Jan 1, 2019, 2:39 am
Last edit by: corporate-wage-slave
Link to Text of the regulations in PDF format
Downgrades: Mennens case - calculation formula is in this post
787 cancellations due to Trent engine issues - CEDR ruling information from the post in the 2018 thread and onwards.
Downgrades: Mennens case - calculation formula is in this post
787 cancellations due to Trent engine issues - CEDR ruling information from the post in the 2018 thread and onwards.
The 2019 BA compensation thread: Your guide to Regulation EC261/2004
Sep 26, 2019, 8:37 am
#1141
Join Date: Aug 2015
Posts: 159
Arrival into NCL was scheduled 0940 IIRC (as a connection from inbound to LHR due 0620). Actual arrival time to LHR 1045; re-booked NCL arrival time 2210.
Sep 26, 2019, 9:25 am
#1142
Join Date: Sep 2019
Posts: 14
Hi all. I found this thread via Google so please don't hate in me for being a newbie 
I've got two questions really but first I will explain what happened with my recent BA flights both to and from Vegas.
Outbound flight 2277 from LGW to LAS
We were scheduled to fly on August 20th at 11:50 a.m but late in the evening of the 18th I received a text to tell me that out flight had been cancelled and that we had been rebooked on BA275 from LHR instead
This arrived in to LAS approx 5 hours after the original flight...I'll come back to this.
Inbound flight 274 from LAS to LHR
This was also a change from our original plans, but at our own request as we wanted to fly back to the same airport I was travelling from, so I could use the car.
Flight was originally scheduled to take off at 21:30 local time but due to a failure of the APU at the rear of the plane on BA275 (the outbound journey that day) they couldn't get the Aircon working so had to coast around the airport and it took off 4 hours late. We ended up taking off at 2:30 a.m. local time and the plane landed over 4 hours late back at LHR
Anyway, as the delay for the return flight dragged on and I was bored in the airport I looked in to compensation and realised that I would be eligible for compensation for both flights
I submitted two separate claims using BAs own website on my return
On Tuesday I received a response from BA regarding the outbound flight claim, saying that they had "raised a bank transfer" for the equivalent of €1200 (2 passengers, me and my wife)
I was expecting the money to take 2 days but it's still not hit my account so I wondered how long this might take?
Currently no response from the return flight claim. Just thought I would check with people that know their stuff if a failure on the plane on an outbound flight before they even took off would be considered an extraordinary circumstance? Seems strange they have dealt with one claim but not the other.
I've got two questions really but first I will explain what happened with my recent BA flights both to and from Vegas.
Outbound flight 2277 from LGW to LAS
We were scheduled to fly on August 20th at 11:50 a.m but late in the evening of the 18th I received a text to tell me that out flight had been cancelled and that we had been rebooked on BA275 from LHR instead
This arrived in to LAS approx 5 hours after the original flight...I'll come back to this.
Inbound flight 274 from LAS to LHR
This was also a change from our original plans, but at our own request as we wanted to fly back to the same airport I was travelling from, so I could use the car.
Flight was originally scheduled to take off at 21:30 local time but due to a failure of the APU at the rear of the plane on BA275 (the outbound journey that day) they couldn't get the Aircon working so had to coast around the airport and it took off 4 hours late. We ended up taking off at 2:30 a.m. local time and the plane landed over 4 hours late back at LHR
Anyway, as the delay for the return flight dragged on and I was bored in the airport I looked in to compensation and realised that I would be eligible for compensation for both flights
I submitted two separate claims using BAs own website on my return
On Tuesday I received a response from BA regarding the outbound flight claim, saying that they had "raised a bank transfer" for the equivalent of €1200 (2 passengers, me and my wife)
I was expecting the money to take 2 days but it's still not hit my account so I wondered how long this might take?
Currently no response from the return flight claim. Just thought I would check with people that know their stuff if a failure on the plane on an outbound flight before they even took off would be considered an extraordinary circumstance? Seems strange they have dealt with one claim but not the other.
