Technical faults - General comment - Regulations for
Passenger Transport Complaints Board § 5-6, 3rd section.
The Air Passenger Complaints Handling Body has not found grounds at the present time to
make any change in its practice when evaluating cases concerning technical faults and the
right to compensation in accordance with EU decree 261/2004 regulations.
The Handling Body chooses to maintain, with one vote against, the following understanding:
The airline company must basically bear the responsibility for technical failure.
A technical failure can, however, arise so unexpectedly that the airline company has
no real possibility of preventing the fault or of avoiding the consequences which follow
without it affecting the passengers. In such a case the airline is not obligated to pay
compensation to the person making the trip. It is the airline company which must
prove that there has been such a special circumstance. Furthermore, the airline must
document that it has taken every reasonable measure to avoid the cancellation.
The Air Passenger Complaints Handling Body remarks:
There is some disagreement about to what degree a technical fault can be considered to be
an extraordinary circumstance which, depending on the circumstances, can exempt the
airline company from paying standard compensation in accordance with EU decree
261/2004. In some countries, now, there is a different interpretation of the legal rulings
compared to what has been the regular practice from the Air Passenger Complaints Handling
Bodies (National Enforcement Bodies – NEB) in Europe. The European Union Tribunal is at
present evaluating a question from a Dutch court about the interpretation of “extraordinary
circumstances” and technical faults. In addition, work is being done to revise the EU decree
261/2004 regulations. The Air Passenger Complaints Handling Body has discussed how it
should respond to this matter in connection with disputes involving technical faults and which
are affected by this question. The Handling Body feels therefore that it is appropriate to make
a general comment about this matter, seeing this issue arises repeatedly in the cases it
evaluates.
***
Cancellations and delays which result in passengers arriving at their final destination three or
more hours after the planned time of arrival, give the right to claim compensation, unless the
airline can show that the delay was the result of extraordinary circumstances, which could
not have been avoided, in spite of all reasonable measures having been taken. The
Handling Body refers to EU regulation 261/2004, cf. article 6, article 7, article 5, and cf. EU
Tribunal decisions in the cases of “Sturgeon v Condor” from November 19th 2009 and of
Nelson and others, 23rd October 2012.
It is not uncommon that a flight has to be cancelled or is delayed as a result of a technical
fault with the aircraft. There is some disagreement about to what extent a technical fault can
be regarded as an extraordinary circumstance which, depending on the circumstances, may
lead to the airline being relieved of its liability to pay compensation according to EU decree
regulations.
The Air Passenger Complaints Handling Body has made the following remarks in a number
of cases it has assessed:
The Handling Body feels that the airline must fundamentally bear the responsibility for
technical failure. The airline has the obvious opportunity to influence the occurrence
of technical faults, and to take measures to prevent them from occurring. Also with a
view to avoiding problems in the future, the main rule should be that the airline bears
the responsibility for technical failure.
A technical failure can, however, arise so unexpectedly that the airline cannot prevent
the fault or take measures to avoid the consequences arising from the technical
failure, without causing problems for the passengers. In such situations, the airline is
not held liable to pay compensation to its passengers. It is the airline which must
establish that the circumstance qualifies as extraordinary, and that it has done
everything possible to prevent the cancellation.
The EU decree 261/2004 regulations do not provide any definition of what can be considered
to be “an extraordinary circumstance”. However, in the introductory preamble, recital 14, the
following comment is made:
In the same manner as specified under the Montreal Convention, the airline
companies’ obligations should be limited or should cease to apply in cases where an
incident is caused by extraordinary circumstances which could not have been avoided
in spite of all reasonable measures having been taken. Such circumstances can in
particular arise in situations of political unrest, weather conditions which make it
impossible to fly, security risks, unexpected deficiencies regarding flight security, and
strikes which affect the operation of the transporting company.
The European Union Tribunal came to a verdict on 22nd December 2008, in case C-549/07
between Wallentin-Hermann and Alitalia, having assessed the question about if a technical
fault can be regarded as an extraordinary circumstance which can subsequently lead to the
airline companies being exempted from bearing the responsibility to pay compensation.
