Is British Airways's reason for rejecting EC261 compensation legitimate?

score:13

Accepted answer

UPDATE: Trafikstyrlsen (DK national enforcement body) summarily rejected my claim, as they take the stance that anything with the remotest connection to COVID automatically exempts airlines from compensation.

Then I went to British CEDR, who granted me compensation, arguing that in the period 28 Feb-14 Mar 2021, the passenger load was 64%, while in the same period in 2020 it was only 55%, and that restrictions for travel UK <-> DK has been relaxed, not the opposite, meaning it was indeed a cancellation for "operational reasons" as BA themselves said in their reply to me (it's only to Trafikstyrelsen/CEDR that they pulled the COVID card)

Link to CEDR decision https://pdf.ac/v4IU1

Upvote:5

In March of 2020, the European Union published a 'Notice' entitled "Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19" which covers their interpretation of EU261 with respect to Covid-19.

Section 3.4 of this document covers the "Right to compensation" for airline cancelations which occur with less than 14 days notice (where compensation would generally otherwise be required), and basically gives the airlines the right to avoid compensation when a flight is cancelled either directly or indirectly due to Covid-19 regulations enforced by governments.

Of specific relevant are the statements that :

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).

At the time, whilst Denmark was allowing passengers from the UK, they were still restricting travel from most other countries in the would, so technically the above would apply - even for flights from the UK.

As you were flying to the UK, the following is also relevant :

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.

Thus the cancelation of the LHR-CPH flight (due to covered reasons) would be a sufficient reason to cancel the return flight without offering compensation.

Finally, the notice allows for :

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.

which obviously gives the airline an additional very open-ended claim for a reason for cancelling the flight.

Under general circumstances you would seemingly have a very clear-cut case for compensation as a result of this cancelation - but in current conditions, and given this specific notice from the EU, your request for compensation is unlikely to be successful.

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