EU261 Claims: Newsletter #13
- OSS Team
- Jul 10, 2024
- 9 min read
The Newsletter reports on case law regarding EU261 claims from around Europe that may be interesting for airline defence strategies or settlement decisions. Although EU261 is a European regulation, national courts unfortunately take very different approaches in its interpretation. Furthermore, court decisions from many jurisdictions are not published and are therefore difficult to access.
Given that our member law firms are experts in dealing with EU261 claims within their
respective jurisdictions, they have access to important precedents and are happy to share them.
DENMARK
Legal topic:
This preliminary ruling concerned the
interpretation of Article 5(3) of Regulation (EC) No 261/2004 regarding compensation for passengers in the event of long delays (+3 hours) due to extraordinary circumstances.
The Court ruled that insufficient baggage loading by the airport operator due to a staff shortage could constitute an extraordinary circumstance within the meaning of the Regulation.
Date:
16.05.2024
Court:
European Court of Justice (Ninth Chamber)
Case number:
C-405/23
Party names:
Touristic Aviation Services Ltd (TAS) vs. Flightright GmbH
On 4 July 2021, a flight operated by TAS from Cologne Bonn airport to Kos airport was delayed by 3 hours and 49 minutes. The primary cause of the delay was insufficient baggage loading by the airport operator due to a staff shortage (2 hours and 13 minutes).
On behalf of the delayed passengers, Flightright sought compensation from TAS under Regulation No 261/2004. The Amtsgericht Köln (Local Court, Cologne) ruled in favour of Flightright, ordering TAS to pay compensation without considering whether the delay constituted an extraordinary circumstance which would have exempted TAS from compensation pursuant to Article 5(3) of the Regulation. The Local Court reasoned that TAS did not take all reasonable measures to avoid or limit the delay. TAS appealed to the Landgericht Köln, which sought a preliminary ruling from the European Court of Justice on whether a shortage of baggage loading staff constitutes an extraordinary circumstance according to the Regulation.
The Court of Justice determined that staff shortage resulting in insufficient baggage loading could be considered an extraordinary circumstance on the condition that 1) the event, by its nature, was not inherent to the normal exercise of the airline’s activity, and 2) the event was beyond the airline’s actual control.
The Court noted that, while baggage loading contributes directly to the airline’s ability to provide their transportation service, on the other hand, since the loading of the baggage was managed by the airport operator, it was not the airline’s responsibility, nor did the airline appoint the airline operator to manage this task. For this reason, it could be seen as an external cause resulting in the delay.
The final determination regarding whether TAS met these criteria was left to the referring court.
Our comments:
From a positive viewpoint, the Court acknowledged that a delay can be seen as an
extraordinary circumstance if the cause is external. The Court distinguished between internal and external causes of delays. Examples of external causes include natural occurrences or delays caused by third parties.
The judgement contradicted previous case law, including C-394/14, where the Court adopted a stricter interpretation of Article 5(3) of the Regulation in situations where a third party is involved. In this case, the flight was delayed because the aircraft had been significantly damaged at the airport the previous night by a set of mobile boarding stairs, resulting in the aircraft having to be replaced. These stairs were handled by the airport operator and not the airline. The Court ruled that an event involving airport-operated mobile boarding stairs colliding with an aircraft did not qualify as an extraordinary circumstance. The Court reasoned that mobile stairs contribute directly to the airline’s ability to provide their transportation service, and for this reason, such an event is inherent to the normal exercise of the airline’s activity.
The new judgement therefore provides an opportunity for airlines to argue that a third party’s involvement in an event constitutes an extraordinary circumstance.
Legal topic:
This case concerned an unannounced,
unofficial strike (“wildcat strike”) by a
baggage handling company, which resulted in a delay. The baggage handling company and the airline had the same parent company, although the two companies were separate legal entities. The Court found that the strike constituted an extraordinary circumstance according to Article 5(3) of EU Regulation 261/2004.
Date:
23.04.2024
Court:
The Western High Court
Case number:
U2024.3392V (BS-31914/2023-VLR)
Party names:
Fuga Mora vs. SAS
On 14 February 2022, a flight operated by SAS from Copenhagen to Oslo was delayed by 4 hours and 18 minutes. The delay was caused by a wildcat strike at SAS Ground Handling Group A/S (SGH). SGH managed baggage for various airlines, including SAS, however SAS
had no influence or control over SGH's operations.
