Passenger Claims under Regulation 261/2004: The impact of extraordinary circumstances
Regulation 261/2004 entitles passengers, in the event of cancellation or long delay, to claim fixed compensation, 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 examine extraordinary circumstances and reasonable measures, as well as the impact of extraordinary circumstances on subsequent flights in an airline’s flight operations.
Extraordinary circumstances in the event of long delays and cancellations
If a long delay or cancellation is due to extraordinary circumstances, the airline is not obliged to pay compensation to passengers. According to Regulation 261/2004, this applies, for example, in the case of:
“(…) political instability, weather conditions preventing the operation of the flight in question, security issues, unexpected flight safety issues and strikes affecting the flight operations of the airline operating the flight.”
An extraordinary circumstance also exists when:
“(…) a decision by air traffic control for a specific aircraft on a specific day causes a long delay, an overnight delay or the cancellation of one or more flights operated by that aircraft, (…)”
This is why no compensation is payable in such cases, as these are generally events over which the airline has little or no control. Examples include thunderstorms preventing a flight from departing or a bird strike. These are external circumstances over which airlines have no control.
Reasonable measures in the event of delay or cancellation
When an extraordinary circumstance is invoked, the court will also assess whether the airline has taken all reasonable measures to prevent or minimise the delay. Prevention will generally not be readily possible, as extraordinary circumstances must not be inherent to the conduct of an airline’s operations. Minimising the delay, on the other hand, offers more options. Examples include diverting a flight in the event of bad weather, or cancelling and rebooking onto the next available flight.
Repercussions of extraordinary circumstances
In LVH Advocaten’s aviation practice, we regularly see flights being disrupted by an extraordinary circumstance on a preceding flight that directly affects the subsequent flight.
Air traffic control decisions – impact of CTOT
This occurs, for example, in the case of decisions made by air traffic control. An airline is obliged to comply with such decisions under the Aviation Act. But when does an extraordinary circumstance have an impact?
An airline must submit a plan prior to the flight, specifying a departure time (EOBT, Estimated Off Blocks Time). However, even after such a plan has been approved, air traffic control may, by means of a so-called slot message (a decision by air traffic control), impose a later departure time (CTOT, Calculated Take-off Time). Air traffic control does this because it is required to regulate airspace. As a result of these slot messages, a flight may therefore only depart later than originally planned. There may be various reasons for this, such as a strike or a military exercise. However, the reason for imposing the slot is irrelevant, as the airline is obliged to comply with it. See the judgement of the District Court of North Holland of 30 November 2022.
Case law has now confirmed on several occasions that the issuance of such a CTOT constitutes an extraordinary circumstance. Furthermore, the question has regularly arisen as to whether that CTOT also affects a subsequent flight. Case law has held that where there is a causal link (direct effect) between the delay to the subsequent flight in question and the CTOT issued for the preceding flight, the extraordinary circumstance may also apply to the subsequent flight. See, for example, the judgement of the District Court of North Holland of 8 February 2023.
Do you have any questions about passenger claims and extraordinary circumstances?
LVH Advocaten regularly handles passenger claims on behalf of airlines and therefore has extensive knowledge of the aviation sector and the issues that arise within it. If you are an airline and would like more information about passenger claims or an insight into how we handle these claims, please feel free to contact Gentia Niesert without obligation.
