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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.
Clarifications on Commercial Relationships
As for the fate of the other commercial agreements where one of the parties cannot perform its obligations because of the disruptions caused by the volcanic eruptions in Iceland, one must first analyze how the parties regulated the Force Majeure concept. The parties to an agreement are free to precisely stipulate the circumstances which are included in this concept, as well as the implications of the application thereof to commercial covenants.
If the parties did not expressly regulate this concept, the legal definition of Force Majeure shall become applicable. In the latter case, the principle governing the parties’ relations will be that an obligation that cannot be executed because of a Force Majeure event will remain suspended during its interval of occurrence (in the case of contracts that envisage an extensive timeframe), or even cease to exist (in case execution has become impossible, or inadequate at the moment the Force Majeure event has elapsed). As a result, the debtor of such obligation will not be able to request the execution of the creditor’s corresponding obligation, nor will the creditor be able to claim damages for the non-performance of such obligation from the debtor.
Clarifications on Employer – Employee Relationships
The eruptions of the Icelandic volcano also raised controversies as regards the relations between employers and their employees trapped on various airports:
In principle, the Romanian Labor Code provides that any individual employment agreement is suspended de jure throughout the existence of a Force Majeure case. If we apply this provision directly, we reach the conclusion that, during the employee’s absence from work because of his/her total and objective impossibility to travel, both his/her obligation to work and the employer’s obligation to pay him/her are suspended. If the employee refuses, for unjustifiable or unreasonable grounds, to use other transportation means in order to reach his/her place of work, his/her absence may become unauthorized, and may entail sanctions for breach of discipline;
The expenses incurred by the employees caught by the Icelandic volcano eruption while traveling on duty (i.e. accommodation cost, transport cost, daily allowance) are to be handled, in principle, by the employer. However, these expenses must also comply with the “reasonability” criterion, and they could end up being charged to the employee when the impossibility to travel is no longer absolute, and the employee unreasonably refuses to travel back to his/her place of work.
