Welcome to our newsletter on European Aviation Law

In this first newsletter, we will update you on the latest legal development in Denmark concerning compensation claims under EU Regulation 261 / 2004 and answer the question of what airlines should do while waiting for the Danish Supreme Court.

Delays due to technical defects – the short version

According to Regulation 261, airline passengers are entitled to compensation if an airplane is delayed for more than three hours, unless the delay is caused by extraordinary circumstances (EOC). Many airlines receive claims regarding delays caused by technical errors, but it is not always clear whether and to what extent technical errors can qualify as EOCs, and thereby relieve the airline from the obligation to pay compensation.

The so-called Wallentin-Hermann judgment from the Court of Justice of the European Union (CJEU) indicates that if a technical error is within the control sphere of the airline, the airline will not be relieved. But in the same judgment, the CJEU recognizes that some technical defects may be characterized as an EOC. However, the judgment does not clearly specify which technical defects may qualify as EOCs, and neither are the boundaries of the control sphere of the airline determined. And to make matters worse, the decision is interpreted differently by courts and national public authorities in various EU member states. This also applies to Denmark, and the legal situation is currently under rapid development.

Denmark: Status regarding the four Primera Air-cases

Recently, the Danish Eastern High Court decided four cases regarding compensation for delay and found in the passengers’ favour in all four cases. The airline applied for permission to appeal the decisions to the Danish Supreme Court, and such permission was granted. Thus, the cases were officially appealed on 25 February 2015.

While we are waiting for the Supreme Court judges to dress up in their brightly coloured robes and hand down their judgment, one question remains unanswered: How should the airlines handle new and pending claims for compensation?

In short, the answer depends on the reason of the delay.

Should new claims cases be stayed?

The District Court of Copenhagen has given a court order stating that a number of pending court cases are to be stayed, until the Supreme Court has spoken. However, the District Court has also indicated that not all cases on Regulation 261-Compensation will be stayed.

In practice, this means that cases concerning problems with cabin pressure, the fuel system and the PSEU-system should be stayed. This probably also applies to cases concerning technical errors of a similar nature, and it might even apply to other kinds of technical errors. Cases concerning damages to a plane due to collision with vehicles or other objects in the airport should probably also be stayed.

However, the court order of the District Court to stay the cases has been appealed to the Eastern High Court, which may revert or confirm the order or even reject the appeal. We expect a decision within a few months.

For now, we suggest that airlines carefully consider whether to accept claims and to pay compensation to passengers who have been delayed due to technical errors or damage on airplane caused by a collision with vehicles or objects in the airport. When airlines are met with such claims the passengers should – in our view – be informed that the processing of the claim will be stayed while awaiting the decision and the inherent guidelines of the courts.

We will keep you posted of the further development.