REGULATION EC 261/2004 AND EXTRAORDINARY CIRCUMSTANCES  
 
 


If you have a potential right to compensation for compensation from an airline you will sooner or later run up against the term "extraordinary circumstances".

This is a complex area. However, it is important to understand this concept fully.

It is mainly because this concept is so widely misunderstood that there is so much controversy. It is also the reason why passengers are unsuccessful in obtaining the compensation they feel they are entitled.

It is a difficult and voluminous area. You may have been frustrated at your own efforts to get to grips with the area.

In simple terms, unless you invest the time and energy into understanding the concept of extraordinary circumstances, you run the risk of being given the runaround.

So you have being trying to get to grips with extraordinary circumstances and are struggling. Don't blame yourself.

Unless you are a qualified lawyer and have a detailed knowledge of airline operations it is most difficult even to frame the right questions to ask.

Fortunately Flightmole can help.

Secondly, there is a lot of confusing misinformation promulgated about this area.

Therefore, in dealing with extraordinary circumstances we have to provide a legal treatment and interpretation of this concept.

If you are not a trained lawyer you will have to think like a lawyer from now on.


Preliminary points about thinking like a lawyer

When reviewing your rights under EC 261/2004 there are two important sources:

- The Regulation itself

- Judicial Precedent on this Article

Interpretation of Regulation EC 261/2004


The Regulation as you will know provides monetary compensation in the event of a cancellation. The regulation also provides a defence to the airline to pay compensation if the airline can show that the the cancellation came about due to "extraordinary circumstances."

The concept of extraordinary circumstances is just one element of the defence.

The defence is that there have been extraordinary circumstances to which the airline could not reasonably have been avoided.

The airline is not obliged to pay compensation if it can prove that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

Extraordinary Circumstances are not defined in the body of the Regulation.

There are examples of what might constitute "extraordinary circumstances". These are contained within the introduction or in legal parlance "The Recitals" to the Regulation.
The Recitals are not strictly part of the Regulation and don't constitute part of the Regulation. At most they are merely suggestive or persuasive. They are not binding.

In the recitals the Regulation states “such extraordinary circumstances might occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks unexpected flight safety shortcoming and situations that affect the operation of an operating air carrier".

At this point it is most important to realise that the treatment and interpretation of this regulation is needed to be subject to a legal interpretation.

To someone who is not a qualified lawyer this may be difficult.

A particular degree of pedantry may be required. This is often beyond the competence and interest of most commentators of this regulation including journalists and consumer interest group.

When most commentators refer to extraordinary circumstances they search for a convenient shorthand or truncation of the concept. Even airlines do this.

This may be unhelpful and adds to the confusion surrounding this area.

Many commentators refer to the defence as circumstances that are being "beyond the control of the airline".

This is not the same as the concept provided for within the Regulation and because the concept is not further expanded upon or defined airlines are capable of filling this void of interpretation by their own self-made interpretation of what the defence they would really like to have.

However it is most important to realize that extraordinary circumstances bring into account where they could not have been avoided even if all reasonable measures had been taken.

The area of extraordinary circumstances believed most often cited by airlines relates to "technical problems".

It is upon this area of technical problems that we an area we will concentrate upon.

You are at an airport and your flight has been cancelled because the aircraft has a "technical problem". The airline may present this technical problem as an extraordinary circumstance that justifies the cancellation of the flight. The airline also relies upon this technical problem as a legitimate defence to avoid paying monetary compensation to passengers.

The defence of "technical problems" is controversial for many reasons.

Firstly unless you know the full circumstances surrounding this "technical problem" and can review the detail of these circumstances and supporting evidence it is difficult to asses whether an airline has a legitimate defence to the obligation under the Regulation.

However the airline under the Regulation has the burden of proving the defence

Therefore although an airline can present what is a prima facie defence- this isn't enough-it has to go further. It has to demonstrate the full defence.

The aircraft has a technical problem. This could be a legitimate defence it may not be.

For example suppose the aircraft Captain has spilled his pre-flight cup of coffee over the aircraft flight management computer. This grounds the aircraft.

Arguable this might conceivably be an extraordinary circumstance (he doesn't spill coffee every day-but it is not an unknown event) but it is certainly an event that could reasonably have been avoided.

