When easyJet want to avoid EU261 compensation
 

Hope someone can help......
Sunday evening 21.00 flight from BFS to LGW was cancelled. Staff said that the crew ran out of operating hours, so definitely not 'extraordinary circumstances'. Then they email me today to say that...."Your flight was cancelled due to ATC restrictions. As the primary reason for this cancellation was outside our reasonable control, you are not entitled to compensation under the guidelines of EC261/2004". They never said that on Sunday evening at BFS. The email from easyJet has not provided any proof that ATC restrictions were the issue. Other flights seemed to be unaffected. Are they just being sleazy and wanting to avoid paying out? Their offer was a flight back on Tuesday, but we had to get back on Monday morning so I flew BA out BHD for £365 each (which the counter staff at easyJet said I could claim back).

What can I do to get what I think I am owed?

It could have been ATC restrictions leading to the crew timing out.

Maybe, but don't tell me that there are no relief crews at their biggest base?

Even if they had a relief crew, which say they could maybe take off with 1hr delay, they will then be entering LGW "night noise" restrictions which means they might not be allowed to operate the flight.

I thought you were flying from BFS rather than from LGW?

I would actually write back to Easyjet and ask them to show you proof. Make sure you can prove the delivery of this message.
This is very important!
Because if this goes to MCOL or court, Easyjet has to pay all legal fees, even if they win the case.

ATC restrictions are not always extraordinary, esp. if this occurs regularly or if the caused the delay was very minor.
Airlines have to built in some buffer into their schedules, if they operate out of congested airports.

Yes but the inbound to BFS was from LGW - I assume that the crew flying into BFS from LGW would be operating the one back to LGW.

Exactly...and it appears that that crew went overhours [so the LGW-based crew got "stranded" overnight at BFS - along with the intending passengers!], and it appears unlkely that there would be a relief crew hanging around BFS. LGW is easyjet's biggest base and it may be easier to rustle a crew up at short notice there, but I doubt they could do it at BFS so late in the day.

It actually seems that U2841 LGW-BFS (which presumably then operate the return) was also canceled on Sunday

Well, in that case availability of a crew is not the issue.

There was no plane to operate the service, as it never arrived from LGW!!!

Unless U2 wanted to operate the flight with another aircraft they might have had available in BFS/close by, but couldn't because the crew will time out :D

It appears that there may not have been any spare a/c - the aircraft that was pencilled in for LGW-BFS-LGW ended up performing a delayed LGW-CPH-LGW rotation on Sunday evening instead, after arriving in from an earlier BFS rotation....

Thank you for all the information. So, bottom line, are they right to deny me EU261 compensation? And surely they should be refunding the flight that they cancelled and also the cost of the alternative flight I took to London on Monday (as they could not sort me out with an alternative on Monday themselves)?

Well, no one here knows the real reason for the cancellation of the flight, assuming it is not ATC restrictions or the likes then you are due compensation for the cancelled flight, EasyJet doesn't have to pay for the flight you booked on your own, so you might still be out of pocket (max compensation is 250€ + refund of your ticket)

You are, of course, entitled to a refund of your ticket as U2 did not fly the segment.

If indeed U2 can document the lack of crew hours occasioned by ATC delays which took the flight length over the scheduled-in buffer, you will not collect any compensation.

U2 will not pay for your new ticket.

To be fair to U2 - they paid for hotel and taxis and also they are reimbursing the BA flight I took on Monday morning £1,075 for 3 of us, vs the £107 that we spent on the original flight from BFS that got cancelled. So I am not out of pocket at least. But it would still be interesting to know how they can determine and prove that ATC was the cause of the cancellation. Otherwise virtually every delay or cancellation could be excused by exceptional circumstances......and then what is the point of EU261?

From 11:40 - 20:00 Gatwick had a flow rate in of 27ph. This was changed at 18:27 to cancel all slots into Gatwick. This followed on from a flow rate of 22ph from 07:30 - 10:00 which increased to 26ph between 1000 and 11:40

Also on Sunday, BES*, BOD*, MAS*, Greece and Cyprus all had slots in. As the day went on slots became worse in Europe due to capacity and in some destinations (Greek Islands) due to the Weather playing a part.

* Likely to be en route ATC slots rather than arrival destination slots.

