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  1. Dear Sirs
  2. Thank you for your email of 07 May 2021, with a deadline of 4 weeks in which to respond. Please
  3. accept our apologies for the delay in responding to you.
  4. The booking:
  5. I can confirm André Eklöf (the Passenger) was booked to travel as follows:
  6. BA819 Copenhagen (CPH) – London Heathrow (LHR) 14MAR 1800 1905 (the Flight)
  7. The facts:
  8. The Flight was cancelled as a result of the global pandemic caused by Coronavirus (COVID-19) and
  9. restrictions in place in both the UK and Denmark to control the spread of COVID-19.
  10. COVID-19 Outbreak
  11. On 30 January 2020, the World Health Organisation (WHO) declared the outbreak of COVID19 as a
  12. Public Health Emergency of International Concern based on the advice of the Emergency
  13. Committee under the International Health Regulations. Please refer to the attached WHO
  14. timeline [Attachment 1]. On 11 March 2020, the COVID-19 outbreak was characterised as a global
  15. pandemic.
  16. The COVID-19 outbreak is an unprecedented pandemic which is in its nature extraordinary to the
  17. course of normal events. It is therefore necessary to consider the cancellation of the Flight in the
  18. full context of the operating environment at the relevant time.
  19. To say these are difficult or “extraordinary” times for the aviation industry is an understatement.
  20. To give context, every single one of the approximately 220 destinations that British Airways
  21. operates to have been impacted by COVID-19 throughout this period, through immigration
  22. restrictions, operating permit changes, country closures, health declarations, or changes in crew
  23. entry/staying in country requirements. All these restrictions have changed many times over, often
  24. at very short notice.
  25. Many of these restrictions have been implemented with less than 48 hours’ notice, without
  26. consultation and without alignment between nations, regions or trade blocks. In addition, the
  27. arrival process into the UK has also been amended on several occasions including entry
  28. restrictions for citizens from certain countries and health declarations. The FCO advice has been
  29. updated throughout this crisis to advise against all but essential travel, initially to Wuhan and
  30. Hubei province before gradually expanding to cover the entire World. This has never before been
  31. issued on this scale in peace time. Please see the following statement for your information:
  32. https://www.gov.uk/government/news/travel-advice-foreign-secreatary-statement-17-march2020 [Attachment 2]
  33. Impact on Airlines
  34. The effect of COVID -19 on airlines has been particularly devastating. International Air Transport
  35. Association (IATA) data at the end of February, showed an estimated potential loss of nearly
  36. US$30 billion for airlines. I exhibit an article which discusses the IATA predictions of February
  37. [Attachment 3].
  38. Shortly after this time, analysis from IATA in early March indicated that the COVID-19 outbreak
  39. could cost the global airline industry up to $113 billion. I exhibit an article from just 14 days after
  40. the February predictions which discusses the March data, further showing the rapidly changing
  41. effects of COVID-19 on the industry [Attachment 4].
  42. Willie Walsh, the CEO of British Airways’ parent company IAG, wrote to the Prime Minister in May
  43. outlining the impact that COVID-19 had made on the aviation industry. Mr Walsh explains that for
  44. British Airways, flights had been reduced by nearly 94% in April with no revenue income.
  45. IATA has announced that it has downgraded its traffic forecast for 2020 to reflect a weaker than
  46. expected recovery, as evidenced by a dismal end to the summer travel season in the Northern
  47. Hemisphere.
  48. IATA now expects full-year 2020 traffic to be down by 66 per cent when compared to 2019 levels.
  49. The previous estimate was a 63 per cent decline.
  50. August 2020 passenger demand continued to be hugely depressed against normal levels, with
  51. revenue passenger kilometers (RPKs) down by 75.3 per cent when compared to August 2019. This
  52. was only slightly improved compared to the 79.5 per cent annual contraction in July 2020.
  53. Domestic markets continued to outperform international markets in terms of recovery, although
  54. most remained substantially down on a year ago. August capacity (available seat kilometers or
  55. ASKs) was down by 63.8 per cent compared to a year ago, and load factor plunged 27.2 points to
  56. an all-time low for August of 58.5 per cent.
  57. https://www.internationalairportreview.com/news/138195/iata-downgrades-2020-trafficforecast/ [Attachment 5]
  58. IATA have reported that:
  59. International passenger demand in 2020 was 75.6% below 2019 levels. Domestic demand in 2020
  60. was down 48.8% compared to 2019. December 2020 total traffic was 69.7% below the same
  61. month in 2019, little improved from the 70.4% contraction in November. Capacity was down
  62. 56.7% and load factor fell 24.6 percentage points to 57.5%. Bookings for future travel made in
  63. January 2021 were down 70% compared to a year-ago, putting further pressure on airline cash
  64. positions and potentially impacting the timing of the expected recovery.