Take the example one step further what if the flight management computer developed a spontaneous internal fault. Is this an extraordinary circumstance?

A large jet aircraft has literally millions of working components and inevitably these fail. Indeed if a spontaneous failure of an aircraft component caused the grounding of aircraft -very few aircraft would leave the ground each day-at least anywhere near to schedule.

Did the component have a backup, what was the maintenance regime applied to that component and was this followed etc etc?

A detailed technical investigation would be needed to understand the legitimacy of the defence and whether it came within the allowable ambit of an extraordinary circumstances that the airline and whether they had taken all reasonable measures to avoid the circumstance.

Technical problems and operational set backs-"the dog ate my flight plan"

The initial issue we should ponder is to try to distinguish between any initial "technical failure" or "bit of fog" as an operational "set back" and whether that in itself delivers to an airline an exceptional circumstance. This exceptional circumstance has to be “extraordinary”.

Is it true to say that an airline could in almost always discover some form of disruption to the operational harmony which the airline could then present as an "excuse" to justify that an aircraft could not leave the ground. ("The dog ate my flight plan” type of excuse).

As an airline is not omnipotent could any one of these "set-backs", when considered in isolation, justifiably be said to be beyond their control-? Probably yes.

It is true that an airline can not control the unexpected dietary wants of canines. However should not the airline keep stray dogs out of the pilot briefing room and could the pilot just draft another flight plan to replace the one now being digested by our hungry dog?.
Therefore the conduct and anticipation of the airline is relevant both pre and post the surfacing of the operational “set back”.
Therefore what appears to be relevant is how, in any particular set of circumstances, an airline prepares and/or reacts to each and every one of these operational set backs.

The SAS case question deals specifically with "technical problem" questions-i.e. the inner airline voodoo of what keeps an aircraft in the air.

An aircraft with a technical problem can not in all circumstances by classed as an extraordinary event. Perhaps not even in most cases. Undoubtedly in some cases it could be.

Let us look at an extraordinary event and then see when it becomes plain ordinary and how an airline responds to these events.

Colin the 20m troll as an extraordinary circumstance and technical problem

If a 20 meter tall troll named Colin descended upon Copenhagen airport and took a bite out of the wing on an SAS Airbus then just about everybody would agree that this is an extraordinary circumstance

Colin, in his own extraordinary way, has brought about a technical problem with the aircraft.

If Colin gained the habit of visiting Copenhagen airport every Thursday afternoon at 4pm this starts to become less extraordinary and just plain ordinary and predictable.

We suppose there may be a distinction between an extraordinary aviation industry event and a generic extraordinary event.

For a person walking down a street being struck by lightening is an extraordinary event. For an aircraft this is much less obvious. After all an aircraft is designed on the assumption that it will be struck by lightning. The average pedestrian is not designed for the event of a lightning strike.

However the question recently posed to the European court in Kramme v SAS is not that technical problems are extraordinary events but whether technical problems that cause flight cancellation are extraordinary events.

Next let us suppose that Giant troll Colin chews the wing tip of the Airbus but SAS has a spare aircraft available in the hanger next door. Colin's eating habits may not necessarily be said to cause a consequent flight cancellation. There is premature linkage of the notion of a technical defect with the automatic presumption of flight cancellation. What is needed is examination is the airline's conduct in reaction to the technical defect.

There is much more that we can observe and comment upon and we invite Flightmole users to do so in the forum.

For the moment let us suppose that operational set backs -which includes ordinarily occurring technical malfunctions could be argued as standard fare for airlines and can be distinguished from completely unforeseeable or even reasonably unforeseeable events.

As can be seen the concept or extraordinary circumstances has the potential for complex analysis.

However the key point for the moment is which party in any argument-airline or passenger-has the burden of justifying the defence and also the burden of dealing with any supposed ambiguity.

Most legislation is indeed capable of differing interpretations and hence the function of courts to determine any such ambiguities.

Anecdotal accounts suggest that airlines use the supposed ambiguity in the legislation to the airline's advantage. Journalist observers often then level simplistic criticism at the legislation itself as not being "clear enough" or accusing the legislation of being full of "loop holes".

Flightmole provides an expert service to review claims for cancellation compensation and advance these claim on a no-win no fee basis.

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