The money took about 7 working days to arrive for the claim that was paid (for a flight cancellation 36 hours before we were due to fly)
I've not had any response from BA regarding the other claim, where the plane landed more than 4 hours late, and it's been a month since I put the claim in - They both were submitted on the same day with different case numbers
Should I just sit on my hands?
Sep 26, 2019, 1:36 pm
#1143
Moderator, Iberia Airlines, Airport Lounges, and Ambassador, British Airways Executive Club
Original Poster
Join Date: Feb 2010
Programs: BA Lifetime Gold; Flying Blue Life Platinum; LH Sen.; Hilton Diamond; Kemal Kebabs Prized Customer
Posts: 63,799
By the looks of it, this won't get delay compensation. Had you got into London at 12:40 then you would definitely have been delayed 3 plus hours however you look at it. In this case you quite understandably didn't travel to NCL, and since the flight wasn't actually cancelled you can only claim for the modest refund on the missed leg. On delayed flights you essentially have to travel the delay, you can't usually claim for a hypothetical delay. The refund is likely to be sufficiently low that it is often best to rebook the last leg well into the future, if there was something in your diary for which it would have been useful.
Sep 26, 2019, 1:38 pm
#1144
Moderator, Iberia Airlines, Airport Lounges, and Ambassador, British Airways Executive Club
Original Poster
Join Date: Feb 2010
Programs: BA Lifetime Gold; Flying Blue Life Platinum; LH Sen.; Hilton Diamond; Kemal Kebabs Prized Customer
Posts: 63,799
There are a number of recent posts that indicate that claims are now taking well over a month, I've no doubt that Customer Relations are overloaded at the moment. So much so that they are sending out "we haven't forgotten you" emails, which is the first time I recall that happening. At 8 weeks you can claim via CEDR if it is still outstanding.
Sep 27, 2019, 2:53 am
#1146
Join Date: Nov 2014
Location: London
Programs: BAEC Silver, M&M, HHonors Gold
Posts: 1,223
Sep 27, 2019, 3:52 am
#1147
FlyerTalk Evangelist
Join Date: Nov 2004
Location: Denmark
Programs: TK Elite
Posts: 11,842
I understand that the UK CAA has determined that Industrial Action does not count as extra-ordinary circumstances and therefore EU 261 is payable?
I had a flight with a non-UK carrier (SK) but it was from a UK departure point, Aberdeen to CPH which was delayed for 1h36m sufficient to cause me to miss my connection to OSL. This meant an overnight stay and delay of 7h05m to final destination.
The carrier is refusing to pay EU 261 compensation due to the fact it was caused by Industrial Action. The CAA statement on their website relates to cancellations, however it seems reasonable that it should relate to delay also.
Are they (SK) correct here? If not, what is the best recourse, CEDR?
I had a flight with a non-UK carrier (SK) but it was from a UK departure point, Aberdeen to CPH which was delayed for 1h36m sufficient to cause me to miss my connection to OSL. This meant an overnight stay and delay of 7h05m to final destination.
The carrier is refusing to pay EU 261 compensation due to the fact it was caused by Industrial Action. The CAA statement on their website relates to cancellations, however it seems reasonable that it should relate to delay also.
Are they (SK) correct here? If not, what is the best recourse, CEDR?
The Swedish consumer "ombudsman" ruled on 29 Aug that SAS wasn't liable to pay compensation under EU Reg. 261/04 for the industrial actions by SAS pilots in April and early May. You will get nowhere with this.
Sep 27, 2019, 4:47 am
#1148
Join Date: Aug 2008
Location: LHR
Programs: BAEC GGL & CCR / QF LTG
Posts: 829
As a data point for other members, I thought I would post the outcome of my EU261 claim with BA on an AA ticket with BA/AA/AY flight numbers.