Sorry to come back again for some clarification from any expert out there....

So it is clear that on 30th July the regular rotation LGW-BFS-LGW-BFS-LGW was interrupted after the first two sectors as easyJet commandeered the aircraft for a late running CPH flight, and did not find one to put onto the BFS service. My view is that this was clearly an operational issue (any arguments there?), but easyJet customer services has not responded to my counter claim for 3 weeks now. Do I go to MCOL or the CAA now? How can I escalate within easyJet (assuming I have a clear case to answer)?

easyJet have signed up to the Alternative Dispute Resolution body CEDR, and they should have told you that in their correspondence.

If you've been arguing with easyJet for 8 weeks without a result you can go to them for adjudication.

Got a further email from easyJet. It merely repeated that the claim did not qualify because of ATC restrictions. But they did not offer any evidence or proof (again). They then said that in their view the matter was closed. Can they do that? I am clear that it was an operational switch if aircraft that let to ours being cancelled. OK, maybe they switched it because they didn't want CPH passengers to claim (more expensive for them?) but in my view the aircraft switch was clearly in their control. Thoughts anyone or am I flogging a dead horse?

Even if it's not quite the 8 week point, it sounds like your latest correspondence is easyJet's final decision so you can go to CEDR with your claim.

For what it's worth, some of the NWNF companies have a checking system to determine whether passengers on a specific flight are likely to be due compensation. The one that I use says yes, you are due 250 Euro per passenger.

Which one do you use? There seem to be quite a few, some of which look dubious!!

The "checking system" merely looks up the arrival delay and determines whether it is actually late enough to qualify.

The "checking system" does not consider the merits of the case or the likelihood of obtaining compensation. It's just a mere sanity check to weed out cases where the delay simply doesn't qualify in the first place.

Thanks for clarifying. As my issue was a cancellation, there is no debate (except that EasyJet is suggesting it was an ATC issue, where I cant find one!)

PM sent. I'm not sure if naming them here is permitted.


Are you sure? Their website blurb indicates they also reference weather, ECs and tech. issues (although admittedly not ATC ones).

They are not obliged to provide you with proof, if you don't believe them, take them to court!

Until you show me a screenshot showing a recent* flight with a compensable delay which they advise as not being eligible for compensation, then yes, I am sure!

(*must be recent, i.e. they cannot have already been through the process of interacting with the airline in question and therefore having had it proved to them that extraordinary circumstances arose, or that they lost the case in court. In these circumstances, they are unlikely to wish to solicit further claims for the same flights, and would adapt the "checker" accordingly).

Well 6 months on from the original cancelled flight and, through CEDR, I have actually got a ruling in my favour. EasyJet even fought it through CEDR, still saying it was down to ATC restrictions. But in their 'evidence' they shared a document that showed that afternoon they made a last minute switch of aircraft on the LGW-BFS-LGW-BFS-LGW rotation. I guess easyJet's view is that most people will give up, maybe when they say 'no' to the passenger, or then saying 'no' to the CEDR adjudicator in the first round of 'evidence'. Persistence eventually paid off......and that would be my recommendation to anyone caught up in a dubious denial of an EU261 claim

It just goes to show how many airlines do this, I had a BMI flight cancelled last month because of operational reasons (they got the plane due to operate my flight stuck somewhere the night before) I put in a EU261 claim and they said it was a manufacturing issue so I wasn’t due it. I replied saying by manufacturing do you mean a technical issue with the aircraft and referenced previous legal rulings before threatening my own. They then replied saying they’d re-considered and awarded me the compensation.
Just goes to show in both cases have some background knowledge and don’t give up when they try and fob you off.

Interesting taht Easyjet fought it right up until the end. I'm in a similar scenario and have just got a response from Easyjet, but some of their claims are rubbish. In addition to a crew time out claim (from gatwick!) they also claimed that the arrival airport had a curfew but in the airports documents we would have had 4 hours within which to land a 1.5 hour flight! So I have responded to their email and am tempted to take it to CEDR...

Presuming that you do intend to pursue this, I would not send another email, but would respond with a Letter Before Action (form on the MCOL website). This serves the same purpose as another email from you in which you disclose what you know, but eliminates yet another step in the process as you will still need to send a Letter Before Action in any event. Why not save yourself 30+ days?