The Tribunal stipulates the following in § 21-26:
(21) In this respect, the Community legislature indicated, as stated in recital 14 in the
preamble to Regulation No 261/2004, that such circumstances may, in particular,
occur in cases of political instability, meteorological conditions incompatible with the
operation of the flight concerned, security risks, unexpected flight safety shortcomings
and strikes that affect the operation of an air carrier.
(22) It is apparent from that statement in the preamble to Regulation No 261/2004 that
the Community legislature did not mean that those events, the list of which is indeed
only indicative, themselves constitute extraordinary circumstances, but only that they
may produce such circumstances. It follows that all the circumstances surrounding
such events are not necessarily grounds of exemption from the obligation to pay
compensation provided for in Article 5(1)(c) of that regulation.
(23) Although the Community legislature included in that list ‘unexpected flight safety
shortcomings’ and although a technical problem in an aircraft may be amongst such
shortcomings, the fact remains that the circumstances surrounding such an event
can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of
Regulation No 261/2004 only if they relate to an event which, like those listed in
recital 14 in the preamble to that regulation, is not inherent in the normal exercise of
the activity of the air carrier concerned and is beyond the actual control of that carrier
on account of its nature or origin.
(24) In the light of the specific conditions in which carriage by air takes place and the
degree of technological sophistication of aircraft, it must be stated that air carriers are
confronted as a matter of course in the exercise of their activity with various technical
problems to which the operation of those aircraft inevitably gives rise. It is moreover
in order to avoid such problems and to take precautions against incidents
compromising flight safety that those aircraft are subject to regular checks which are
particularly strict, and which are part and parcel of the standard operating conditions
of air transport undertakings. The resolution of a technical problem caused by failure
to maintain an aircraft must therefore be regarded as inherent in the normal exercise
of an air carrier’s activity.
(25) Consequently, 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) of Regulation No
261/2004.
(26) However, it cannot be ruled out that technical problems are covered by those
exceptional circumstances to the extent that they stem from events which are not
inherent in the normal exercise of the activity of the air carrier concerned and are
beyond its actual control. That would be the case, for example, 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.
The EU decree 261/2004 regulations are in the process of being revised. In the draft of the
revised version dated 13th March 2013, the following comment is made in point 3.3:
The proposal aims to improve enforcement by clarifying key principles and implicit
passenger rights that have given rise to many disputes between airlines and
passengers in the past; and by enhancing and better coordinating the enforcement
policies carried out on a national level.
3.3.1.1. Clarification of key principles
Definition of "extraordinary circumstances": the proposal clearly defines the term in
line with the European Court's decision in the case C-549/07 (Wallentin-Herman), i.e.
circumstances which, by their nature or origin, are not inherent in the normal exercise
of the activity of the air carrier concerned and are beyond its actual control.
Furthermore, for further legal certainty, the proposal introduces a non-exhaustive list
of circumstances to be regarded as extraordinary and of circumstances to be
regarded as non-extraordinary.
In the draft suggested, the following definition is stated in article 1 (e) (m):
"extraordinary circumstances" means circumstances which, by their nature or origin,
are not inherent in the normal exercise of the activity of the air carrier concerned and
are beyond its actual control. For the purposes of this Regulation, extraordinary
circumstances shall include the circumstances set out in the Annex;
Annex 1 gives examples of extraordinary circumstances. The following comments are made
in Point ii:
Technical problems which are not inherent in the normal operation of the aircraft,
such as the identification of a defect during the flight operation concerned and which
prevent the normal continuation of the operation; or hidden manufacturing defect
revealed by the manufacturer or a competent authority and which impinges on flight
safety.
Annex 1 also gives examples of what should not be regarded as an extraordinary
circumstance:
Technical problems inherent in the normal operation of aircraft, such as a problem
identified during the routine maintenance or during the pre-flight check of the aircraft
or which arises due to failure to correctly carry out such maintenance or pre-flight
check.
