EN
Aviation

No 261-compensation for a 16-hour delay

logo
Legal news
calendar 4 February 2021
globus Denmark, Sweden, Norway

The air carrier bears the burden of proof when a passenger makes a claim for compensation in accordance with regulation 261, and the burden of proof may be difficult to lift. In a case before the District Court of Kolding, the air carrier presented both internal and external documentation and therefore they did not have to pay compensation even though it was a 16-hour delay.

In this specific case, two passengers had booked a trip from Beograd to Billund via Frankfurt. The plane arrived with a delay in Frankfurt due to a delay on its previous flight. The delay meant that the passengers did not catch their following flight to Billund and had to be rebooked to another flight to Billund via Copenhagen. Therefore, they arrived in Billund with a 16-hour delay and, due to this, the passengers made a claim for compensation in accordance with regulation 261. The air carrier denied their claim, as the delay was a result of extraordinary circumstances.

Internal appendices and printout from flightstats were sufficient

The air carrier used their internal logs to prove that the flights to and from Frankfurt were delayed due to a delay in the previous flight as well as weather conditions and ATC-restrictions. Due to an external printout from flightstats.com the air carrier was also able to prove that there were many delays in Frankfurt that day. Of the 299 flights, only 12 flights were not delayed or cancelled.

In their verdict, the District Court of Kolding emphasized that two conditions must be met if an air carrier is to be exempt from their duty to pay compensation. Firstly, the cancellation or delay must be a result of extraordinary circumstances. Secondly, the air carrier must prove that the extraordinary circumstances would have caused a delay even if all reasonable precautions had been taken. The court specified that unusual weather conditions, according to preambulatory clause 14 in regulation 261, may constitute extraordinary circumstances.

Based on the air carrier’s documentation, which showed a significant amount of cancelled and delayed flights due to the weather conditions and ATC-restrictions, it was found that this was a case of extraordinary circumstances. Compared to the second condition, the court concluded that the extraordinary circumstances were beyond the control of the air carrier, and that the delay therefore could not have been avoided, no matter the precautions the air carrier might have taken.

The air carrier does not control its own departures

In the assessment, the court also emphasized that the air carrier cannot handle and control its own departures from Frankfurt – this is the Air Traffic Control’s responsibility. Furthermore, the court also emphasized that the unusual weather conditions affected almost all departures from Frankfurt that day. By rebooking the passengers to another flight via Copenhagen, the air carrier took all necessary and possible precautions. On that basis, the court concluded that the passengers did not have a right to receive compensation from the air carrier for the delayed flight.

IUNO’s opinion

16 hours is quite a long delay on an inter-European flight. Nevertheless, the air carrier was acquitted. This is because the court put emphasis on the fact that most of the other flights from Frankfurt were also delayed, and that there was an ATC-restriction. The combination of the two conditions (weather and ATC restrictions) was beyond the air carrier’s control. The air carrier’s proof that the other flights were affected by the conditions became essential. Furthermore, the court did not make specific requirements regarding the rebooking. IUNO recommends, in light of the judgement, that air carriers in a similar situation ensure both internal and external documentation to lift the burden of proof, to the extent possible

[District Court of Kolding in case BS-499/2019-KOL of the 2 December 2019]

In this specific case, two passengers had booked a trip from Beograd to Billund via Frankfurt. The plane arrived with a delay in Frankfurt due to a delay on its previous flight. The delay meant that the passengers did not catch their following flight to Billund and had to be rebooked to another flight to Billund via Copenhagen. Therefore, they arrived in Billund with a 16-hour delay and, due to this, the passengers made a claim for compensation in accordance with regulation 261. The air carrier denied their claim, as the delay was a result of extraordinary circumstances.

Internal appendices and printout from flightstats were sufficient

The air carrier used their internal logs to prove that the flights to and from Frankfurt were delayed due to a delay in the previous flight as well as weather conditions and ATC-restrictions. Due to an external printout from flightstats.com the air carrier was also able to prove that there were many delays in Frankfurt that day. Of the 299 flights, only 12 flights were not delayed or cancelled.

