancellation is caused by extraordinary circumstances which could not have been avoided, even if reasonable measures were taken. Like COVID-19.
For most people whose holiday or business trip could never start thanks to COVID-19, re-routing is not an option, as government restrictions have closed Malta’s borders indefinitely. The options both the airline and the passenger really have at the moment is effective reimbursement.
A passenger has the right to demand and insist on a refund of the full price paid. The refund can be monetary or even travel vouchers with a fair and reasonable lifespan, and this must be done within a time limit of seven days. As for travel vouchers, it must be made clear, however, that although the airline can try to reimburse the passenger with travel vouchers of equivalent value, this can only happen if the passenger agrees to it, in writing. The airline cannot oblige the passenger to accept travel vouchers as reimbursement.
The EU Commission Interpretative Guidelines on EU Passenger Rights Regulations in the Context of the Developing Situation with COVID-19, published on March 18, 2020, leaves no doubt that the law shall apply even in these exceptional times. There is no derogation from the law. After all, the airline has taken money for a service it did not give. It is, therefore, unacceptable for an airline, for example, when reimbursement is issued, to impose the type of reimbursement or for how long a travel voucher is valid, if this option is availed of. The passenger must always be favoured unless the law exempts the airline or otherwise restricts such favour.
Given that these are exceptional circumstances, it is up to the passenger whether to allow the airline more time than the statutory seven days for reimbursement. These are, after all, exceptional times. It is also up to the individual passenger, to decide according to his/her circumstances, whether a monetary refund or a travel voucher is acceptable. However, if reader is finding the airline not to be co-operative, or is in breach of passenger rights, do not hesitate to seek professional advice.
The choice belongs to the passenger.
This article is not intended to constitute legal advice. If you are a passenger whose flight has been cancelled due to COVID-19 and are in doubt of where you legally stand, please contact us via our website www.refalo.legal or e-mail on info@refalo.legal or phone on 2122 3515.
James D’Agostino, Senior associate of Refalo Advocates