The Air Passenger Transport Complaints Handling Bodies, in Europe, (the National
Enforcement Bodies [NEB], cf. decree article 16), under the leadership of the European
Commission, compiled a “preliminary list of extraordinary circumstances” on 12th April 2013.
The list was published on the Commission’s website. After a complaint to the Ombudsmann,
the term “preliminary” was altered on 22nd October 2013 to “Draft”. A sentence was also
added about “Understanding between NEB-NEB", specifying the following: This document
has been published at the request of the NEB's. This document is for information and
guidance. The content of this document has not been adopted or in any way approved by the
European Commission and should not be relied upon as a statement of the European
Commission’s position.
From the list of extraordinary circumstances, the following are named:
21
Unexpected flight safety shortcomings
Any technical issues which cause the pilot to carry out an aircraft turnaround or
diversion.
22
Unexpected flight safety shortcomings
Failure of the bleed-air system/environmental control system on an aircraft (which had
been properly maintained) either immediately prior to departure or in-flight.
23
Unexpected flight safety shortcomings
Premature failure of life-limited parts (as referenced in applicable maintenance data,
contained within the aircraft maintenance manual, or Maintenance Planning
Document (MPD), or Maintenance Review Board Report (MRBR)) prior to their
scheduled inspection/removal/retirement date (where those parts
had been maintained in accordance with the required maintenance programme).
24
Unexpected flight safety shortcomings
Failure of on-condition/condition monitored parts i.e. parts which should not require
unscheduled maintenance or replacement during normal operational service (for
example propeller oil-temperature gauges. The premature failure of these parts
during normal operational service when maintained in accordance with the
maintenance programme is unpredictable).
25
Unexpected flight safety shortcomings
Failure of necessary or required aircraft systems (for example the cooling system,
avionics system, flight control system, flaps, slats, rudders, thrust reverser, landing
gear) either immediately prior to departure or in-flight (where those systems had been
maintained in accordance with the required maintenance programme).
26
Unexpected flight safety shortcomings
Any other technical defects which become apparent immediately prior to departure or
in-flight (where the system or part had been maintained in accordance with the
required maintenance programme) and which require investigation and/or repair
before the aircraft is airworthy for the intended flight.
27
Unexpected flight safety shortcomings
Smoke, fire or fumes on board the aircraft unless the problem has been caused by a
part not being maintained in accordance with the required maintenance programme
or due to a failure to follow appropriate operational procedures.
On 28th May 2014, the European Union Court received an inquiry from a Dutch court about
the interpretation of extraordinary circumstances and technical faults, case C-257/14: van der
Lans – KLM. The inquiry has been accepted for assessment. The court proceedings for the
case, as of 26th January 2015, have not yet been given a scheduled date.
The Court of Appeal in Great Britain (compatible to the Norwegian magistrate’s court) came
to a verdict on 11th June 2014 in the case between Jet2 and Huzar. The court was of the
opinion that a technical fault with the aircraft cannot be considered to be an extraordinary
circumstance in the sense indicated by the EU decree. The English Supreme Court rejected
the appeal against the verdict on 30th October 2014. The following statement is made in the
comment, that:
The application does not raise a point of law of general public importance and, in
relation to the point of European Union law said to be raised by or in response to the
application, it is not necessary to request the Court of Justice to give any ruling
because the Court's existing jurisprudence already provides a sufficient answer.
Østre landsrett in Denmark (compatible to the Norwegian magistrate’s court) came to a
verdict on 6th November 2014 stating that a technical fault could not be considered to be an
extraordinary circumstance in the sense indicated by the EU decree.
The Air Passenger Complaints Handling Bodies in Great Britain and Denmark have changed
their practice after the two verdicts made in their respective countries (ie. after 11th June
2014 and 6th November 2014.)
The Swedish Air Passenger Complaints Handling Body has also changed its practice, in
keeping with the verdicts from Great Britain and Denmark.