This is debatable.

According to art. 9, the airline should provide food and a hotel room. If the airline doesn't provide this, then the passengers seek compensation from the airline for the airline's failure to fulfill its legal obligations (usually an amount equal to what the passenger had to pay to get food and a hotel room at his own expense).

According to art. 8, the passenger should be rerouted "under comparable transport conditions" and "at the earliest opportunity." If the airline fails to do this (for example by not rerouting at the earliest opportunity but waiting a bit longer), then I'd imagine that the passenger would be entitled to compensation from the airline (probably corresponding to what the passenger paid for rerouting at his own expense).

It is unclear what "under comparable transport conditions" means. If the other flight was "under comparable transport conditions" then the OP is maybe entitled to compensation for the new flight.

At the very least, the OP will have to pay for one of the flights: either the new one or the original one.Both Copenhagen and Belfast are on the €250 regime. However, it may be more expensive to reroute those passengers if there are fewer available seats on flights to Copenhagen.

There is no precedential authority that a carrier must rebook OA. Some do and some don't. Some rebook high-level elites OA and others do not. But, EC 261/2004 does not require OA rebooking, at least now.

There is also nothing in the Regulation which suggests that if one uses self-help to rebook, that one may simply claim it back from the operating carrier.

The key is to be forewarned that one may well eat the cost of the self-help.

That's why I wrote that "It is unclear what "under comparable transport conditions" means." It may well be that the conditions are not comparable if the carrier is not the same as the one originally booked.

If the carrier doesn't fulfill its rebooking obligations, the passenger would normally be entitled to compensations. Ideally, the obligations should be tested in court so that people will know what rights they have. However, it could be expensive for the passenger to test this if the passenger is wrong, so it's better if it is tested by "someone else" who would then be the one who risks having to pay a large amount of money.

Just to be clear, this is a very common scenario, yet here we are at the end of 2018, and this issue has not yet been tested. Or it has been tested and nobody has taken it to the ECJ or a national precedential court.

The best I've found is this, an issue of the Official Journal of the European Union which has some comments from the European Commission on Regulation 1371/2007 on train travel. Section 4.2.3 discusses the meaning of "comparable transport conditions" under that regulation. As Regulation 261/2004 on air travel uses an almost identical formulation, "comparable transport conditions" might have the same meaning under both regulations. To my knowledge, it has not been tested in court under either reglation.

I recently had a precise 3hr 1min delay on an Easyjet flight from Inverness to Luton, for which I made a claim and was given a final response that this was due to ATC restrictions outside their control, and therefore qualified as extraordinary circumstances, i.e. no compensation payable.

At Inverness Airport, they flirted with the idea of delaying the flight overnight due to it being an evening flight close to Inverness Airport closing time, then they decided to go ahead with it, then got a bit unlucky with delays boarding us from our gate (due to waiting for another Easyjet flight disembarking passengers in our path to our aircraft), then I witnessed the fastest I've ever seen a flight being boarded, closed, taxi'd, safety messages completed, and taken off, and the pilot absolutely "legged" it to try and undercut the 3hr threshold.

Unfortunately for Easyjet, the official arrival time clocked at exactly 3hr 1min late and as it was exhausting waiting so long that late in the evening and having to catch transport into London during the early hours of the morning, I pushed through a claim.

It's now with CEDR...

So that you are forewarned, this can be fiddly and EC261 says this:

I'm not an expert, but if there is a short or moderate ATC delay that simply added to a delay for other reasons, then I guess it might not be an exceptional circumstance. However, if that plane had faced a long ATC delay earlier in the day, it seems unlikely to be straightforward.

ATC seems to be the classic example of an extraordinary circumstance both because there is absolutely no predictive basis and because the decisions are made entirely by others. On the other hand, there are all manner of less than competent people who hold judicial power. I will be interested to learn of precedential authority for the proposition that an ATC-directed delay is other than an extraordinary circumstance.

I just received a settlement offer of £175 (instead of the claimed €250 / £225) and accepted it... Hopefully they pay it within the set timescales (20 working days)...

Message says there is no admission of liability and it's purely a goodwill gesture, which seems quite generous offering £175 on a £42 ticket... ATC or not?