Original query and follow up posts:
Posts from other members:
Outcome:
Original query and follow up posts:
My plans were MIA - LHR - HEL - ARN, the last part of a TP run booked via AA, although operating and marketed carriers were BA and AY. I was delayed MIA - LHR due to failure of engine number 2 on the 747. They eventually got it fixed and we arrived in LHR 7h late, so I missed all my connections. I was going to stay the night in ARN and return to LHR the following day but this was no longer viable and got off at LHR (thankfully HBO). €600 seems straightforward to claim, I assume I can get a refund on the two missed flights and I have also claimed ORC for these.
Would this be seen as double dipping by BA and be declined? I've searched and cannot find a similar situation.
Would this be seen as double dipping by BA and be declined? I've searched and cannot find a similar situation.
Sorry, I might be a bit confused. MIA - LHR is a Type 3 flight so the delayed arrival needs to be more than 4h, which it was, so €600 is payable. I am not expecting (nor do I think I am due) any compensation for LHR - HEL - ARN as these flights were not delayed. I do believe I am entitled to a (however small) refund for these sectors.
This is very much a grey area in my mind. Hopefully others can see it more clearly.
As I view it, and of course I'm happy to be corrected here, a passenger has the option not to travel on a flight that is severely delayed. However, the situation described by Jase76 differs somewhat in that the passenger did travel on the delayed flight and onward flights were protected as a result of the misconnection at LHR. So with the MIA-LHR flight taken, the right to abandon would apply only in the event the onward (rebooked) flights were severely delayed. As the journey was voluntarily curtailed, EC261 compensation may not be awarded. Are there any flaws in this logic, or precedent that suggests otherwise?
As I view it, and of course I'm happy to be corrected here, a passenger has the option not to travel on a flight that is severely delayed. However, the situation described by Jase76 differs somewhat in that the passenger did travel on the delayed flight and onward flights were protected as a result of the misconnection at LHR. So with the MIA-LHR flight taken, the right to abandon would apply only in the event the onward (rebooked) flights were severely delayed. As the journey was voluntarily curtailed, EC261 compensation may not be awarded. Are there any flaws in this logic, or precedent that suggests otherwise?
My take on this is that you can only get Article 7 compensation without travelling if there is a cancellation, not a delay. For the delay side, which is judicial rather Regulation based, you need to actually travel and be delayed to get it. So had you ploughed on to ARN via HEL you would be very delayed and open to Article 7. The delay side came about on the basis of equal treatment to cancellations, so you have a valid counter argument there. However bear in mind that at LHR had you given them a chance they may have got you to ARN before 3 stroke 4 hours by putting you on the SAS service. Rerouting is indeed a passenger choice but separate from article 7, so if BA was able to offer a service such as SK532 that gets you there on time (and this aspect of the dialogue we don't have here) then compensation isn't payable.
So I don't think 600€ is a given, unless there is something about the conversation with BA held in LHR that hasn't been reported yet.
So I don't think 600€ is a given, unless there is something about the conversation with BA held in LHR that hasn't been reported yet.
- BA were surprisingly quick to admit EU261 compensation was payable, although I had to chase the payment as it was not processed correctly. No further conversation was had at LHR, or followups post submitting my claim online. (I do think knowing exactly what went tech with the plane and stating this was not an extraordinary circumstance helped).
- BA refused to refund the unused segments as it was 001 stock and said I had to contact AA. So I filled in the form on aa.com and they agreed to refund the unused segments with an amount larger than I expected of £106.27.
- BA declined ORC as I was not rerouted but ended my trip in LHR, and in any case would have only provided ORC for BA flight numbers. Given I was refunded the unused segments I am not pursuing this for 80TP.
Sep 29, 2019, 1:03 am
#1149
Join Date: Jul 2016
Location: DUB
Programs: BA Gold; AA LTG MM
Posts: 103
I have just suffered a loss in CEDR following an involuntary downgrade. We had booked flights in First to St Lucia with cash and Gold Upgrade vouchers through Propeller. As happens too often, BA changed the plane from a four class to three class and, sneakily, rather than informing me that we had been downgraded, just sent out the “Your seats have been changed” email.