  65. “Last year was a catastrophe. There is no other way to describe it. What recovery there was over
  66. the Northern hemisphere summer season stalled in autumn and the situation turned dramatically
  67. worse over the year-end holiday season, as more severe travel restrictions were imposed in the
  68. face of new outbreaks and new strains of COVID-19.” said Alexandre de Juniac, IATA’s Director
  69. General and CEO.
  70. Travel restrictions
  71. In the attached Prime Minister’s Statement of 31 October, the Prime Minister Boris Johnson made
  72. a press announcement stating:
  73. ‘From Thursday until the start of December, you must stay at home.
  74. You may only leave home for specific reasons, including:
  75. For education; For work, say if you cannot work from home; For exercise and recreation outdoors,
  76. with your household or on your own with one person from another household; For medical
  77. reasons, appointments and to escape injury or harm; To shop for food and essentials; And to
  78. provide care for vulnerable people, or as a volunteer.
  79. www.gov.uk/government/news/prime-minister-announces-new-national-restrictions
  80. [Attachment 6]
  81. A BBC New report dated 08 November 2020 reported, ‘On 07 November 2020 the UK imposed a
  82. ban on non-UK citizens coming from Denmark amid concerns over a new coronavirus strain that
  83. has spread from mink to humans.
  84. UK citizens can return from Denmark, but will have to isolate along with all members of their
  85. household for 14 days. Cabin crew are also no longer exempt from the rules, which Ryanair
  86. described as a "bizarre and baseless" move.
  87. The transport secretary announced the changes less than two hours before they took effect on
  88. Saturday.
  89. Writing on Twitter, Grant Shapps said: "This decision to act quickly follows on from health
  90. authorities in Denmark reporting widespread outbreaks of coronavirus in mink farms. Keeping the
  91. UK public safe remains our top priority."
  92. https://www.bbc.co.uk/news/uk-54851042 [Attachment 7]
  93. On 21 December 2020 the Danish Government banned all passenger flights from UK from 09:00
  94. GMT on 21 December until 09:00 GMT on 23 December 2020. However, the ban on residents in
  95. the UK not being permitted to enter Denmark was extended until 03 January 2021. I refer you to
  96. the attached report from The Local, which can also be viewed using the following link:
  97. https://www.thelocal.dk/20201221/denmark-bans-flights-from-uk-over-new-covid-19-
  98. strain/[Attachment 8]
  99. The Danish Governments entry ban on UK residents was extended several times until the outright
  100. entry ban was lifted on 24 February 2021. The lifting of the ban was reported in The Local and can
  101. be viewed at the following link:
  102. https://www.thelocal.dk/20210224/denmark-lifts-uk-entry-ban-but-extends-all-other-covid-19-
  103. travel-restrictions-until-april/[Attachment 9]
  104. Whilst the ban was lifted, the Danish Government introduced tight restrictions for UK residents.
  105. UK residents would only be permitted entry if they have a worthy purpose until initially 28
  106. February 2021. UK.GOV Entry requirements for Denmark states “The new variant of COVID-19 in
  107. the UK has led the Danish Government to introduce tighter restrictions for UK residents entering
  108. Denmark.”
  109. The attached Gov.uk travel advice Denmark page [Attachment 10], updated on 01 March 2021
  110. and was valid at the time the Passenger was due to travel, states:
  111. ‘Under current UK COVID-19 restrictions, you must stay at home. You must not travel, including
  112. abroad, unless you have a legally permitted reason to do so. It is illegal to travel abroad for
  113. holidays and other leisure purposes.
  114. The FCDO advises against all but essential travel to:
  115. Denmark based on the current assessment of COVID-19 risks. The FCDO is not advising against
  116. travel to the Faroe Islands and Greenland.
  117. From 1 March you can enter Denmark with a worthy purpose if you are resident in the UK.’
  118. Cancellation
  119. The Flight had a Planned Time of Departure from CPH of 17:00 GMT on 14 March 2021 and a
  120. Planned Time of Arrival at LHR of 19:05 GMT. However, the Flight was cancelled on 04 March due
  121. to ongoing entry restrictions for UK nationals and the subsequent drop in passenger demand
  122. [Attachment 11].
  123. The attached Flights Operated and Cancelled report from 28 February-14 March 20 [Attachment
  124. 12] shows BA operated 96 flights from CPH to LHR and had the capacity to carry 15,353
  125. passengers. Whilst, this was at the start of the COVID-19 pandemic BA still carried 8,375
  126. passengers.
