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Claim against Lufthansa already rejected by SOEP

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I had some issues with Lufthansa. In short, I had a 55 minute connection from Heathrow to Toronto via Frankfurt. Due to delays on the ground in Heathrow we landed in Frankfurt 10 minutes late and arrived at the gate 21 minutes late.


I accept they allege the delay was due to ATC, and because of this the SOEP refused the complaint as they deemed this constituted extraordinary circumstances. However, especially with an airport like Heathrow where all landing/take-off slots are full, I don't think delays caused by ATC are extraordinary. A flight departure time at Heathrow is at the whim of ATC and there is always a queue controlled by ATC and not dictated by the exact take off time of a plane.


Furthermore, I don't believe a delay of 10-21 minutes (depending how it is measured) is extraordinary, in fact Lufthansa only have 70.1% on-time performance. I believe the issue is their tight scheduling and they are using this as an excuse to avoid paying out.


On this basis I am considering using the European Small Claims procedure. Below is the outline of my complaint. Does anyone have any suggestions?


My only reservation is the reason the SOEP refused the complaint is that the captain noted down the reason for the delay as IATA code 89, which means ATC restriction at departure point. So to a degree it is whether the judge/adjudicator just accepts this or not.




- Ticket purchased London Heathrow to Toronto via Frankfurt, travelling with Lufthansa. Returning with Air Canada. For the purposes of the claim, the issue was due to a fault with Lufthansa on the outbound journey. The inbound Air Canada journey remained unaffected


- Short delay on London-Frankfurt leg (LH907) meant the flight landed in Frankfurt at 16:15 and arrived at the gate at 16:26. Scheduled arrival time was 16:05


- Connecting flight to Toronto was scheduled to leave at 17:00. The late arrival of Lufthansa flight LH907 allowed only 34 minutes to catch this flight, compared to the minimum connection time for Frankfurt Airport of 45 minutes


- Connecting flight to Toronto LH6780 was missed due to late arrival of flight LH907


- Rebooked by Lufthansa finally arriving in Toronto, via London Heathrow, on AC869 over 16 hours late


In Lufthansa's defence, they claim the delay was due to IATA code 89z, indicating a delay caused by Air Traffic Control at the departure airport.


I do not dispute their reasons. I dispute whether they constitute extraordinary circumstances.


Under many circumstances, delays caused by Air Traffic Control would be classed as extraordinary circumstances. However, traffic management on the ground, especially at busy airports, is completely routine and minor delays such as in this case are to be expected.


In an airport such as Heathrow, where all landing and take-off slots are occupied, airlines know that their advertised departure times are not accurate and their place in the take-off or landing queue will be decided by Air Traffic Control. It is therefore unreasonable for Lufthansa to use this routine activity as an excuse to avoid their responsibilities under EU 261.


As per ECJ, case 294/10, Eglitis et al. vs. Latvijas Republikas Ekonomicas ministrija. judgement of 12 May 2011, generally, at least minor delays should be expected within daily operations and therefore need to be factored in accordingly during flight planning. Clearly Lufthansa should not advertise schedules so tight when connections leave no buffer for minor delays.


According to Art. 5 (1) lit. c) in conjunction with Art. 7 (1) lit. c) regulation (EC) No 261/2004 to 600.00 EUR concerning flights of 3,500 km or more. In accordance with ECJ jurisdiction (cases Sturgeon, 19.11.2009, C-402/07 and C-432/07; case Nelson, 23.10.2012, C-581/10 and C-629/10; case Folkerts, 26.02.2013, C-11/11), this regulation applies respectively for a flight delay if the delay at the final destination amounts to three hours or more. In the case at hand, the final destination Toronto was reached with a delay of more than 16 hours. The flight distance between London-Heathrow and Toronto amounts to 5,723 km.



Edited by eshroom

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Does anyone have any advice/suggestions on this one?

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