Having already booked all other elements of the holiday and seeing there were no other flights with First around the time, I decided to wait to see if the aircraft changed back but otherwise do nothing and claim afterwards. So, I contacted BA after the flight to claim downgrade reimbursement.
Here, they went into full deny mode. First claim was it was over fourteen days, so doesn’t count. Fourteen days applies to cancellations, not downgrades. They then said I had paid no extra for the flights, so there’s no refund due, whether cash, Avios or reinstatement of one GUF. Getting nowhere, I went to CEDR.
The result is a fail. I have set out the text below, but there are some dangerous opinions in this:
1. A GUF requires “no additional monetary payment”, so it therefore has “equivalent monetary value”. i.e., Gold Upgrade vouchers are worthless.
2. Sitting on the same flight on the same date and time with the same flight number, but with a different aircraft, is considered an “alternative flight”.
3. Not responding to a disguised notice of downgrade is considered as having “accepted the change”.
4. “a downgrade actioned more than two weeks in advance is comparable to a situation where a flight is cancelled more than two weeks in advance”.
An extraordinary outcome. If someone litigates this and the courts agree with this adjudicator, BA can swap aircraft around at will up to two weeks before a flight, downgrade anyone who upgraded with Avios, GUFs, etc., and owe absolutely nothing in return.
DECISION: Claim fails.
OUTCOME: £0.00.
NON-MONETARY TERMS: None.
DISCUSSION OF DECISION: 1. The evidence shows the booking on 10 September 2018 was initially made for the passengers to travel in Club Europe on Flight 1 and Club World on Flight 2. Flight 1 and Flight 2, as well as the return flights, were subsequently upgraded to First Class using Gold Upgrade vouchers which the airline’s evidence demonstrates required no additional monetary payment. I consider that the Gold Upgrade voucher has an equivalent monetary value as it was used to upgrade the tickets on Flight 2 from Club World to First Class. 2. The airline submits the aircraft was changed in November 2018, more than six months in advance, and the passengers accepted an alternative flight in Club World which is the cabin they paid for. The airline states a passenger is only deemed as being downgraded if they have checked in for the ticketed cabin and then downgraded to a lower class at the airport. If the passenger had not accepted the change, they would have been offered a refund or the option to rebook on an alternative flight in First Class at a later date. I note there is no requirement in the Regulation to state the passenger must have checked-in in order to be downgraded as asserted by the airline. 3. The passenger submits they were not notified of the downgrade and only received an email to say their seats had changed. The airline’s email of 1 November 2018 includes a link to allow the passenger to view the new seats in ‘Manage My Booking’. I consider it more likely than not that this would have shown that the passengers were allocated seats in Club World on Flight 2. 4. I am satisfied that following the upgrade to First Class, the airline downgraded the passengers to Club World due to a change of aircraft. As a result, the passengers travelled in a class lower than that for which the ticket was purchased (albeit purchased by cash and vouchers). 5. In the case of Sturgeon v Condor (C-402/07), the Court of Justice of the European Union (CJEU) emphasised that Regulation 261 must be interpreted in accordance with the principle of equal treatment under EU law “which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified”. 6. This is an important consideration in the present case because passengers on a flight which has been cancelled more than two weeks in advance are not entitled to compensation under Article 7 of Regulation 261. The Regulation defines cancellation as the non-operation of a flight which was previously planned and on which at least one place was reserved. 7. In addition, passengers on a flight that has been cancelled should be offered the choice of reimbursement or re-routing under comparable transport conditions at the earliest opportunity or at a later date at the passenger’s convenience, and the airline submits that these options were available to the passenger following the aircraft change. I acknowledge that these options are not specified in the airline’s email of 1 November 2018 which includes a link for passengers who wish to claim a refund for seating they have paid for. Nevertheless, I am satisfied that the passenger had the opportunity to contact the airline in response if he was unhappy with the alternative seating provided in Club World. 8. I am persuaded, on balance, that a downgrade actioned more than two weeks in advance is comparable to a situation where a flight is cancelled more than two weeks in advance such that the passenger is not entitled to compensation under Regulation 261. I am not persuaded, on the facts of this case, that differential treatment is objectively justified in this instance such that the passenger is entitled to 75% of the price paid for Flight 2. As a result, the passenger’s claim does not succeed. Decision The passenger’s claim does not succeed..
