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Right to compensation Regulation 261/2004 in case of multiple flight delay circumstances?

dinsdag 19 januari 2021

Airlines are subjected daily to various circumstances that may lead to a delay or cancellation of the scheduled flight. However, such disruption does not always lead to the obligation to pay compensation to passengers. In case of extraordinary circumstances that could not have been avoided even by taking all reasonable measures, no compensation is due.

LVH Advocaten regularly assists airlines in handling claims from passengers under EU Regulation 261/2004. This Regulation provides rules on compensation to air passengers in case of denied boarding, cancellation and long delays (3 hours or more) of flights.

The Court of Justice of the EU often deals with cases regarding Regulation 261/2004. In this article we take a closer look at a special situation that was handled by the Court. What if a flight has been delayed for a long time due to two or more circumstances, not all of which have the label extraordinary. Is there a right to compensation for passengers under the Regulation in those situations?

Pešková Judgment

In this judgment, passengers were to be transported from Bulgaria to the Czech Republic. However, the flight preceding the passengers' flight faced two problems. First, there was a technical problem which took 1 hour and 45 minutes to repair. After that, the aircraft departed. However, during landing a bird-strike occurred. As a result, it was necessary to check the technical condition of the aircraft. After checking the flight re-departed. The total delay in arriving at the final destination was 5 hours and 20 minutes. So, there was a delay of more than 3 hours, but was there also a right to compensation?

Two or more causes of flight delay

In principle, according to the CJEU, when there is a delay of more than 3 hours at the final destination, a claim for compensation under Article 7 of the Regulation can exist, unless there is an extraordinary circumstance. In this case, however, the first part of the delay was not an extraordinary circumstance. In principle, resolving a technical defect is inherent in the normal exercise of an airline's business. The bird strike, on the other hand, is an external cause beyond the airline's control. The bird strike therefore does constitute an extraordinary circumstance as referred to in recital 14 of the preamble to the Regulation.

In the Pešková ruling the court ruled that in case of two or more causes, the delay caused by an extraordinary circumstance must be deducted from the total duration of the arrival delay. In this way, it can be assessed whether that non-extraordinary part of the delay amounts to 3 hours or more and therefore whether or not compensation can be claimed.

Extraordinary circumstance should not be counted

In short, the flight delay is effectively split into that part of the delay caused by an extraordinary circumstance and the part of the delay not caused by an extraordinary circumstance. For airlines, this is an important outcome. In practice, it is not unusual for a flight to be affected by multiple factors that can lead to a delay or cancellation. Consider, for example, the combination of technical defects and slot messages from air traffic management or the late arrival of the preceding flight and bad weather conditions. The Pešková judgment made it clear that different delay-causing events must be considered separately. Only if a delay of 3 hours or more was caused by a non-ordinary circumstance the Regulation can be invoked.

Need a lawyer in aviation?

Our aviation specialist lawyers are happy to assist you in all your legal matters, including any claims based on EU Regulation 261/2004. Please feel free to contact us at +31-10-2092777.

Michelle Reevers

aviation, enterprise and business 

+31 (0)10 209 27 75
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