Further to the disruptions of air traffic across Romania caused by the eruptions of an Icelandic volcano, a series of practical issues resurfaced and seem to escalate due to the persistence of this natural phenomenon.

It has become more and more obvious that the array of persons injured by the events from Iceland is not confined to the passengers trapped in the worlds’ airports, but also encompasses many companies whose businesses relied on free and regular flights.

From a legal perspective, the volcanic eruptions in Iceland plausibly fall under the scope of Force Majeure cases. This is also the official interpretation provided by the Romanian National Authority for Consumers’ Protection. Force Majeure is deemed to be an inevitable, unpredictable and extraordinary external event. As long as the natural phenomenon caused by the volcanic eruptions maintains its current features, it will be difficult to challenge the Force Majeure label.

Clarifications on Air Carrier – Air Passenger Rights

Under the definition of Force Majeure as presented herein above, air passengers of canceled or significantly delayed flights will not be entitled to monetary compensation, according to the provisions of (EC) Regulation No. 261/2004 (the “Regulation”). Nevertheless, the said passengers will still be entitled to receive a refund of the ticket, or a rerouting under comparable transport conditions.

Also, air carriers will still be faced with obligations to provide free of charge care and assistance, including meals and refreshments, hotel accommodation and transport between the airport and the hotel. In this respect, the following points are worth noting:

The wording of the Regulation does not indicate any limit on the duration over which the air carrier must exercise its obligation to provide care and assistance to the passengers. However, both the construing of certain references in the preamble of the Regulation, and the applicability of the Montreal Convention, allow for a legal standard of  reasonableness”, according to which the obligation to provide services will cease after the lapse of a fair period of time, by reference to the duration of the delay and to the passengers’ alternative means of transportation;

In applying the same “reasonableness” standard, the European Commission’s Guidelines for enforcing the Regulation indicate that, if there are no hotel accommodation facilities near the airport, and the time until the next available flight is short enough, air carriers do not have the obligation to provide accommodation to their passengers. In this respect, the Guidelines admit to the applicability of recital No. 18 of the Regulation, according to which the obligation to provide care and assistance may be limited or declined may be limited or declined if the provision of the care would itself cause further delay.

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