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Aviation

Air carrier acquitted: 36-minute turnaround time was sufficient

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Legal news
calendar 27 February 2020
globus Denmark

According to the EC Regulation 261 / 2004, ATC-restrictions fall within the concept of extraordinary circumstances. This has also been established in case-law. In order to be released of its obligation to pay compensation for the delay or cancellation of a flight, the air carrier must lift a heavy burden of proof. The air carrier must prove that the ATC-restrictions were the cause of the delay or cancellation. However, in a recent proceeding before Göteborgs Tingrätt, IUNO’s Swedish legal team succeeded in lifting the burden of proof and getting the air carrier released of its obligation to pay compensation.

The case concerned a passenger who was delayed by more than three hours on his flight from Gothenburg to Rabat via Paris. The delay appeared because the flight from Gothenburg to Paris arrived at its destination later than scheduled, so the passenger missed his connecting flight to Rabat and had to be rebooked to the following flight. Therefore, the passenger claimed compensation for the delay. The air carrier rejected the claim on the ground that the delay was caused by extraordinary circumstances constituted by ATC-restrictions, which had been imposed on the aircraft in question on its earlier flights the same day.

The matter was presented before Göteborgs Tingrätt (the District Court of Gothenburg), which had to decide whether the ATC-restrictions constituted extraordinary circumstances that could exempt the air carrier from its obligation to pay compensation to the passenger for the delayed flight.

The delay was outside the air carrier’s control

In its judgement, Göteborgs Tingrätt referred to recital 15 in the preamble to Regulation 261. The recital states that extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to for example a long delay or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.

It is the air carrier which must prove that the delay in question was caused by extraordinary circumstances. The Court stated that it appeared from the flightlog presented by the air carrier that the flight in question had been delayed on its earlier flight, first due to ATC-restrictions as a result of bad weather, and later due to the conditions at the airport runway. From the flightlog it also appeared that the delay on the flight from Gothenburg to Paris occurred since the flight had been delayed by an earlier arrival.

ATC-restrictions, which are imposed on a flight, are outside the air carrier’s effective control. All the mentioned reasons for delay were a consequence of air traffic management decisions and not the air carrier’s decisions. The Court considered that the air carrier, by means of the information in the flightlog, had proven that extraordinary circumstances occurred in the form of ATC-restrictions imposed on the flight in question on the day of the delay, which caused long delays on the following flights performed by the aircraft.

No impact on weather or ATC-restrictions

Furthermore, Göteborgs Tingrätt stated that the air carrier had taken all reasonable measures to avoid the extraordinary circumstances. Since the air carrier does not have any impact on either bad weather or air traffic management decisions, it was very limited what measures could be taken. According to CJEU case-law the air carrier, at the stage of organizing the flight, must take account of the risk of delay connected to the possible occurrence of extraordinary circumstances. Therefore, the air carrier must provide for a certain time reserve to avoid that all extraordinary circumstances lead to long delays and cancellations of flights.

36 minutes was OK and there is no general minimum time reserve

Göteborgs Tingrätt emphasized that there is no general minimum time reserve. Furthermore, the Court stated that a 36-minute turnaround time could not be considered too tight for a flight within Europe and that it could not be required that the air carrier should have taken account of the risk of delay on all flights to or from Paris when it organized its flights. Moreover, the air carrier had rebooked the passenger on the following flight from Paris to Rabat.

Based on this, the Court found it proven that the delayed flight was caused by extraordinary circumstances which could not have been avoided if all reasonable measures had been taken. Therefore, the air carrier was exempted from its obligation to pay compensation to the passenger for the delayed flight.

IUNO’s opinion

The judgement is important since the Court specifically examines the way the air carrier had planned its rotations. In the judgement, the Court directly states that a 36-minute turnaround time from arrival to next departure cannot be considered irresponsibly short on a flight within Europe. The Court, thereby, particularly addresses the air carrier’s route planning.