On 24th November 2014, the Air Passenger Complaints Handling Body tried to obtain
clarification from the other NEBs in Europe about how they will respond to the new verdicts in
connection with the list above which specifies extraordinary circumstances. As far as the
Handling Body is aware, only the NEBs in Great Britain, Denmark and Sweden have
changed their practice. All the other NEBs still relate their practice to the above list.
On 9th December 2014, the European Commission sent the following e-mail to all the NEBs:
Dear NEBs,
I have carefully read your reactions to Mr Forsdahl's message of 24 November 2014.
I fully share your opinions and endorse what has already been said with regard to the
fact that the case-law delivered by national courts is not binding on Member States,
except of course the Member State concerned. Only rulings of the Court of Justice of
the European Union are binding on all Member States and the CJEU in its ruling
Case C-549/07 Friederike Wallentin-Hermann v Alitalia defined the principles for
establishing when technical problems could be considered extraordinary
circumstances. Nevertheless, these principles should be assessed on a case-by-case
basis.
Consequently, the application of Regulation 261/2004 in accordance with the caselaw delivered by the CJEU is incumbent on national enforcement bodies.
It results that, the Commission sees no justification for postponing the treatment of
passengers' claims involving technical problems and urges the NEB to continue their
work as done up to date.
Kind regards,
Jean-Louis Colson
Head of Unit
Assessment:
The EU Tribunal’s verdict in Wallentin-Hermann – Alitalia case, gives some indication about
to what extent a technical fault can be considered to be an extraordinary circumstance in
accordance with the intention of the EU decree. The Handling Body is bound to follow the
interpretation made in the verdict. The specific dispute involved a technical fault which was
discovered during scheduled maintenance. The Tribunal states clearly that a fault discovered
under such circumstances is not an extraordinary circumstance according to the intention of
the EU decree (§25).
The verdict, however, gives some general guidelines about when a technical fault can be
regarded as an extraordinary circumstance. The traditional understanding of these guidelines
has been that technical faults which arise during aircraft operation, and which the airline has
no possibility of preventing or correcting the ensuing consequences, are to be accepted as
extraordinary circumstances, according to the intention of the EU decree. The Handling Body
refers to the definition and the specifications in the draft of the revised decree and to the list
compiled by the NEBs under the leadership of the EU Commission, cf. above.
The new verdicts from England (June 2014) and Denmark (November 2014) express a
different interpretation of Wallentin-Hermann verdict. In short, these verdicts indicate the
opinion that a technical fault is an inherent part of the airlines’ normal operational exercize
and that following the Wallentin-Hermann verdict, § 26, a technical fault cannot be
considered to be an extraordinary circumstance.
The verdicts from England and Denmark are not binding for other countries. The Air
Passenger Complaints Handling Body is subsequently not bound by these verdicts. The
verdicts, however, have interpreted the Wallentin-Hermann verdict, which is a verdict the
Handling Body must abide by, and as such they are of significance to the assessments made
by the Handling Body.
In October 2014, the Handling Body chose to put complaints “on hold” in cases where the
reason for the delay or cancellation was a technical fault, having decided it would wait for
more clarification on the subject. The Handling Body assumed, in connection with this, that
the EU Tribunal would shortly be giving a verdict in the case van der Lans – KLM (as
mentioned above), as this is a decision which is expected to clarify the question. The case
has not yet, however, been scheduled for a court hearing and the Handling Body is of the
opinion that it cannot justify postponing its evaluation of cases involving technical faults.
The Handling Body has now considered whether it should keep to its current practice or
adjust its practice to be more in keeping with the new interpretation of the Wallentin-Hermann
verdict which has been chosen in England, Denmark and Sweden.
In its evaluation of this matter, the Handling Body has become divided into a majority and a
minority.
The majority of the Handling Body, consisting of all the members except for the consumer
representative Hanne Beth Takvam-Borge, is of the opinion that the Handling Body should
keep to its previous practice until the question can be resolved through the case of van der
Lans – KLM, which is due to be taken up by the EU Tribunal.
