Airlines operating in the UK need to comply with a range of consumer law, some of which applies specifically to aviation and some which applies generally to all businesses. This includes legislation relating to price transparency, passenger rights during flight disruption, access to air travel for passengers with reduced mobility, unfair contract terms and requirements to trade fairly.
Please see below for information on legal requirements and the CAA’s enforcement powers.
Interpretative Guidelines have been published to clarify the existing rules and facilitate their application on assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
Guidance on the application of Regulation (EU) No 261/2004 as retained (and amended in UK domestic law) under the European Union (Withdrawal) Act 2018 in the context of Covid-19
We recognise that this is a very challenging time for airlines and passengers. We believe it would be helpful for us, as the UK’s National Enforcement Body, to clarify how we are currently interpreting certain aspects of UK (EU) Reg No 261/2004 that apply to compensation rights that passengers have during disruption caused by the Covid-19 outbreak.
UK (EU) Reg No 261/2004 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:
- a refund; or
- re-routing (alternative flights) at the earliest opportunity; or
- re-routing at a later date (subject to availability).
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. We recognise 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.
UK (EU) Reg No 261/2004 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 we are experiencing in aviation due to Covid-19, and although each case would need to be considered on its own merits and the relevant facts, we consider that the following circumstances would be viewed as extraordinary circumstances and therefore the fixed sum compensation would, in our view, not be payable:
- Where the Government advises against all travel, or all but essential travel, to a destination.
- For cancellations or long delays impacted by Covid-19 in other circumstances that are not inherent in the operation of the airline and beyond its control. Such circumstances could include those where there is no Government advice against travel, but where disruption has been directly caused by activities of regulatory authorities or other third parties related to Covid-19, for example closing airspace to the airline, seriously restricting the airline’s operations in other ways, or where the corresponding movement of persons is not entirely prohibited, but limited to persons benefitting from exemptions (for example nationals or residents of the state concerned).
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 UK (EU) Reg No 261/2004 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, we are cognisant of the challenging operating conditions that airlines are currently facing and we expect airlines to act in a way which best serves the interests of their customers. On this basis, we 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 UK Government, and taking into account the practical impact on both airlines and passengers.