On behalf of the delayed passengers, Fuga Mora sought compensation from SAS under Regulation No 261/2004. The City Court of Ålborg ruled in favour of Fuga Mora, ordering SAS to pay compensation.
However, the High Court found that the delay was caused by external events beyond SAS's control, constituting extraordinary circumstances, cf. Article 5(3) of the Regulation, since SAS had no control over its sister company SGH. Furthermore, the High Court found that the passengers were rebooked on the next earliest flight to Oslo from Copenhagen, and that SAS had thereby demonstrated that the delay could not have been avoided, even if all reasonable measures had been taken, cf. Article 5(3).
As a result, SAS was exempt from the claim for compensation.
Our comments
As previously noted, the strike in question at SAS’ sister company (SGH), was a so-called “wildcat strike” as dealt with by the CJEU in the Krüsemann v. TUI-decision (C-195/17).
However, from reading the High Court decision, it appears that the High Court would have ruled in the same way even if the strike had been official, as in the Airhelp v. SAS-decision (C-28/20). Thus, the interesting fact about this decision is whether any strike in a sister company could ever be perceived as a strike in the airline company itself as the City Court had ruled.
Fortunately, in this case, the High Court found that the sister company should be perceived as any other normal third party, although it is fair to say that there is, of course, always a greater risk of being identified as one unit if two companies have the same parent company.
FRANCE
Legal topic:
Concept of “denied boarding” – Required documentation to travel after Brexit – Obligation or non-obligation of the carrier to inform the passenger of travel conditions.
Date:
20.03.2024
Court:
Court of Aulnay-sous-Bois
Case number:
11-23-004005
Party names:
AP v. Brussels Airlines
According to Article L211-8 of the Code of Tourism, only travel agents and entities organizing package tours are required to inform travellers about travel conditions. As Brussels Airlines is
merely a carrier, this responsibility lies with the passenger. Given that the passenger was a British citizen, he/she must have known about entry requirements following Brexit. Therefore, denied boarding due to the passenger's failure to present the necessary documents for travel to the Schengen area was justified under the terms of the Schengen Agreement.
GERMANY
Legal topic:
Economic sacrifice limit for cancellation due to Covid-19-Pandemic.
Date:
20.02.2024
Court:
Landgericht Berlin II
Case number:
30 S 16/22
Party names:
Confidential
The official entry restriction order in the form of quarantine and testing obligations during the Covid pandemic can justify extraordinary circumstances in accordance with Art. 5 para. 3 (EC) 261/04.
If the flight in question is cancelled due to a decline in bookings, it is sufficient to prove the economic sacrifice threshold if the airline's submission on revenue and flight-related costs enables the court to carry out a plausibility check.
Legal topic:
No bribery at the security check queue.
Date:
11.06.2024
Court:
Higher Regional Court Köln
Case number:
1 ORs 52/24
Party names:
Confidential
Payment to pass through the security check queue more quickly does not constitute bribery of the "line manager". Guiding passengers to the checkpoints before the actual security area does not constitute a sovereign task, as the provisions of the Aviation Security Act and the Federal Police Act clearly separate the area of responsibility of the private airport operator from the sovereign security area. Accordingly, establishing an “airport fast lane” is not a case of “acceleration corruption”.
ITALY
Legal topic:
Extraordinary circumstance - New aircraft hidden defect.
Date:
13.06.2024
Court:
European Court of Justice
Case number:
C‐385/23
Party names:
Matkustaja vs Finnair Oyj
The Court held that the occurrence of an unforeseen and unprecedented technical failure affecting a new model of aircraft, recently put into service, that causes the air carrier to cancel a flight, falls within the concept of extraordinary circumstances if the aircraft manufacturer acknowledges, subsequent to such cancellation, that the failure was caused by a hidden design defect in all aircraft of the same type that could put the flight at risk.
In this case, the Court held that, since it was a hidden technical defect, the carrier had no means of control to remedy it, and therefore it was an event that the air carrier had no ability to master.
Legal topic:
Extraordinary circumstance - Shortage of baggage staff.
Date:
22.06.2024
Court:
European Court of Justice
Case number:
C‐405/23
Party names:
Touristic Aviation Services Ltd vs Flightright GmbH
The Court ruled that a shortage of airport baggage loading staff, which caused a significant flight delay, may constitute an extraordinary circumstance.
However, it is up to the national court to assess whether deficiencies in baggage loading operations should be considered as "general deficiencies" (see CJEU C-308/21), as well as to
determine whether the circumstance is "external" to the carrier (this would be ruled out if the carrier had effective control over the airport operator).