Having already booked all other elements of the holiday and seeing there were no other flights with First around the time, I decided to wait to see if the aircraft changed back but otherwise do nothing and claim afterwards. So, I contacted BA after the flight to claim downgrade reimbursement.
Here, they went into full deny mode. First claim was it was over fourteen days, so doesn’t count. Fourteen days applies to cancellations, not downgrades. They then said I had paid no extra for the flights, so there’s no refund due, whether cash, Avios or reinstatement of one GUF. Getting nowhere, I went to CEDR.
The result is a fail. I have set out the text below, but there are some dangerous opinions in this:
1. A GUF requires “no additional monetary payment”, so it therefore has “equivalent monetary value”. i.e., Gold Upgrade vouchers are worthless.
2. Sitting on the same flight on the same date and time with the same flight number, but with a different aircraft, is considered an “alternative flight”.
3. Not responding to a disguised notice of downgrade is considered as having “accepted the change”.
4. “a downgrade actioned more than two weeks in advance is comparable to a situation where a flight is cancelled more than two weeks in advance”.
An extraordinary outcome. If someone litigates this and the courts agree with this adjudicator, BA can swap aircraft around at will up to two weeks before a flight, downgrade anyone who upgraded with Avios, GUFs, etc., and owe absolutely nothing in return.
DECISION: Claim fails.
OUTCOME: £0.00.
NON-MONETARY TERMS: None.
DISCUSSION OF DECISION: 1. The evidence shows the booking on 10 September 2018 was initially made for the passengers to travel in Club Europe on Flight 1 and Club World on Flight 2. Flight 1 and Flight 2, as well as the return flights, were subsequently upgraded to First Class using Gold Upgrade vouchers which the airline’s evidence demonstrates required no additional monetary payment. I consider that the Gold Upgrade voucher has an equivalent monetary value as it was used to upgrade the tickets on Flight 2 from Club World to First Class. 2. The airline submits the aircraft was changed in November 2018, more than six months in advance, and the passengers accepted an alternative flight in Club World which is the cabin they paid for. The airline states a passenger is only deemed as being downgraded if they have checked in for the ticketed cabin and then downgraded to a lower class at the airport. If the passenger had not accepted the change, they would have been offered a refund or the option to rebook on an alternative flight in First Class at a later date. I note there is no requirement in the Regulation to state the passenger must have checked-in in order to be downgraded as asserted by the airline. 3. The passenger submits they were not notified of the downgrade and only received an email to say their seats had changed. The airline’s email of 1 November 2018 includes a link to allow the passenger to view the new seats in ‘Manage My Booking’. I consider it more likely than not that this would have shown that the passengers were allocated seats in Club World on Flight 2. 4. I am satisfied that following the upgrade to First Class, the airline downgraded the passengers to Club World due to a change of aircraft. As a result, the passengers travelled in a class lower than that for which the ticket was purchased (albeit purchased by cash and vouchers). 5. In the case of Sturgeon v Condor (C-402/07), the Court of Justice of the European Union (CJEU) emphasised that Regulation 261 must be interpreted in accordance with the principle of equal treatment under EU law “which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified”. 6. This is an important consideration in the present case because passengers on a flight which has been cancelled more than two weeks in advance are not entitled to compensation under Article 7 of Regulation 261. The Regulation defines cancellation as the non-operation of a flight which was previously planned and on which at least one place was reserved. 7. In addition, passengers on a flight that has been cancelled should be offered the choice of reimbursement or re-routing under comparable transport conditions at the earliest opportunity or at a later date at the passenger’s convenience, and the airline submits that these options were available to the passenger following the aircraft change. I acknowledge that these options are not specified in the airline’s email of 1 November 2018 which includes a link for passengers who wish to claim a refund for seating they have paid for. Nevertheless, I am satisfied that the passenger had the opportunity to contact the airline in response if he was unhappy with the alternative seating provided in Club World. 8. I am persuaded, on balance, that a downgrade actioned more than two weeks in advance is comparable to a situation where a flight is cancelled more than two weeks in advance such that the passenger is not entitled to compensation under Regulation 261. I am not persuaded, on the facts of this case, that differential treatment is objectively justified in this instance such that the passenger is entitled to 75% of the price paid for Flight 2. As a result, the passenger’s claim does not succeed. Decision The passenger’s claim does not succeed..
