Cancelled flights and the Exceptional Circumstances defence
Where a flight is cancelled, the airline must pay compensation
and provide other assistance as required by Regulation 261/2004
unless it has a legal defence to the claim.
Under the regulations there is no defence to a claim for a
refund or for subsistence expenses, and there is only one defence
to a claim for financial compensation.
Under Article 5.3 of the Regulation, and airline is not required
to pay financial compensation to a passenger for cancellation where
the cancellation "is caused by extraordinary circumstances which
could not have been avoided even if all reasonable measures had
been taken."
Unfortunately there is no definition in the Regulation as to
what are to be considered "extraordinary circumstances". However,
there is a reference to this in the narrative preamble to the
regulation (which does not form part of the law and is not legally
binding) which suggests that when passing the legislation, the
European Parliament considered extraordinary circumstances to be
things like:
- Extreme adverse weather conditions
- Unanticipated strike action
- Security risks and the threat of terrorism
- Political instability, riot and civil war
However, many airlines began to use extraordinary circumstances
as an excuse for refusing to consider claims for compensation in
virtually every case. Often the airline would state that the flight
was cancelled due to a technical fault, and that this was an
extraordinary circumstance within the meaning of the regulation.
This practice continued until 2008 when the European Court of
Justice was asked to deliver a ruling on the precise meaning of
"extraordinary circumstances". The Court made it clear that
wherever an airline raised the defence of "extraordinary
circumstances" it was the responsibility of the airline to prove
this defence. The Court also stated that technical failures or
maintenance issues could not be considered "extraordinary
circumstances" unless they were caused by events completely beyond
the airline's control, such as freak accidents.