Passenger claims 261/2004: Effect of extraordinary circumstances
Regulation 261/2004 allows passengers to claim lump-sum compensation in case of cancellation or long delay, unless the cancellation or delay of the flight is due to extraordinary circumstances and the airline has taken all reasonable measures. But what if the extraordinary circumstance occurred on a previous flight?
In this article, we look at extraordinary circumstances and reasonable measures and the effect of extraordinary circumstances on successive flights in an airline’s flight operations.
Extraordinary circumstances in case of long delay and cancellation
If a long delay or cancellation is due to extraordinary circumstances, the airline is not liable to compensate passengers. According to Regulation 261/2004, this occurs for example in the case of:
“(…) political instability, weather conditions that prevent implementation of the flight in question, security problems, unexpected flight safety problems and strikes that affect the operations of the airline operating the flight.”
An extraordinary circumstance also exists when:
“(…) an air traffic management decision for a specific aircraft on a specific day causes a long delay, an overnight delay or the cancellation of one or more flights of that aircraft, (…)”
Reason why no compensation is due in this case is because these are mostly events over which the airline has little or no control. Think, for example, of thunderstorms preventing the departure of a flight or a collision with a bird (bird strike). These are external situations against which airlines cannot do anything.
Reasonable measures in case of delay and cancellation
When invoking extraordinary circumstances, the court also tests whether the airline has taken all reasonable measures to prevent or limit the delay. As a rule, prevention will not easily be possible as extraordinary circumstances cannot be inherent to the performance of an airline’s activities. Limiting the delay, on the other hand, offers more options. Consider, for instance, a diversion in case of bad weather or cancellation and re-booking to the next available flight.
Effect of extraordinary circumstances
In LVH Advocaten’s aviation practice, we see with some regularity that flights are hampered by an extraordinary circumstance on a preceding flight that directly affects the following flight.
Air traffic control decision – knock-on effect CTOT
This occurs, for example, in the case of air traffic control decisions. An airline is obliged to follow those decisions in view of the Aviation Act. But when does an extraordinary circumstance have effect?
An airline submits a plan prior to the flight in which it includes a departure time (EOBT, Estimated Off Blocks Time). However, even after approval of such a plan, air traffic control may impose a later departure time (CTOT, calculated take-off time) by means of a so-called final notice (air traffic control decision). Air traffic control does this because it has to regulate airspace. Final messages therefore mean that a flight may depart later than originally planned. This can have all kinds of reasons, think of a strike or a military exercise. However, the reason for imposition is irrelevant, as the airline is obliged to follow the slot. See the judgment of the North Holland District Court of 30 November 2022.
Case law has since confirmed on several occasions that the issuance of such a CTOT constitutes an extraordinary circumstance. Furthermore, with some regularity, the question has arisen whether that CTOT also carries over to a subsequent flight. Case law has held that when a causal link (direct effect) exists between the delay of the succeeding flight in question and the CTOT issued to the preceding flight, the extraordinary circumstance can also apply to the succeeding flight. See, for example, the judgment of the North Holland District Court of 8 February 2023.
Questions about passenger claims and extraordinary circumstances?
LVH Advocaten regularly handles passenger claims for airlines and thus has extensive knowledge of aviation and its perils. If you are an airline, you would like more information on passenger claims or an insight into how we handle these claims. Please feel free to contact Gentia Niesert.
