The World Health Organization’s official announcement of the global COVID-19 Pandemic on March 11, 2020 has created major fluctuations in economic and commercial activities and in all aspects of life in general. The air transport sector was on the top of the list of sectors most severely affected by the pandemic. Rapid spread of the outbreak across the world and the fact that countries closed their air and land borders to try to protect their citizens caused cancellations in almost all domestic and international flights and plunged the aviation industry into an unprecedented crisis. Hundreds of aircraft were grounded, left in stationary positions while the vast airline networks that were built with great effort quickly collapsed, resulting in the loss of millions of US dollars. The spread of the virus across the globe prompted widespread flight cancellations, unpaid leave and layoffs in the civil air transport industry. Concepts established after much effort and lengthy processes such as passenger rights started to become invalidated one by one. 

During normal times, around 11 million people and 140,000 tons of cargo traveled by air every day. The skies above Europe’s largest airport hubs have not been so clear and empty since 9/11 and the volcanic ash cloud in April 2010 from the eruptions of Eyjafjallajökull, Iceland.  Aircraft have all but vanished from the sky as one third of humanity is now under lockdown.

Business trips and weekend getaways are already distant memories now that our homes are our prisons. The 1-meter social distancing rule has made high density cabin configurations and cramped economy seats inconceivable. Visa free travel and last-minute deals have been replaced by closed borders, travel bans and massive repatriation operations by States. 

Aviation is now living through its darkest hours fighting against an invisible enemy. Maybe people will be afraid to fly until a vaccine or cure is found. Maybe we will see a pandemic of airline bankruptcies. Maybe the coronavirus will speed up the consolidation of the European aviation market. We do not know yet, time will tell. 

The storm will eventually pass, and the air transport sector will emerge into a different world. One thing is certain, aviation will forever remain the business of freedom and will be vital to reconnecting businesses, people and cultures across continents.

Upon the decrease in the impacts of the pandemic and the lifting of travel bans as part of the process of returning to the new normal, aviation businesses and states announced that flights will be executed in accordance with various algorithms and specific flight plans. Still, the new type coronavirus spreads quite rapidly through respiration, and numerous passengers are often close to each other at airports and travel next to each other inside the aircraft. All these aforementioned factors lie in the way of solving the problem, and despite all the measures adopted, the framework of passenger rights in cases of potential contamination during air travel will create additional problems. Civil aviation authorities of countries and airline companies as well as airport operators continue to publicly share a series of measures that are adopted for the protection of passengers and flight crews. Then again, the extent of the effectiveness of these measures is still a huge mystery. 

Even though the issue has many aspects that need to be examined, the first and most critical dimension are Passenger Rights. Article 6 of the "Regulation on Air Passenger Rights" (SHY-Yolcu) promulgated by the Directorate General of Civil Aviation regulates flight cancellations. According to this regulation, passengers shall have the right for compensation in the event that the passengers are not informed of the cancellation by the air transport operator at least two weeks before the planned departure time. Also, the burden of proof regarding whether passengers are informed of the cancellation and when they are informed shall be on the part of the airline company conducting the flight. On the other hand, the airline company shall have no liability in the event that passenger contact information is not provided or provided incorrectly to the operator despite the request of the operator. If the airline company conducting the flight takes all the possible precautions and in cases where it can prove that force majeure causes the cancellation, it shall not be liable to pay any compensation. These rules were applicable in normal conditions and it was based on Regulation (EU) 261/2004. 

The cancellation of flights and relevant decisions that followed due to the epidemic categorized as a pandemic by the World Health Organization (WHO) as part of the measures adopted for preventing the spread of the virus created a brand-new rule. In the event of impossibility of performance due to force majeure, the parties shall not be able to ask for any compensation. 