Sep 29, 2019, 1:30 am
#1150
Join Date: Feb 2010
Location: London
Programs: BA GGL (for now) and Lifetime Gold, Marriott fan thanks to Bonvoy Moments
Posts: 5,115
Thanks for posting hshs- agree that’s a poor outcome. Had BA made any offer pre-CEDR? If I was in your shoes I would take to small claims and argue that the monetary value of the upgrade voucher is irrelevant, the 75% downgrade refund relates to all forms of consideration and use of voucher /Avios doesn’t put ticket in the bucket that falls outside 261 (not available to public?). Once BA has accepted the voucher for a higher class of travel the “value” is irrelevant.
the reasoning on 2 weeks etc is bizarre and don’t see (IANAL) a judge accepting that. The legislation having a specific carve out for one situation means it’s a massive stretch to apply to others
the reasoning on 2 weeks etc is bizarre and don’t see (IANAL) a judge accepting that. The legislation having a specific carve out for one situation means it’s a massive stretch to apply to others
Sep 29, 2019, 5:32 am
#1151
Moderator, Iberia Airlines, Airport Lounges, and Ambassador, British Airways Executive Club
Original Poster
Join Date: Feb 2010
Programs: BA Lifetime Gold; Flying Blue Life Platinum; LH Sen.; Hilton Diamond; Kemal Kebabs Prized Customer
Posts: 63,799
Indeed thank you for posting the outcome. I too can't see where 2 weeks comes into this, other than making a link which isn't in the Regulation itself. I guess there is a common sense point that it is worth contacting BA to register disapproval with the change as soon as it is spotted rather than just leaving it, I imagine it would have been easier to get the GUF restored to your account then. I reasonably certain that MCOL would have viewed this differently had the case been carefully constructed. The issue that the GUF is worthless also seems out of step with the Regulation's wording, as does the idea that there is 2 week grace period on downgrades (ruling point 8 above).
Sep 29, 2019, 6:22 am
#1152
Join Date: Jul 2016
Location: DUB
Programs: BA Gold; AA LTG MM
Posts: 103
Thanks for posting hshs- agree that’s a poor outcome. Had BA made any offer pre-CEDR? If I was in your shoes I would take to small claims and argue that the monetary value of the upgrade voucher is irrelevant, the 75% downgrade refund relates to all forms of consideration and use of voucher /Avios doesn’t put ticket in the bucket that falls outside 261 (not available to public?). Once BA has accepted the voucher for a higher class of travel the “value” is irrelevant.
the reasoning on 2 weeks etc is bizarre and don’t see (IANAL) a judge accepting that. The legislation having a specific carve out for one situation means it’s a massive stretch to apply to others
the reasoning on 2 weeks etc is bizarre and don’t see (IANAL) a judge accepting that. The legislation having a specific carve out for one situation means it’s a massive stretch to apply to others
Sep 29, 2019, 6:33 am
#1153
Join Date: Jul 2016
Location: DUB
Programs: BA Gold; AA LTG MM
Posts: 103
Indeed thank you for posting the outcome. I too can't see where 2 weeks comes into this, other than making a link which isn't in the Regulation itself. I guess there is a common sense point that it is worth contacting BA to register disapproval with the change as soon as it is spotted rather than just leaving it, I imagine it would have been easier to get the GUF restored to your account then. I reasonably certain that MCOL would have viewed this differently had the case been carefully constructed. The issue that the GUF is worthless also seems out of step with the Regulation's wording, as does the idea that there is 2 week grace period on downgrades (ruling point 8 above).
