The European Commission has published new guidelines for the transport sector, affected by the crisis in the Middle East: the closure of the Strait of Hormuz is in fact also having direct repercussions on the airline sector and, as the summer season approaches, consumer concerns about possible flight cancellations are growing.
After some airlines asked their passengers to supplement the cost of the ticket after purchase, the Commission intervened to clarify the rules (already in force) on fuel surcharges and passenger rights. In particular, the EU reiterated that a retroactive increase in the cost of airfare is not permitted.
The novelty, therefore, simply concerns the issue of fuel surcharges (which are already provided for by EU Regulation 1008/2008): airlines cannot request a supplement from those who have already paid for the plane ticket: the “flexibility clauses” included in the general terms, therefore, must be eliminated.
At the moment, however, according to the European Commission there is no concrete evidence of jet fuel shortages, but if the conflict continues, shortages could occur, with possible flight cancellations, delays and higher prices for passengers. Meanwhile, the war in the Middle East has entered a stalemate, with the Strait of Hormuz hindered by a double blockade: Iran has presented a counter-proposal for peace to the United States, which has rejected the Iranian requests, calling them “unacceptable”.
What the EU fuel surcharge guidelines say
One of the central points of the guidelines concerns the retrospective introduction of a fuel surcharge for airline tickets. The topic had already been discussed about a month ago, after the low-cost airline Volotea had asked some passengers, a few days before departure, for an addition to the ticket already purchased, due to the high cost of fuel due to the instability of the energy markets.
The European Commission intervened directly on the issue, reaffirming the content of Regulation no. 1008/2008 on air services, which requires airlines to always show the final price of the ticket, including all unavoidable and foreseeable cost elements at the time of publication or offer.
This means that any retroactive price change is excluded: airlines cannot apply fuel surcharges after the ticket has been purchased, even if the cost of fuel has increased compared to forecasts. As a result, airlines cannot include terms and conditions that would allow them to increase the price of the ticket after purchase.
The guidelines, in fact, do not introduce anything new, but specify what was already foreseen by European regulations, the interpretation of which however had generated doubts. Airlines can therefore increase the prices of future tickets, but they cannot pass on passengers with a retroactive increase in fuel on tickets already sold.
The Commission, among other things, is very clear on this point: even if a company’s contractual conditions include flexible clauses on supplements, these clauses should still be communicated in a clear, transparent and unambiguous way at the beginning of the booking process. The acceptance of these specific conditions by the customer must then take place on a voluntary basis through an “opt-in” procedure, for example by ticking a non-pre-selected box.
In short, it is not enough for companies to insert a small clause in the “general terms and conditions” section relating to the possibility of an increase in the ticket due to high fuel prices: this is why the EU has required all airlines that provide, in their contractual conditions, the possibility of applying fuel surcharges after the sale of the ticket, to modify these conditions, because they do not comply with the European Regulation.
The issue, however, is different with regards to so-called “tourist packages”, i.e. those purchased in travel agencies: in this case, the EU Directive 2015/2302 on “all-inclusive” travel allows organizers to increase the price of the package after the conclusion of the contract, but only if this possibility is expressly provided for in the contract and if the increase is a direct consequence of variations in the cost of transport linked to the price of fuel.
In cases like this, an increase of up to 8% in the package price does not require the traveler’s consent. However, if the increase exceeds 8%, the traveler can choose whether to accept it or withdraw from the contract, without paying penalties. In any case, the organizer must communicate the increase at least 20 days before departure, with a justification and a detailed calculation. The directive also provides for the opposite situation: if fuel prices were to fall, the traveler would be entitled to a corresponding reduction in the price.
In which cases is there a right to reimbursement according to Brussels
Having resolved the issue of the increase in tickets due to high fuel prices, another question still remains: if our flight was canceled due to lack of fuel, what refunds would we be entitled to?
The EU guidelines, in reality, confirm what has already been said in the past: air passengers continue to benefit from the protections provided by EC Regulation no. 261/2004. In the event of cancellation of their flight, therefore, the passenger has the right to choose between a full refund or an alternative flight.
If the cancellation is communicated less than 14 days before departure, the airline is also required to pay financial compensation. The only exception concerns the so-called “extraordinary circumstances”: the company can be exempted from this additional compensation if it proves that the cancellation was caused by exceptional events, impossible to avoid even by taking all reasonable measures.
On this aspect, however, the EU Commission reiterates a fundamental distinction: a local fuel shortage – which therefore practically prevents the flight from being carried out – can be considered an extraordinary circumstance, and therefore can exempt a company from paying compensation. In this case, therefore, passengers are only entitled to a refund of the ticket (or rerouting on another flight) and not to extra financial compensation.
High fuel prices, however, are not an extraordinary circumstance. This is because fuel represents a significant portion of airline costs and is notoriously subject to strong price volatility. In these cases, in addition to the refund (or rerouting), the airlines are also obliged to pay financial compensation, which ranges from €250 to €600 depending on the distance of the flight.
The Commission has in fact underlined how many companies protect themselves from these fluctuations by gradually incorporating any increases into future tariffs. Managing price volatility, therefore, is part of the normal business activity of an airline and cannot be considered an exceptional circumstance.
Specific protections for refunds also exist for tourist packages: if the trip has not yet started, both the organizer and the traveler can cancel the contract in the event of unavoidable and extraordinary circumstances, with the right to a refund within 14 days. The organizer can offer a voucher as an alternative, but only if the customer voluntarily accepts. If the package is already underway, the organizer must guarantee assistance and propose alternative solutions.
Protections for airlines in EU guidelines
It must be said, however, that the EU guidelines also partially protect airlines: to avoid the closure of certain routes, the Commission has temporarily exempted companies from the 90% refueling rule (which requires airlines to source at least 90% of the fuel needed for flights within the EU).
At the same time, to avoid the loss of airport slots, the Commission exempted companies from the normal obligations relating to landing and take-off slots, precisely due to fuel supply problems at airports. During this period, therefore, airlines will not be penalized for not using their allocated slots.