If the cancellation of a flight was due to force majeure, the obligation of notification within the periods stipulated by the regulation would not be applicable and the airline company would only have to return the ticket price to the passenger. In such cases, when it does not make any sense to complete the undone part or parts of the travel and the travel planned by the passenger, paying all of the ticket price over the price on which the ticket is purchased in cash, via electronic remittance, bank payment orders or banker checks or with the passenger’s written consent, refunding via travel vouchers for the undone part or parts of the travel within maximum seven days; moreover, providing a free return flight which would allow the passenger to return to the first point of origin at the earliest opportunity is essential. 

The aforementioned information on the passengers’ rights to compensation and in cases where airline companies are forced to cancel their flights due to force majeure, are applicable under normal circumstances. However, measures specific to the coronavirus pandemic had to be adopted while new relevant regulations needed to be issued. A provisional clause was included in the Regulation on Air Passenger Rights with Turkey’s Grand National Assembly’s Regulation No 31709 that became effective on March 25, 2020. As per this clause, in the event of flight cancellations, the airline companies shall be exempt from any compensation obligations and passengers’ demands related to their rights of choice until 2 months after the lift of the flight bans. For instance, if the flight on 12.03.2020 was cancelled and the flight ban was lifted on 12.06.2020, the airline companies would be exempt from their liabilities until 06.08.2020. 

Turkey started to refund the tickets without applying any penalty deductions to passengers within two months upon the launch of domestic and international flights. Though this two-month period approach was not implemented by the US, Canada and EU countries, these countries issued vouchers to passengers without their consent, and thus created unjust treatment.

EU citizens brought this implementation to trial and were relieved with the court decisions determining that passengers should not be forced to accept vouchers instead of refunds. 

How can a balance be reached between protecting passenger rights and preventing hecatomb of the airline industry?

Five Canadian airlines have been hit with a proposed class action lawsuit seeking refunds on behalf of passengers who can no longer use the airline tickets they purchased due to COVID-19 travel advisories imposed by the Canadian government.

The representative plaintiff brings this action on her own behalf and on behalf of all persons residing anywhere in the world, who before March 11, 2020 entered into a Contract of Carriage with any of the defendant air carriers for travel on a flight operated by a defendant on a trip that was scheduled to commence between 13 March 2020 until the date the Government of Canada withdraws travel advisories for COVID-19, and have not received a refund in the original form of payment.

Last week, the Canadian Transportation Agency stated that it is appropriate for airlines to provide affected passengers with vouchers or credits for future travel. However, the determinations of the CTA are not legally binding.

The class action has yet to be certified by a court but represents a great danger for airlines as it carries the risk of bringing all Canadian carriers to their knees. Regulation (EU) 2020/696 amending Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community in view of the COVID-19 pandemic was published today.

The regulation amends the air carrier licensing rules in the event of financial problems caused by the COVID-19 pandemic in order to avoid unnecessary administrative burdens. It also introduces derogation to the procedures used by member states to impose traffic rights restrictions to deal with emergencies resulting from unforeseeable and unavoidable circumstances.

The derogation clarifies that a member state may temporarily keep a justified and proportionate emergency measure in place for a period longer than 14 days, but the measure may only remain in force for as long as there are public health risks clearly linked to the coronavirus pandemic.

New temporary rules will help airports to continue operating in the event of a ground-handling company going bankrupt by introducing a direct procedure for the selection of service providers. They will also help airports avoid complex tenders by allowing for the extension of contracts up to 2022.

The point that needs to be examined and discussed here is the fact that airline companies create unjust passenger treatment by launching flights on their systems before the flight permits between the countries are clarified.  The fact that the flights are on the system assumes that they will indeed take place and tickets are sold accordingly.  The action of cancelling the flights in the aftermath because of permit issues is considered unjust passenger treatment.    

The flights between the countries are being conducted in accordance with the bilateral civil aviation agreements between the countries where the flights will be taking place, while each country’s right to control its own air space is based on the basic sovereign rights envisaged by the Chicago Convention on International Civil Aviation