Extraordinary Circumstances -Flight Claims

Extraordinary Circumstances – Flight Claims – EC 261/2004

The Regulation EC 261/2004 within its recitals 14 and 15 explains what is an extraordinary circumstance, here it says;

“(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.

(15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.”

When we assess Extraordinary Circumstanses there are three main points that we are looking for.

1. Is the Event within the airlines control?

2. Is the event Inherent in the normal exercise of the activity of the air carrier? and;

3. Has the airline taken all reasonable measures to avoid the delay or cancellation?

Extraordinary Circumstances – Flight claims – Examples and Case Law

Friederike Wallentin-Hermann
v
Alitalia – Linee Aeree Italiane SpA,
Case C‑549/07

This case deals with the definaition of Extraordinary and Defining what is inherent in the normal exercise of the activity of the air carrier. See below…

“23 Although the Community legislature included in that list ‘unexpected flight safety shortcomings’ and although a technical problem in an aircraft may be amongst such shortcomings, the fact remains that the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 in the preamble to that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.

24 In the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. It is moreover in order to avoid such problems and to take precautions against incidents compromising flight safety that those aircraft are subject to regular checks which are particularly strict, and which are part and parcel of the standard operating conditions of air transport undertakings. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity.

25 Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004.

26 However, it cannot be ruled out that technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism.”


Sandy Siewert,
Emma Siewert,
Nele Siewert
v
Condor Flugdienst GmbH,
Case C‑394/14,

This case deals with the topic of inherency, in particular when an event is, on the face of it, outside the airlines immediate control.

“17 Article 5(3) of Regulation No 261/2004 must be interpreted strictly since it constitutes a derogation from the principle that passengers have the right to compensation (judgment in Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 20). Moreover, not all extraordinary circumstances confer exemption and, in addition, the onus is on the air carrier seeking to rely on them to establish that they could not, on any view, have been avoided by measures appropriate to the situation — that is to say, by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned (judgment in Eglītis and Ratnieks, C‑294/10, EU:C:2011:303, paragraph 25).

18 More specifically, as regards technical problems with an aircraft, the Court has held that, although such technical problems may be categorised as extraordinary circumstances, the fact remains that the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 of that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin (judgment in Wallentin-Hermann, EU:C:2008:771, paragraph 23).

19 However, as regards a technical problem resulting from an airport’s set of mobile boarding stairs colliding with an aircraft, it should be pointed out that such mobile stairs or gangways are indispensable to air passenger transport, enabling passengers to enter or leave the aircraft, and, accordingly, air carriers are regularly faced with situations arising from their use. Therefore, a collision between an aircraft and any such set of mobile boarding stairs must be regarded as an event inherent in the normal exercise of the activity of the air carrier. Furthermore, there is nothing to suggest that the damage suffered by the aircraft which was due to operate the flight at issue was caused by an act outside the category of normal airport services (such as an act of sabotage or terrorism) and would thus, applying the case-law of the Court (judgment in Wallentin-Hermann, EU:C:2008:771, paragraph 26), be covered by the term ‘extraordinary circumstances’, which is what Condor had to demonstrate before the referring court in accordance with the case-law cited in paragraph 17 above.

20 Consequently, such an event cannot be categorised as ‘extraordinary circumstances’ exempting the air carrier from its obligation to pay the passengers compensation in the event of a long delay to a flight.”

Andrejs Eglītis,
Edvards Ratnieks
v
Latvijas Republikas Ekonomikas ministrija,
intervening party:
Air Baltic Corporation AS,
Case C‑294/10

This Case deals with the topic of defining ‘Reasonable Measures’ that airlines take in order to avoid a delay or cancellation.

“26 It should be noted at the outset that, very often, the occurrence of extraordinary circumstances makes it difficult, if not impossible, to operate a flight at the scheduled time. Thus, the risk of delay to a flight, which may ultimately result in its cancellation, is the usual – and therefore foreseeable – detrimental consequence for passengers when extraordinary circumstances arise.

27 It follows that the air carrier, since it is obliged, under Article 5(3) of Regulation No 261/2004, to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of extraordinary circumstances.

28 More particularly, to prevent any delay, even insignificant, to which extraordinary circumstances have given rise inevitably leading to cancellation of the flight, the reasonable air carrier must organise its resources in good time to provide for some reserve time, so as to be able, if possible, to operate that flight once the extraordinary circumstances have come to an end. If, in such a situation, an air carrier does not, however, have any reserve time, it cannot be concluded that it has taken all reasonable measures as provided for in Article 5(3) of Regulation No 261/2004.

29 With regard, firstly, to the determination, generally, of a minimum reserve time to which the national court refers, it should be noted that, at paragraph 42 of Wallentin-Hermann, the Court held, in that connection, that it was necessary to ascertain whether the air carrier concerned had taken measures appropriate to the particular situation, that is to say, measures which, at the time of the occurrence of the extraordinary circumstances whose existence the air carrier is to establish, met, inter alia, conditions which were technically and economically viable for that carrier.

30 The Court therefore established an individualised and flexible concept of reasonable measures, leaving to the national court the task of assessing whether, in the circumstances of the particular case, the air carrier could be regarded as having taken measures appropriate to the situation.

31 It follows that Article 5(3) of Regulation No 261/2004 cannot be interpreted as requiring, as a ‘reasonable measure’, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise.

32 With regard, secondly, to the assessment of the reasonable nature of the measures taken to provide for a reserve time so as to prevent, if possible, the delay resulting from extraordinary circumstances leading to cancellation of the flight, it should be stated at the outset that that assessment must be carried out not, as the national court seems to suggest, with regard to the delay in relation to the aeroplane’s scheduled departure time, but taking account of the delay that may exist at the end of the flight operated in the new conditions to which the extraordinary circumstances have given rise.

33 In the context of such an assessment, the only issue to matter is the ability of the air carrier to operate the programmed flight in its entirety – the flight being regarded as a ‘unit’ of transport performed by an air carrier which fixes its itinerary (see, to that effect, Case C‑173/07 Emirates Airlines [2008] ECR I‑5237, paragraph 40) – despite the fact that extraordinary circumstances have given rise to some delay. A delay as initially noted, at the time when those extraordinary circumstances come to an end or in relation to the time scheduled for departure, may increase thereafter, on account of a series of various secondary complications connected to the fact that the flight at issue could not be properly operated, in accordance with the scheduled timetable, such as difficulties related to the reallocation of air corridors or accessibility conditions at the destination airport, including the possible total or partial closure of that airport for part of the night. The result could be that, by the end of the flight, the delay will ultimately be appreciably longer than the delay as initially noted.

34 The assessment of the reasonable nature of measures taken by the air carrier when organising its flight must, consequently, also take account of those secondary risks, insofar as their constituent elements are foreseeable and calculable.

35 As to the ability of the air carrier to operate the programmed flight in its entirety in those conditions, it must be assessed in light of the criteria formulated by the Court in Wallentin-Hermann. Such an assessment must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.”
The main categories of events that are likely to be an extraordinary circumstance include:

Acts of terrorism or sabotage
Political or civil unrest
Bird Strikes
Security risks
Strikes relating to, airport staff, ground handlers, or air traffic control
Weather conditions incompatible with the safe operation of the flight
Hidden manufacturing defects.

If you do not believe your flight was affected by an extraordinary cirmcumstance and you should be entitled mto compensation go to our claim form to start your claim. Or visit our flight claim page