Cancellation or delay of flights: the exceptional circumstances which exclude the right to compensation

In a previous article we analyzed the rights of passengers in cases of denied boarding, cancellation or delay of the flight and the consequent obligations of airlines to provide them with assistance , information on the rights and compensation, variable between 250 and 600 Euro, depending on of the flight.

However, contrary to the obligations of assistance and information, the right to compensation is due to passengers only if:

1. the delay of the flight to the destination airport is more than 3 hours;
2. they have been informed of the cancellation of the flight and any possible alternative transport:
   • Less than two weeks before the scheduled departure time;
   • or in the period between two weeks and seven days before the scheduled departure time, but it was offered to them to leave with rerouting more than 2 hours before the scheduled departure and to reach their final destination less than 4 hours after the estimated time of arrival;
   • or less than 7 days before the scheduled departure time, but it was offered to them to leave with rerouting over an hour before the scheduled departure and to reach their final destination less than two hours after ‘estimated time of arrival.

Exceptional circumstances

A further obstacle to the payment of compensation is represented by exceptional circumstances : all those cases which, due to their characteristics of unpredictability and inevitability, are alone sufficient to prevent or delay the departure or arrival of the flights and to justify the non-payment to passengers of compensation .

In these cases, the ‘ art. 5, paragraph 3 , of the European Regulation n. 261/2004 prescribes that both burden of Airline demonstrate that the cancellation or the delay of the flight are due to exceptional circumstances and that these are inevitable, even adopting all appropriate measures.

The Company, therefore, imposes a presumption of liability for any inconvenience caused to passengers, from which it can rid trying not only the existence of a causal link between the event (cancellation or flight delay) and exceptional circumstance, but also the ‘inevitability of the latter.

What are the exceptional circumstances?

The European Court of Justice, in cases subsequent to the issue of EC Reg. 261/2004, has never provided a list of exceptional circumstances likely to exclude the responsibility of companies towards their passengers. He pointed out, however, that they should be evaluated on a case by case basis and relate to an event that meets two additional conditions:

1. It is not inherent in the normal exercise of an air carrier;
2. escape to the actual control of the carrier, by its nature or origin.

However, by pronunciations published so far, shows a well-defined series of situations defined as “inevitable”:

• the adverse weather conditions that make it impossible to safe flight;
• the security concerns of the flight caused by external factors (eg the eruption of a volcano).
• ‘s political instability ;
• The strikes that affect the operation of the air carrier.

The cases excluded

The events do not qualify as exceptional circumstances, however, the European Court has identified the technical problems of the aircraft and the impact of the boarding ladder against a plane.

Technical problems

According to the Court, the technical problems caused by a lack of maintenance of an aircraft can not be classified as extraordinary circumstances, even where they have occurred unexpectedly.

For example, a failure caused by the premature defectiveness of some components of an aircraft may constitute, per se, an unexpected event. The Court, however, believes that it falls within the normal exercise of an air carrier and, therefore, can not be considered “inevitable.”

The only exception is the vices hidden manufacturing or damage to aircraft caused by acts of sabotage or terrorism only these technical problems, according to the case can be classified as extraordinary circumstances.

Shock of a mobile boarding ladder against an aircraft

Another event that the Court does not consider exceptional circumstance is the impact of a boarding ladder against the aircraft, as deemed inherent in the normal exercise of an air carrier.

The law, indeed, considering the stairs or moving walkways essential part of the air transport of passengers and, for this reason, carriers face daily problems linked to the use of such equipment.

The burden of proof borne by the Airline

Finally, it should be added that the Airline, if it justifies the non-payment of compensation to the existence of an exceptional circumstance, always has the burden of proving the latter, if the passenger or the Civil Aviation Authority expressly so request.

In particular, the airline must provide the consumer or the national competent body, free of charge, the evidence of the exceptional circumstances indicated (eg .: extracts from logbooks or reports on events and / or external documents and statements) in compliance with national provisions on access to documents.

This principle – expressed by the European Commission in its Communication No. 214/2016 – is justified by the fact that only the carrier is in possession of all documentation relating to your flight is canceled or delayed, and therefore, in a position of strength that allow to arbitrarily deny the payment of compensation, indicating the exceptional circumstances permitted by law.

IN SUMMARY

An important obstacle to the payment of compensation in favor of the passenger, in case of delay or cancellation, is represented by extraordinary circumstances : all those transactions which, because of their characteristics of unpredictability and inevitability, are alone sufficient to prevent or delay the departure or arrival of flights.

Although the European legislator has not made a list, the jurisprudence of the EU Court of Justice has  ruled out the exceptional circumstances the technical problems of the aircraft and the impact of the boarding ladder against the plane, considering, however, always “inevitable” these events:

• the weather conditions that make it impossible flight:
• the security problems  caused by external factors (eg the eruption of a volcano.
• ‘s political instability and s cioperi that affect the operation of an operating air carrier.

Finally, if the airline justify the non-payment of compensation to the existence of an exceptional circumstance which causes the delay or cancellation of a flight, always it has the burden to prove it, if the passenger or the CAA makes specific request .

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