Newsletter November 2013: Newsletter FLO – Aviation

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba


( a summary of jurisprudence )

When a flight is cancelled, the operating air carrier has the obligation to help, assist and compensate its passengers.
The obligation to help consists of care and, if necessary, additional care which includes a set of standardised and immediate remedial measures to mitigate the difficulties and inconveniences suffered by its passengers. The obligation to assist consists of re-routing its passengers to their final destination, unless they opt for a refund of their tickets.
If the operating air carrier proves that ” the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”, the operating air carrier will be released only from its obligation to compensate its passengers. The obligation to help and assist will, however, continue to exist. Care for passengers “is supposed to be full care” , i.e. both care and additional care, without any time or financial limit.

In order to escape its obligation to compensate its passengers, the operating air carrier should and only needs to prove:
1. the circumstances causing the cancellation of the flight, in other words the operating air carrier must prove the circumstances and the causal link between them and the cancellation;
2. that they result from events which are not inherent to the normal performance of the activity of the air carrier concerned and which are beyond its actual control by virtue of its nature or origin to establish the extraordinary character of these circumstances;
3. that in such extraordinary circumstances, “although the operating air carrier has deployed all available human, material and financial resources, it could clearly not avoid these extraordinary circumstances it is confronted with causing the cancellation of the flight in order to establish that all reasonable measures had been taken, unless the operating air carrier accepts unsupportable sacrifices as to the capacities of its company at the relevant time” in other words that the operating air carrier must provide proof that it was unable to find an alternative economically bearable solution within its company or that no such solution has been suggested.

It should be noticed that :
• the alternative solution to be found by the air carrier to avoid the cancellation of a flight faces the obligation to reroute its passengers to their final destination under comparable transportation conditions;
• “technical problems revealed during the servicing of aircraft or due to the fact that there was no servicing will as such not be regarded as extraordinary circumstances”;
• it is “the extraordinary circumstances that determine precisely which measures are reasonable”, in order words the reasonableness of the measures must be assessed against such circumstances;
• when Regulation No. 261/2004 specifies in its recitals that “such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier” it makes a non- exhaustive enumeration of hypotheses agreed upon by the European Parliament and the European Union Council which may give rise to “extraordinary” circumstances; consequently, it does not result at all from the fourteenth recital of Regulation No. 261/2004 that “the cancellations of flights caused in particular by a political instability, bad meteorological conditions, strikes, are also a reason to exempt the air carrier from responsibility. No one is above making such error of law as is shown both by the opinion filed on 27 September 2007 by the advocate general at the Court of Justice of the European Union in the matter of Kramme v. S.A.S. Scandinavia Airlines, which erroneously considers the aforesaid fourteenth recital as examples of “extraordinary circumstances”, and by the Commission itself in its Communication to the European Parliament and the Council dated 4 April 4, 2004 stating that recital 14 of Regulation No. 261/2004 quotes five examples of extraordinary circumstances: political instability, meteorological conditions incompatible with the operation of the flight, security risks, unexpected flight safety shortcomings and strikes;
• it is also incorrect to claim that such compensation will not be paid in extraordinary circumstances such as political instability, meteorological conditions, unexpected flight safety shortcomings or strikes; after all, these enumerated circumstances themselves are by no means circumstances qualified as extraordinary; and if so, it still has to be examined whether all reasonable steps have been taken by the air carrier or whether the air carrier was unable to take them;
• the Commission itself is aware “that nevertheless doubts continue to exist regarding the abuse by airline companies of provisions relating to extraordinary circumstances, whereby air carriers thus escape the payment of compensations” and “that it is difficult to establish whether a flight has been delayed or cancelled because the criteria for the classification of deadlines and delays may vary depending on the airline companies, which affects the payment of financial compensations”;
• within the framework of the passenger’s right to compensation, the intentions expressed by the European legislator, on the one hand, and the contents of the Regulation, on the other hand, show some ambiguity, or even a certain inconsistency; after all, according to the twelfth recital of Regulation No. 261/2004 “The trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this, except when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”; consequently, except in extraordinary circumstances, air carriers should compensate passengers in case of flight cancellation if they fail to inform them before the time of departure so that they can make other arrangements and to offer them a rerouting; passengers can claim compensation if they have not been informed of the cancellation within the time limits laid down by the Regulation, even if they have been rerouted to their final destination;
• Regulation No. 261/2004 consecrates the concept of “extraordinary circumstances” and not strange circumstances to those invoking them, abnormal and unforeseeable, whose consequences could not have been avoided despite all the diligence deployed, defining the concept of “force majeure” both in Directive 90/314/EEC on package travel, package holidays and package tours, and in the settled case law of the Court of Justice of the European Union. It is in the context of the comments on the common position adopted by the Council on 18 March 2003, that the reason is to be found for which the concept of “extraordinary circumstances” was preferred to that of force majeure: “in accordance with the Parliament’s amendment and in light of the Montreal Convention, the Commission considered that it should draw up a list of the circumstances in which air carriers may be exempted from their obligations under this regulation.”. However, for reasons of legal clarity, the Council has decided not to enumerate such circumstances in the context of force majeure but to have recourse to the concept of “extraordinary circumstances”; it is not up to the judiciary of each of the EU States to say de jure whether the concept of “extraordinary circumstances” covers the concept of “force majeure”, but to the Court of Justice of the European Union only; after all, the latter benefits from the monopoly of the interpretation of Community law.
• under European tourism law, organisers and/or retailers are required to diligently assist consumers in difficulty; the contents of this obligation can be defined by referring to the assistance and care obligations resting on air carriers pursuant to Regulation No. 261/2004 when such difficulties arise during the performance of a package;
• if an operating carrier does not comply with its obligation to care for its passengers, the latter will be entitled to claim the reimbursement of the amounts the carrier should have borne and which are regarded as “necessary, appropriate and reasonable”;
• the additional compensation allows a national judge to order an air carrier “to compensate its passengers for the harm resulting from the non-performance of an air transport contract on the basis of a legal ground which differs from Regulation No. 261/2004, in other words, in particular, under the conditions laid down in the Montreal Convention or national law”; that is the way a passenger can be compensated for the harm, the entire harm, and nothing but the harm suffered by him.


For further information and comment, please contact Arthur Flieger at, Website:, telephone: +32 3 238 77 66


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