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The short story is that I (EU citizen) booked a flight, the government imposed an entry a policy change for me post-booking, and the flight company (Lufthansa) refuses to refund me (although re-booking has been suggested). This article [1] says that I should be entitled to a refund under force of circumstances, the flight company says I am not.

Should I be entitled to a refund?

In particular, I booked a flight from Lufthansa on the July 17th. The flight date is 22nd of August. On the 17th of July, according to the official rules, I could travel to Hong Kong. However, the government announced a policy change on the 16th of August, so some days ago [2]. Starting 20th of August, people from my country can travel to Hong Kong only if they are fully vaccinated at the time of the boarding. Due to this governmental change, I am barred from boarding the flight on the 22nd of August (I am vaccinated, but the time by which I am considered to have sufficient antibodies is on the 23rd, so two weeks after my 2nd vaccination).

I have requested the company for refund on three occasions (two phone calls, one chat on the website). However, I've been told that there will be no refund because I can not board due to restrictions, whilst I have been trying to repeatedly say that I am not requesting for a refund due to not reading travel restrictions, but due to an abrupt travel entry requirement for me which I could not anticipate at the time of the booking.

Quoting [1]:

"According to the German travel law expert Prof. Dr. Ernst Führich, an officially imposed entry ban is a case of force of circumstances. As a result, package holidays and individually booked flights can be cancelled free of charge."

Do you know if I should be entitled to a refund or not?

Edit: To clarify, the question is more specifically: "Does a formally imposed travel entry requirement change that bars boarding of a passenger constitute unforeseeable extraordinary circumstances?" Lufthansa seemingly uses the argument that covid-related flight cancellations constitute unavoidable extraordinary circumstances in order not to have to compensate over covid-related cancellations (rightly so). However, Lufthansa seemingly simultaneously states that a passenger cancellation due to covid-related travel requirement change (same reason) constitutes avoidable extraordinary circumstances. However, both stem from the same cause. How can a covid-related travel travel requirement change be unavoidable only when it cancels a flight and thus works in the favor of the flight company?

[1] https://www.evz.de/en/travelling-motor-vehicles/travel-law/coronavirus-travel-advice.html

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  • Not sure all this talk of “a ban” is helpful to analyse the situation. There was no ban, Dutch/EU citizens were still allowed to fly. There was an additional obligation that was difficult for you to meet it is in principle not very different from a requirement to get a test. As an analogy, consider that getting a visa can also be a long and costly process that is not entirely under the control of the passenger and yet it's squarely on the passenger to make sure they do that in a timely manner.
    – Relaxed
    Aug 18, 2021 at 11:20
  • Relaxed The problem is that you can know that you will be needing a visa at the time of the booking, and thus you are right that it is squarely on the passenger to make sure they do that in a timely manner. However, the situation is closer to a government slapping a visa requirement on the traveller 2 days before your flight, and the approval is impossible to obtain within 2 weeks (even in theory). In such a case, it is not squarely on the passenger. The 2 weeks in this case is the time between the 2nd shot and the time by which I am considered fully vaccinated.
    – OTH
    Aug 18, 2021 at 11:24
  • Indeed but visa rules do change, visas can be refused or even rescinded and many circumstances can make a visa application impractical or impossible so the analogy still works. I understand that you felt blindsided but that doesn't mean you will easily find someone willing to make you whole. In any case, calling it a ban is wishful thinking, it's just a new obligation that some people will find easy to meet and other will not.
    – Relaxed
    Aug 18, 2021 at 11:30
  • Another analogy to consider is what would happen if you break a leg and your travel is ruined or even if you are stuck in the hospital. Here again, you're not at fault and cannot really do anything about it but airlines do not generally accept any responsibility either, they even sell separate cancellation insurance against these kind of events. Not everything that's out of your control can properly be called a ban, if you insist on looking at it that way, you will read legal opinions that do not actually apply and hit a wall with Lufthansa.
    – Relaxed
    Aug 18, 2021 at 11:36
  • Relaxed But Lufthansa calls covid-related regulation changes that cancel flights unavoidable extraordinary circumstances, which allows them not to compensate customers. By their own argument, a covid-related policy change that bars them from flying is an unavoidable extraordinary circumstance. A problem with the fuel tank is not an unavoidable extraordinary circumstance, so they need to compensate. Similarly, a broken leg is not an unavoidable extraordinary circumstance -- it can be avoided. Running into visa problems can be avoided as well, unless the government ad-hoc implements a new policy
    – OTH
    Aug 18, 2021 at 11:40

1 Answer 1

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You are not entitled to a refund

Lufthansa stands ready, willing and able to fly you to Hong Kong - they have fulfilled their contractual obligation. The fact that you can't fly is due to your inability to comply with government requirements - it is no different than if you turned up at the airport with an expired passport.

While German (and Dutch) law includes the doctrine of force majeure, which is what Prof. Dr. Ernst Führich is referring to, it doesn't apply here. Both parties are still able to fulfil their contractual obligations - Lufthansa can provide a seat on a plane and you can pay for it - there is no contractual obligation on either of you for that seat to be occupied.

Notwithstanding, the default position can be modified by contract. Lufthansa's contract says:

10.2.1. We will give you a refund as set out below if we cancel a flight, fail to operate a flight according to the timetable ...

and

10.3.1. If you request a refund for reasons other than those mentioned under paragraph 10.2.1. of this section, the amount of the refund will thus, provided the respective fare conditions stipulate as much, correspond to:

Airlines sell (and are allowed to sell) tickets with different conditions, including whether they are refundable or not.

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  • 1
    "Lufthansa stands ready, willing and able to fly you to Hong Kong - they have fulfilled their contractual obligation." I am not sure if this is really true. The company is now legally obligated not to let me board. I would argue that the situation is slightly different from an expired passport; an expired passport is a foreseeable cause at the time of the booking. A travel ban is not. From [1]: "You should argue with "force of circumstances", i.e. events that were not foreseeable during booking." [1] evz.de/en/travelling-motor-vehicles/travel-law/coronavirus-travel-advice.html
    – OTH
    Aug 18, 2021 at 7:15
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    @Otto in the current environment, governments imposing lockdowns is a consequence you should have foreseen. Lufthansa gave you the option of buying a refundable ticket to insure against this. You chose not to. How is that their fault?
    – Dale M ♦
    Aug 18, 2021 at 8:21
  • Also, Lufthansa won’t be the one preventing you from boarding if you turn up at the airport. Government customs agents will be.
    – Dale M ♦
    Aug 18, 2021 at 8:22
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    @TigerGuy I am not sure if it is fair to say that I am expecting to be able to travel exactly when and where I want, or that I seem to want the airline to assume all the risks. I do not.
    – OTH
    Sep 1, 2021 at 5:56
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    @Otto When you booked your flight on the July 17th 2021 you had good reason to assume that the rules could change, since they have changed regularly during the last 12 months of the pandemic. For a booking in January 2020 for March/April 2020, this was not the case and therefore were considered cases of force majeure.
    – Mark Johnson
    Sep 1, 2021 at 6:50

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