Since the Court also states that the air carrier could not have been expected to take all potential delays on other flights into account, the judgement reflects that the air carrier is relatively unrestricted in relation to organizing its flights. The judgement corresponds well with the considerations behind Regulation 261 / 2004. In the end, one must remember that most flights are executed according to the schedule, and that a short turnaround time, therefore, also generally benefits the passengers, who thereby avoid unnecessarily long waiting periods in the transit airport.

The case concerned a passenger who was delayed by more than three hours on his flight from Gothenburg to Rabat via Paris. The delay appeared because the flight from Gothenburg to Paris arrived at its destination later than scheduled, so the passenger missed his connecting flight to Rabat and had to be rebooked to the following flight. Therefore, the passenger claimed compensation for the delay. The air carrier rejected the claim on the ground that the delay was caused by extraordinary circumstances constituted by ATC-restrictions, which had been imposed on the aircraft in question on its earlier flights the same day.

The matter was presented before Göteborgs Tingrätt (the District Court of Gothenburg), which had to decide whether the ATC-restrictions constituted extraordinary circumstances that could exempt the air carrier from its obligation to pay compensation to the passenger for the delayed flight.

The delay was outside the air carrier’s control

In its judgement, Göteborgs Tingrätt referred to recital 15 in the preamble to Regulation 261. The recital states that extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to for example a long delay or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.

It is the air carrier which must prove that the delay in question was caused by extraordinary circumstances. The Court stated that it appeared from the flightlog presented by the air carrier that the flight in question had been delayed on its earlier flight, first due to ATC-restrictions as a result of bad weather, and later due to the conditions at the airport runway. From the flightlog it also appeared that the delay on the flight from Gothenburg to Paris occurred since the flight had been delayed by an earlier arrival.

ATC-restrictions, which are imposed on a flight, are outside the air carrier’s effective control. All the mentioned reasons for delay were a consequence of air traffic management decisions and not the air carrier’s decisions. The Court considered that the air carrier, by means of the information in the flightlog, had proven that extraordinary circumstances occurred in the form of ATC-restrictions imposed on the flight in question on the day of the delay, which caused long delays on the following flights performed by the aircraft.

No impact on weather or ATC-restrictions

Furthermore, Göteborgs Tingrätt stated that the air carrier had taken all reasonable measures to avoid the extraordinary circumstances. Since the air carrier does not have any impact on either bad weather or air traffic management decisions, it was very limited what measures could be taken. According to CJEU case-law the air carrier, at the stage of organizing the flight, must take account of the risk of delay connected to the possible occurrence of extraordinary circumstances. Therefore, the air carrier must provide for a certain time reserve to avoid that all extraordinary circumstances lead to long delays and cancellations of flights.

36 minutes was OK and there is no general minimum time reserve

Göteborgs Tingrätt emphasized that there is no general minimum time reserve. Furthermore, the Court stated that a 36-minute turnaround time could not be considered too tight for a flight within Europe and that it could not be required that the air carrier should have taken account of the risk of delay on all flights to or from Paris when it organized its flights. Moreover, the air carrier had rebooked the passenger on the following flight from Paris to Rabat.

Based on this, the Court found it proven that the delayed flight was caused by extraordinary circumstances which could not have been avoided if all reasonable measures had been taken. Therefore, the air carrier was exempted from its obligation to pay compensation to the passenger for the delayed flight.

IUNO’s opinion

The judgement is important since the Court specifically examines the way the air carrier had planned its rotations. In the judgement, the Court directly states that a 36-minute turnaround time from arrival to next departure cannot be considered irresponsibly short on a flight within Europe. The Court, thereby, particularly addresses the air carrier’s route planning.

Since the Court also states that the air carrier could not have been expected to take all potential delays on other flights into account, the judgement reflects that the air carrier is relatively unrestricted in relation to organizing its flights. The judgement corresponds well with the considerations behind Regulation 261 / 2004. In the end, one must remember that most flights are executed according to the schedule, and that a short turnaround time, therefore, also generally benefits the passengers, who thereby avoid unnecessarily long waiting periods in the transit airport.

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Krogh

Partner

Jacob

Larsø Perregaard

Senior associate

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