Airline delays - Technical delay defence

Posted by Daniel Scognamiglio on

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The latest case from Europe seems to confirm the law as we understood it in the event of a delay and further limit the 'extraordinary circumstance' defence for an airline.

The latest Judgement confirms that Courts need to interpret earlier European decisions on the law strictly. A technical problem that could not be found during routine maintenance is not a good defence for the airline, as it would not be an 'extraordinary circumstance'. Aircraft will always have technical difficulties; the Court needs to decide the point at which the technical difficulties become 'extraordinary' and outside the normal course for the airline.


It is probably easiest to start with the law as we understand it at the moment in accordance with the denied boarding regulations, with the snappy official title of 261/2004.

Where a flight is cancelled or delayed by more than three hours:

Article 7 of Regulation No 261/2004, headed ‘Right to compensation’, provides:

… passengers shall receive compensation amounting to:

  • EUR 250 for all flights of 1 500 kilometres or less;
  • EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;
  • EUR 600 for all flights not falling under (a) or (b).

The Court then goes on to consider the Defence of the airline, based on Article 5(3) with the airline arguing that the defect with the plane was not just a technical fault, but an 'Extraordinary Circumstance' and thereby the passengers would not be entitled to recover damages.

The Court both in England and in the EU has previously shown itself to be keen to make it clear that aircraft are complex pieces of technology and technical faults would be normal and not 'extraordinary'.

The Case

In this case the flight from Quito (it's in Ecuador) to Amsterdam way back in August 2009 was delayed by 29 hours as when on the ground, one of the engines developed a fault and did not start due to a lack of fuel feed. The technical details are in the Judgement, but safe to say that the defect required an examination to be carried out by the manufacturer. The passenger sought €600 for the delay and KLM argued that this was an 'extraordinary circumstance' which could not have been avoided even if all reasonable measures had been taken. The passenger responded by saying that this was a technical problem, therefore the airline had no defence to the claim and it was therefore not an 'extraordinary circumstance'.

The Judgement

It is worth having a look at some of the passages from the judgement that succinctly lay out the law:

'Since the functioning of aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course in the exercise of their activity with such problems. In that connection, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3)'

'certain technical problems may constitute extraordinary circumstances. That would be the case in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism'

'…first it is true that a breakdown, such as that at issue in the main proceedings, caused by the premature malfunction of certain components of an aircraft, constitutes an unexpected event. Nevertheless, such a breakdown remains intrinsically linked to the very complex operating system of the aircraft, which is operated by the air carrier in conditions, particularly meteorological conditions, which are often difficult or even extreme, it being understood moreover that no component of an aircraft lasts forever.

'Therefore, it must be held that, in the course of the activities of an air carrier, that unexpected event is inherent in the normal exercise of an air carrier’s activity, as air carriers are confronted as a matter of course with unexpected technical problems.

'Second, the prevention of such a breakdown or the repairs occasioned by it, including the replacement of a prematurely defective component, is not beyond the actual control of that carrier, since the latter is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business.

'Therefore, a technical problem, such as that at issue in the main proceedings, cannot fall within the definition of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.

…a technical problem, … which occurred unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ within the meaning of that provision.


Previously there was some weight to an argument that a fault that could not be detected by the airline could not result in the airline having to pay compensation. That does not now seem to be the case and the earlier judgement of Wallentin-Hermann (C-549/07, EU:C:2008:771)appears to have been extended. It is going to be a very difficult challenge for an airline to argue that any technical fault is an 'extraordinary circumstance'.

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About the Author

Daniel leads our travel team. He is a specialist in multi-jurisdictional disputes, travel insurance litigation and tour operator liability and is qualified as a solicitor in England and Attorney at Law (non-practising) New York.

Daniel Scognamiglio
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