UK: Aviation briefing - Volcanic ash, flight disruptions and airlines’ obligations

The closure of airspace in the UK and northern Europe with effect from 15 April has caused severe problems for airlines and passengers, on a worldwide basis, and there appears to be a serious threat of its continuing, at least on an intermittent basis, for some time. As a result EU Regulation 261/2004 is imposing significant unforeseen burdens on airlines.

No compensation – extraordinary circumstances

At least it is clear that airlines are not obliged to pay the fixed rates of compensation prescribed by the Regulation in case of cancellation of flights, as these are "extraordinary circumstances" if ever there were any. The EU Transport Commissioner has confirmed this.

The "extraordinary circumstances" exception is not specified to apply to the other obligations imposed by the Regulation, and it seems unlikely that courts would be willing to interpret the Regulation in this way, given their approach to it generally so far. However, this is not entirely unthinkable given the truly extraordinary and unprecedented nature of the circumstances, and perhaps the Sturgeon precedent of re-writing the Regulation could even be used to beneficial effect for airlines! What follows should be read subject to this possibility.


Equally clear from the Regulation is that airlines have to reimburse passengers the full cost of the ticket (in respect of EU-originating flights) if they choose not to take a later flight. Airlines may also be faced with potentially expensive claims for refunds in respect of parts of the passenger's journey already completed if the rest of the journey no longer serves any purpose in relation to the passenger's original travel plan – a provision of the Regulation which has up till now not been much invoked or tested.

Return flights

Another right which has not been frequently invoked is the passenger's right to a return flight to the first point of departure where the passenger chooses reimbursement rather than re-routing, as passengers often wish to continue with their journey, even if later. However, this may not be the case with connecting passengers on multi-sector flights in the present circumstances. Re-routing The scope of the obligation on airlines to offer re-routing to passengers whose flights from EU airports are cancelled has never been entirely clear. It is even less so in the current circumstances, when the normal re-routing options are not available (except in the few cases of short haul routes where there may be an acceptable surface transport option). When flights resume, difficult questions will arise about the need to put on additional flights, the need to book passengers on other airlines and the need to offer, and the acceptability of, indirect routings, and also about the order of priority that should be given to passengers.

Hotel accommodation

One of the Regulation's normally less onerous obligations on airlines – to provide hotel accommodation where necessary in the case of cancellations and delays of flights from EU airports – has taken on an unexpected significance with passengers being stranded away from home, particularly when on connecting flights, while awaiting being re-routed. The Regulation does not prescribe any time limitation on this obligation, and it is difficult to see any way in which a limit may be imposed on it, even if it can be argued that the contract of carriage has come to an end, unless courts are willing to imply an extraordinary circumstances exception, or a 7 day time limit in view of the requirement for reimbursement to be made within 7 days, or there is an emergency legislative amendment, which seems an unlikely prospect. Obviously, passengers should be notified of cancellations in advance where possible, but this is likely to mitigate obligations only to a limited extent.

Flights from non-EU/EEA airports

Flights from other parts of the world to airports in Northern Europe have also suffered cancellations.

As regards EU/EEA airlines, the EU Regulation applies also in respect of flights operated by them into the EU/EEA from non-EU/EEA countries unless the passengers "received benefits or compensation and were given assistance" in that country. The meaning of these words is somewhat unclear, but EU/EEA airlines may provoke claims if they give passengers on such flights any lesser benefits than those required by the Regulation.

As regards non-EU/EEA airlines, the Regulation only applies in respect of flights operated by them from EU airports. This applies to passengers on codesharing flights operated by a non-EU/EEA airline, even where the contracting/marketing carrier is an EU/EEA airline, but the codesharing agreement may contain provisions which are relevant as between the two airlines.

Non-EU/EEA airlines' obligations in respect of such flights depend on any relevant local laws, on flight cancellations specifically and contract generally. Airlines should also check their Conditions of Carriage to see whether they contain any provisions applicable to the situation.

Cancellation or delay

Whether flights are considered cancelled or delayed should be of no practical consequence as far as the Regulation is concerned, and as regards claims for delay under the Montreal Convention an airline has a defence if it can show that it took all reasonable measures to avoid the damage, or that it was impossible to do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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