Aviation Law

Exceptional circumstances are not excluded in principle if a flight is also cancelled for economic reasons due to the pandemic.

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February 22nd, 2022

In its judgment of 03.09.2021 (case ref. 102 C 2135/21), the Erding District Court ruled that extraordinary circumstances are not excluded simply because a flight is cancelled also for economic reasons as a result of stricter entry regulations due to the Corona pandemic and a resulting decrease in bookings/increase in cancellations.

After the load factor of the flight in question had dropped to 15% within a few weeks due to stricter entry regulations in the destination country, the airline considered the operation of the flight unjustifiable for both economic and ecological reasons. The flight was therefore cancelled and the passengers rebooked on an alternative flight. The final destination was finally reached with a delay of 27 minutes.

The court held that:

„For the court, it is clear that economic reasons played a role, as the flight could have easily been operated with the lower load factor, but finally such economic reasons do not preclude the existence of an extraordinary circumstance.

The reason for the cancellation was the declining load factor due to the Covid-19 pandemic. The decision to cancel the flight because of the declining load factor due to stricter entry requirements is ultimately not objectionable and does not lead to extraordinary circumstances being inapplicable. In the court’s view, the defendant does not have to prove economic unreasonableness, as demanded by the plaintiff. According to the court, the assumption of an extraordinary circumstance would only be precluded if the cancellation had been based solely on economic considerations and there had been no connection to the Covid 19 pandemic.“

According to the court, the exact circumstances of the individual case always have to be examined in order to determine whether, under certain circumstances, exclusively business considerations played a role.
Contrary to the plaintiff’s view, the court also held that the airline did not have to present any concrete figures or facts with regard to profitability, as it was comprehensible to the court that the operation of the flight would no longer have been economically justifiable in view of such a reduced load factor.

Since the plaintiff has appealed against the judgement, it is not final yet.

Source

AG Erding 03.09.2021, file ref: 102 C 2135/21

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