A voucher instead of money: do you have to accept it?

Two separate claims can arise out of one disruption, and an airline's offer can run them together. The first is compensation under Article 7: a fixed amount calculated by the flight distance, not by what the ticket cost. The second is reimbursement under Article 8(1)(a): the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for parts already made if the flight no longer serves any purpose in relation to your original travel plan, where you choose reimbursement instead of re-routing. If the flight is part of a package holiday, it is normally the organiser, not the airline, that has to refund you (Article 8(2); more on this in the questions below).

What they have in common is the means of payment. Article 7(3) lists cash, electronic bank transfer, bank orders and bank cheques, and places travel vouchers and/or other services in a category of their own, requiring the signed agreement of the passenger. Article 8(1)(a) refers back to that same Article 7(3) and at the same time sets a seven-day deadline for the reimbursement. The voucher is therefore an exception that applies only if you agree to it, rather than an option the airline can choose on your behalf.

The Swedish Consumer Agency makes the same point briefly in its guidance on cancelled flights, in Swedish: reimbursement may be made by credit notes "if you agree to it". The agency also states that where you choose reimbursement, the airline is to repay the ticket price within seven days. That condition makes all the difference.

An offer that is called goodwill does not necessarily mean that the airline accepts that the Regulation applies. Check whether the offer is tied to you giving up any further claim. It is permissible to offer, and it may be sensible to accept, but it is no substitute for working out what Article 7 would give for your distance band. How an accepted offer is to be assessed in law depends on what you and the airline actually agreed.

Article 15 limits how far a waiver reaches. Under Article 15(1), obligations vis-à-vis passengers pursuant to the Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage. Article 15(2) addresses the situation where such a derogation or restrictive clause is nevertheless applied, or where the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in the Regulation; in that case the provision states that the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.

If the waiver is a pre-drafted standard term that has not been individually negotiated, it can in addition be tested under the rules on unfair terms in consumer contracts based on Council Directive 93/13/EEC: under Article 3(1) such a term is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer, and under Article 6(1) Member States are to lay down that unfair terms are not binding on the consumer. The Court of Justice has held that a term in a contract meant to resolve an existing dispute, by which the consumer waives the right to bring claims before a court, may be regarded as unfair, in particular where the consumer was not given the information needed to understand its legal consequences (Case C‑452/18, operative part, point 4; the case concerned a mortgage loan). Whether a particular term is unfair is for the competent court to decide in the individual case.

Article 12(1) deals with further compensation: the Regulation applies without prejudice to a passenger's rights to further compensation, but compensation granted under the Regulation may be deducted from such compensation. The voucher as such is not governed by Article 12: what it is set off against depends on what you and the airline actually agreed, which is one reason to get the agreement in writing.

As a yardstick there is Commission Recommendation (EU) 2020/648 of 13 May 2020 on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19 pandemic. It is a recommendation, and so not binding law; it concerns vouchers offered instead of reimbursement of the ticket, and it was written in a COVID-19 setting, but it is built on the voucher being accepted voluntarily (point 1), it notes that reimbursement by means of a voucher is only possible if the passenger agrees (recital 8), and it recommends a minimum validity period of twelve months, insolvency protection against the carrier or the organiser that is sufficiently effective and robust, and that vouchers for transport services should be transferable to another passenger without any additional cost. If the offer in front of you lacks those features, that is a substantive argument in the negotiation, not a breach of the rules. The insolvency point is the most concrete one: a voucher is a claim against the airline, whereas an amount in a bank account is not.