Hi all,
It is a day of 'wondering about EC261' from me. I had BA1386 (LHR-MAN) flight on 9th July 2020 cancelled 13 days beforehand, and the replacement flights were more than 3 hours later and were not suitable so I cancelled the booking. I had my EC261 claim rejected by BA on the basis that: "The Flight was cancelled as a result of the COVID-19 pandemic.". I went to CEDR, and they rejected it too; during the CEDR process, BA provided evidence showing low flight loads on the LHR-MAN route, but also stated that there were no public health measures in place that prohibited the flight from operating (it was a domestic flight)
Is it worth going to MCOL here? I was less annoyed about the flight running, and more annoyed that they cancelled the flight with less than 14 days notice (they cancelled it with 13 days notice).The European Commission states the following about cancellations during COVID but I just don't think it is fulfilled here:
Article 5(3) waives the right to compensation on condition that the cancellation in question “is caused” by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.
This condition should be considered fulfilled, where public authorities either outright prohibit certain flights or ban the movement of persons in a manner that excludes, de facto, the flight in question to be operated.
This condition may also be fulfilled, where the flight cancellation occurs in circumstances where the corresponding movement of persons is not entirely prohibited, but limited to persons benefitting from derogations (for example nationals or residents of the state concerned).
Where no such person would take a given flight, the latter would remain empty if not cancelled. In such situations, it may be legitimate for a carrier not to wait until very late, but to cancel the flight in good time (and even without being certain about the rights of the various passengers to travel at all), in order for appropriate organisational measures to be taken, including in terms of care for passengers owed by the carrier. In cases of the kind, and depending on the circumstances, a cancellation may still be viewed as “caused” by the measure taken by the public authorities. Again, depending on the circumstances, this may also be the case in respect of flights in the direction opposite to the flights directly concerned by the ban on the movement of persons.
Where the airline decides to cancel a flight and shows that this decision was justified on grounds of protecting the health of the crew, such cancellation should also be considered as “caused” by extraordinary circumstances.
The above considerations are not and cannot be exhaustive in that other specific circumstances in relation to Covid-19 may also fall under the ambit of Article 5(3).
Source: European Commission: "Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19." (C(2020) 1830 final)