Merry Christmas: Europe gives air travelers an “extraordinary” present

By | December 24th, 2008

It’s an early Christmas present for air travelers: The European Union’s top court has ruled that passengers must be compensated if an airline cancels a flight for technical reasons, unless “extraordinary” events are to blame. And it said an airline must prove the circumstances are “extraordinary.”

Airlines have been dreading this day for years. Paragraph 12 of EU 261 defines an “extraordinary” circumstance as on that “could not have been avoided if all reasonable measures had been taken.” But the airlines have defined “extraordinary” in its broadest possible terms — including preventable mechanical delays and crew problems, as I’ve reported.

The European Court of Justice tightened the definition, saying “extraordinary” circumstances include a defect revealed by the manufacturer or acts of sabotage or terrorism.

The case involved a lawsuit against troubled Alitalia by an Austrian family. An engine defect on an Alitalia plane meant that the Austrian couple were unable to take their scheduled flight from Vienna to Brindisi via Rome, and the Italian carrier transferred them to an Austrian Airlines flight instead.

The Alitalia flight reportedly was canceled five minutes before the scheduled departure time, and the couple arrived at their destination nearly four hours late. The Alitalia plane’s defect had been discovered the day before.

Alitalia refused to pay the plaintiff, Friederike Wallentin-Hermann, compensation of 250 euros and 10 euros for telephone charges.

Wallentin-Hermannf took Alitalia to court in Vienna, and the Austrian Commercial Court asked the European Court to define the concept of “extraordinary circumstances” that could exempt an airline from paying compensation.

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The court ruled the following (to access the full text, search for C-549/07):

A technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

The frequency of the technical problems experienced by an air carrier is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded.

The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures’ within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)(c) and 7(1) of that regulation.

What does that mean for you? Finally, the “extraordinary circumstances” loophole has been closed. This applies to any flight to and from an EU member state, even to an American airline.

“It is now going to be difficult for airlines to keep hiding behind ‘exceptional circumstances,'” Hendrik Noorderhaven, chief executive of EUclaim, a Netherlands-based company that files compensation claims with airlines, told the Wall Street Journal.

Happy holidays.

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