In their verdict, the District Court of Kolding emphasized that two conditions must be met if an air carrier is to be exempt from their duty to pay compensation. Firstly, the cancellation or delay must be a result of extraordinary circumstances. Secondly, the air carrier must prove that the extraordinary circumstances would have caused a delay even if all reasonable precautions had been taken. The court specified that unusual weather conditions, according to preambulatory clause 14 in regulation 261, may constitute extraordinary circumstances.

Based on the air carrier’s documentation, which showed a significant amount of cancelled and delayed flights due to the weather conditions and ATC-restrictions, it was found that this was a case of extraordinary circumstances. Compared to the second condition, the court concluded that the extraordinary circumstances were beyond the control of the air carrier, and that the delay therefore could not have been avoided, no matter the precautions the air carrier might have taken.

The air carrier does not control its own departures

In the assessment, the court also emphasized that the air carrier cannot handle and control its own departures from Frankfurt – this is the Air Traffic Control’s responsibility. Furthermore, the court also emphasized that the unusual weather conditions affected almost all departures from Frankfurt that day. By rebooking the passengers to another flight via Copenhagen, the air carrier took all necessary and possible precautions. On that basis, the court concluded that the passengers did not have a right to receive compensation from the air carrier for the delayed flight.

IUNO’s opinion

16 hours is quite a long delay on an inter-European flight. Nevertheless, the air carrier was acquitted. This is because the court put emphasis on the fact that most of the other flights from Frankfurt were also delayed, and that there was an ATC-restriction. The combination of the two conditions (weather and ATC restrictions) was beyond the air carrier’s control. The air carrier’s proof that the other flights were affected by the conditions became essential. Furthermore, the court did not make specific requirements regarding the rebooking. IUNO recommends, in light of the judgement, that air carriers in a similar situation ensure both internal and external documentation to lift the burden of proof, to the extent possible

[District Court of Kolding in case BS-499/2019-KOL of the 2 December 2019]

Receive our newsletter

Aage

Krogh

Partner

Selma

Agopian

EU Lawyer

Similar

logo
Aviation

25 August 2021

logo
Aviation

15 April 2021

logo
Aviation

5 April 2021

logo
Aviation

15 March 2021

logo
Aviation

5 March 2021

logo
Aviation

23 February 2021

The team

Aage

Krogh

Partner

Anne

Poulsen

Legal assistant

Bror

Johan Kristensen

Junior legal assistant

Carl-Emil

Schumann Dinesen

Junior legal assistant

Caroline

Bruun Ibsen

Senior legal assistant

Cecilie

Marie Hoff Schmidt

Senior legal assistant

Chris

Anders Nielsen

Senior legal assistant

Christian

Hulegaard Kjær Sørensen

Senior legal assistant

Clara

Andersen Øfeldt

Senior legal assistant

Ellen

Thorn Ekstrøm

Senior legal assistant

Elsa

Kalén

Legal assistant

Emma

Frøslev Larsen

Junior legal assistant

Emma

Zisko Norman Svendsen

Senior legal assistant

Fanny

Hansson

Junior legal assistant

Ingrid

Nordgård Kvaal

Legal assistant

Julie

Aagaard Thomsen

Senior legal assistant

Joachim

Sieverts Nielsen

Senior legal assistant

Kathinka

Buchter

Legal assistant

Kathrine

Münter

Legal assistant

Kathrine

Wohlers Sørensen

Junior legal assistant

Kirstine

Damkjær Nielsen

Senior legal assistant

Laura

Jørgensen

Senior legal assistant

Line

Ponton Nemeth

Junior legal assistant

Maya

Cecillia Jørgensen

Legal assistant

Sandra

Miriam Westall Dovalo

Legal assistant

Sara

Helenius

Senior legal assistant

Selma

Agopian

EU Lawyer

Siri

Agnete Bennekou

Junior legal assistant

Sophia

Maria Dahl-Jensen

Senior legal assistant

Sophie

Toftegaard

Senior legal assistant