I do wonder about the success in contacting BA. As it was booked through Propeller, one wonders whether they would have responded to me anyway. However, what might the outcome have been? I needed to travel on that day so an alternative flight wouldn't have suited. Might they, similar to the outcome here, say I had therefore accepted the change, so tough on me?
Sep 29, 2019, 7:20 am
#1155
Join Date: Jul 2016
Location: DUB
Programs: BA Gold; AA LTG MM
Posts: 103
@hshs
could I ask you to put some line breaks into the cedr pasr your post as it is very difficult to read!
could I ask you to put some line breaks into the cedr pasr your post as it is very difficult to read!
DECISION: Claim fails.
OUTCOME: £0.00.
NON-MONETARY TERMS: None.
DISCUSSION OF DECISION:
1. The evidence shows the booking on 10 September 2018 was initially made for the passengers to travel in Club Europe on Flight 1 and Club World on Flight 2. Flight 1 and Flight 2, as well as the return flights, were subsequently upgraded to First Class using Gold Upgrade vouchers which the airline’s evidence demonstrates required no additional monetary payment. I consider that the Gold Upgrade voucher has an equivalent monetary value as it was used to upgrade the tickets on Flight 2 from Club World to First Class.
2. The airline submits the aircraft was changed in November 2018, more than six months in advance, and the passengers accepted an alternative flight in Club World which is the cabin they paid for. The airline states a passenger is only deemed as being downgraded if they have checked in for the ticketed cabin and then downgraded to a lower class at the airport. If the passenger had not accepted the change, they would have been offered a refund or the option to rebook on an alternative flight in First Class at a later date. I note there is no requirement in the Regulation to state the passenger must have checked-in in order to be downgraded as asserted by the airline.
3. The passenger submits they were not notified of the downgrade and only received an email to say their seats had changed. The airline’s email of 1 November 2018 includes a link to allow the passenger to view the new seats in ‘Manage My Booking’. I consider it more likely than not that this would have shown that the passengers were allocated seats in Club World on Flight 2.
4. I am satisfied that following the upgrade to First Class, the airline downgraded the passengers to Club World due to a change of aircraft. As a result, the passengers travelled in a class lower than that for which the ticket was purchased (albeit purchased by cash and vouchers).
5. In the case of Sturgeon v Condor (C-402/07), the Court of Justice of the European Union (CJEU) emphasised that Regulation 261 must be interpreted in accordance with the principle of equal treatment under EU law “which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified”.
6. This is an important consideration in the present case because passengers on a flight which has been cancelled more than two weeks in advance are not entitled to compensation under Article 7 of Regulation 261. The Regulation defines cancellation as the non-operation of a flight which was previously planned and on which at least one place was reserved.
7. In addition, passengers on a flight that has been cancelled should be offered the choice of reimbursement or re-routing under comparable transport conditions at the earliest opportunity or at a later date at the passenger’s convenience, and the airline submits that these options were available to the passenger following the aircraft change. I acknowledge that these options are not specified in the airline’s email of 1 November 2018 which includes a link for passengers who wish to claim a refund for seating they have paid for. Nevertheless, I am satisfied that the passenger had the opportunity to contact the airline in response if he was unhappy with the alternative seating provided in Club World.
8. I am persuaded, on balance, that a downgrade actioned more than two weeks in advance is comparable to a situation where a flight is cancelled more than two weeks in advance such that the passenger is not entitled to compensation under Regulation 261. I am not persuaded, on the facts of this case, that differential treatment is objectively justified in this instance such that the passenger is entitled to 75% of the price paid for Flight 2. As a result, the passenger’s claim does not succeed. Decision The passenger’s claim does not succeed..