  127. In contrast, the attached Flights Operated and Cancelled report from 28 February-14 March 2021
  128. [Attachment 13], shows BA only operated two flights over this period. BA had the capacity to
  129. carry 408 passengers, but only carried 261 passengers representing a load factor of only 64%. This
  130. clearly demonstrates the effect the pandemic and the entry restrictions and travel restrictions in
  131. both countries had on passenger demand.
  132. Article 7
  133. For reasons explained further below, the Passenger is not entitled to the compensation set out in
  134. Article 7 (1)(a).
  135. Article 5(3) of the Regulation states airlines are not obliged to pay compensation in accordance
  136. with Article 7, if the cancellation was caused by extraordinary circumstances which could not have
  137. been avoided even if all reasonable measures had been taken.
  138. In Pešková & Peška v. Travel Services A.S. (Case C-315/15), the Court of Justice of the European
  139. Union (“CJEU”) clarified that extraordinary circumstances under Regulation 261 refer to situations
  140. that “are not intrinsically linked to the operating system of the aircraft, are not by their nature or
  141. origin inherent in the normal exercise of the activity of the air carrier concerned and outside (the
  142. Airline’s) actual control”.
  143. As a result of the pandemic, the European Commission issued specific guidance with the aim of
  144. interpreting and clarifying how the provisions of EU passenger rights legislation (including the right
  145. to compensation under EU Regulation 261) would apply in the context of the COVID-19 outbreak.
  146. The guidance, in section 3.4, includes the following explanation:
  147. “The Commission considers that, where public authorities take measures intended to contain the
  148. Covid-19 pandemic, such measures are by their nature and origin not inherent in the normal
  149. exercise of the activity of carriers and are outside their actual control.”
  150. The guidance issued by the Commission indicates that the Covid-19 pandemic is in itself an
  151. extraordinary circumstance and it can follow that indirect consequences, for example, low
  152. passenger uptake may indeed be included in the range of extraordinary circumstances.
  153. To alleviate the impact of the pandemic and discourage airlines from flying with low (or no)
  154. passenger loads, the European Commission itself has waived the 80:20 rule which requires airlines
  155. to use 80% of its allocated slots to avoid losing them.
  156. The UK Civil Aviation Authority (CAA) has also provided information on what may be considered an
  157. extraordinary circumstance under EC Regulation 261/2004 in the context of the COVID-19
  158. pandemic. The guidance confirms that:
  159. “Where the Government is advising against travel to a destination we consider that this would be
  160. viewed as an 'extraordinary circumstance' and compensation would not be payable. Cancellations
  161. related to coronavirus in other circumstances (e.g. where there is no advice against travel) would
  162. need to be considered on their merits and facts. However, decisions by authorities to close
  163. airspace, restrict airline operations or place restrictions on passengers are likely to be an
  164. extraordinary circumstance. Cancellations due to the economic and environmental consequences
  165. of operating flights with only a few passengers on-board may also be considered to be an
  166. extraordinary circumstance, for example where the imposition of quarantine requirements
  167. significantly impacts demand.”
  168. The CAA COVID-19 guidance can be viewed online using the below link:
  169. https://www.caa.co.uk/Our-work/Newsroom/COVID-19-guidance-for-passengers/[Attachment
  170. 14]
  171. Reasonable measures
  172. The cancellation of the Flight could not have been avoided even if all reasonable measures had
  173. been taken, within the meaning of Article 5(3).
  174. It was the extraordinary circumstances of COVID-19 which resulted in the cancellation of the
  175. Flight. There were no reasonable measures that could have been taken by British Airways to avoid
  176. the effect of COVID-19. This was completely beyond the control of British Airways. The
  177. cancellation was caused by unforeseen disruption arising from the COVID-19 global pandemic.
  178. It would be an intolerable sacrifice for British Airways to continue operating flights with
  179. significantly low passengers.
  180. Article 8
  181. The Passenger chose not to travel and instead requested a refund.
  182. I can confirm that our Refunds team processed a full refund of 846 DKK on 06 March 2021 and this
  183. was returned to the original form of payment.
  184. Conclusion:
  185. As the cancellation of the Flight was not within the control of British Airways, we deny that the
  186. Passenger is entitled to EU compensation on this occasion.
  187.  
  188. BA sincerely regrets the Passenger was inconvenienced by the cancellations. However, I trust I
  189. have provided sufficient information to prove we have acted sufficiently in accordance with EC
  190. Regulation 261/2004.
  191. Kind regards
  192. Laura McDade
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