In order to be exonerated from its obligation to pay compensation, the air carrier is required to show that the circumstance could not have been avoided in any case, even if all appropriate measures had been taken, and that it implemented measures appropriate to the situation to eliminate any consequences.
The carrier would not have taken appropriate measures if, for example, "it was possible for it to use the services of another service provider who had sufficient capacity to provide those services without delay, at the time when that air carrier knew, or ought to have known, that the airport operator did not have that capacity".
Legal topic:
Extraordinary circumstance - Italian ATC
Strike.
Date:
17.04.2024
Court:
Court of Venezia
Case number:
1038/2023
Party names:
EasyJet Airline Company Limited vs AirHelp Ltd
On Appeal, the Court of Venezia ruled that the strike, called by third parties (a circumstance not disputed by the respondent), may well integrate (as indeed in the case at hand), by settled
case law (already referred to above), an exceptional circumstance and hence the carrier's exemption from paying monetary compensation.
The appealed party also disputed the existence of the causal link between the alleged strike and the cancellation of the flight, believing that the documents produced by the appellant
lacked "the element of certainty, objectivity and specificity with respect to the facts of the case."
This grievance does not deserve to be upheld.
First of all, the relevant evidentiary standard in civil law is that of "preponderance of the evidence" (or "more likely than not"). Secondly, evidence of the disputed fact may well be given by presumptions.
In the present case, it is possible to argue that, in the presence of a strike, the cancellation of the flight in question, which was not among those included in the guarantee band, was more likely due to the strike event than to any other or undisputed cause.
Legal topic:
Extraordinary circumstance - Italian ATC
Strike.
Date:
12.06.2024
Court:
Justice of the Peace of Milan
Case number:
4247/2024
Party names:
L.A. vs Deutsche Lufthansa
Aktiengesellschaft
The J.o.P. ruled that the fact that the right to strike is subject to proclamation with prior notice (ex lege) does not preclude both the fact that the workers may adhere on the day of the strike
(and thus without any notice) or that there is no possibility (de facto or even legal) of asking them in advance if they intend to adhere, nor of substituting them on the day of the strike.
Legal topic:
Extraordinary circumstance - Weather.
Date:
14.05.2024
Court:
Court of Bari
Case number:
15201/2019
Party names:
Ryanair DAC vs C.D.
On Appeal, the Court of Bari ruled that the argument put forward by the first Judge in support of the exclusion of the exceptional and unforeseeable nature of the adverse weather conditions and based on the consideration that the fog over the airport of departure could have been foreseen thus allowing passengers to be informed about the flight change and to schedule another flight well in advance, does not appear to be correct. Indeed, contrary to the first Judge’s argument, it must be noted how weather conditions are a mere prediction and should not be taken as certain. Obviously, with modern technologies and systems for monitoring the climate and weather conditions, certain weather events can be predicted, but this predictability cannot occur sufficiently in advance so that flights can be rearranged.
Above all, there is still no absolute certainty. Moreover, the fact that, about an hour later, the weather conditions had changed favourably allowing the take-off of subsequent aircraft is irrelevant, given that the time to be taken into consideration is the time of the flight in question’s take-off.
LITHUANIA
Legal topic:
Flight cancellation due to meteorological conditions: the relevance of the fact that other airlines operated analogous flights in the assessment of the existence of extraordinary circumstances.
Date:
23.05.2024
Court:
Kaunas Regional Court
Case number:
e2A-632-950/2024
Party names:
A. G., D. G. vs. UAB “Coral Travel Lithuania”; third party in the proceedings: Lithuanian transport safety
administration.
In this case, both the First Instance Court and the Court of Appeal dismissed the applicants' claim for EU261 compensation on the basis that the flight in question was cancelled due to extraordinary circumstances, namely poor meteorological conditions, which prevented the aircraft from landing safely at the airport.
The Court noted that the aircraft runway visual range (RVR) in feet varies from aircraft to aircraft according to the aircraft category (A, B, C, D), and therefore, the circumstance indicated by the plaintiffs, i.e. that the analyzed weather conditions cannot be considered as extraordinary circumstances because other airlines were operating flights on the same route that day (they did not cancel them), would have factual and legal significance only if said other airlines had been operating flights with the same type of aircraft (of the same model and category) as that of the air carrier used by the defendant and no such data was presented in the case under consideration.