In the opinion of the majority, it is an open question as to what the EU Tribunal will finally
decide in the above-mentioned case. The Court can vindicate the understanding established
through the NEBs’ practice since December 2008 (Wallentin-Hermann), or it can agree with
the view taken in the Jet2 case (where a technical fault is not considered to be an
extraordinary circumstance) or the Court can arrive at a solution which lies somewhere
between these two interpretations.
The majority believes that it would create both uncertainty and unpredictability if the Handling
Body should change its practice now for a period, which would, in any case, be relatively
short. It would also lead to uncertainty in relation to the many cases which have been judged
by previous, unanimous practice. In addition, it would create uncertainty for those who should
have their complaints judged on the basis of a new practice, because the airline companies
will not abide by the recommendations, and also especially because it is not sure that the
new interpretation which the Handling Body could choose to follow, will coincide or be on the
same lines as those chosen by the EU Tribunal when it finally makes its verdict in the
impending van der Lans –KLM case.
The majority would, furthermore, emphasize that a large majority of the other NEBs have
chosen to keep to their former practice. The majority believes that it will be an advantage to
both the passengers and the airlines that the regulations are practiced alike in as many
countries as possible. As far as the majority is aware, there are no other NEBs which are
considering changing their practice before the matter has been clarified through the van der
Lans – KLM case.
In conclusion, the majority refers to the EU Commission’s request to ”continue their work as
done up to date”, cf. e-mail dated 9th December 2014, as referred to above. The Commission
is aware that all of the NEBs apart from three, (Denmark, Sweden and England), follow a
practice based on the traditional interpretation of Wallentin-Hermann case.
The minority of the Handling Body, the consumer representative Hanne Beth Takvam-Borge,
has a different opinion of the legal situation for those countries which are bound by EU
decree 261/2004 regulations.
The minority has based its decision in its evaluation about if a technical fault should be
considered as an extraordinary circumstance, on another interpretation of the EU decree.
The minority agrees with the majority that the Wallentin-Hermann case provides the basis on
which an evaluation of the question about what can be considered as “an extraordinary
circumstance” can be made, but it has a different understanding of how the verdict can be
interpreted. The minority will come back to this later.
Unlike the majority, the minority does not put so much weight on the importance of the draft
of a revised decree, nor on the list over extraordinary circumstances compiled by the
European air passenger complaints handling bodies or on the European NEBs practice. The
draft of a revision of the decree was written two years ago, and it has not been officially
accepted but is still under evaluation. The European air passenger complaints handling
bodies’ “preliminary list of extraordinary circumstances” has not been endorsed by the EU
Commission. NEBs comments and NEBs practice carry little or no real legal weight.
The majority has based its conclusion to maintain its former practice on the fact that the
majority of the NEBs have chosen to keep to their prior practice and it would subsequently
create uncertainty and unpredictability if the Handling Body should choose to change its
practice. The minority can understand this point of view, but believes that when the Air
Passenger Complaints Handling Body has based its decisions on the understanding that
technical faults are to be regarded as extraordinary circumstances, and which the minority
feels is an incorrect interpretation of the EU decree, then this consideration cannot be given
much significance.
The Decree’s main aim is to secure a high level of protection for passengers cf. decree
intentions no.1. And according to the EU Tribunal’s verdict of 22nd December 2008
(C549/07), any exception from standard compensation must be strictly interpreted.
In the Wallentin-Hermann case, the Court states that an extraordinary circumstance arises
only «if they relate to an event which (…) is not inherent in the normal exercise of the activity
of the air carrier concerned and is beyond the actual control of that carrier on account of its
nature or origin”.
In the way the minority views the matter, it lies within the airline’s normal operational activity
to solve or correct technical faults, irrespective of when these are discovered. Whether the
fault is unexpected or not is of little consequence, seeing it is not uncommon that technical
faults arise.
In the Wallentin-Hermann verdict, the Tribunal remarks in § 24 that technical faults which are
discovered during normal maintenance cannot be considered as extraordinary
circumstances. The Air Passenger Complaints Handling Body’s practice can indicate that the
Handling Body interprets the comment to mean that, antithetically, faults which are
discovered outside normal maintenance are extraordinary circumstances. The minority feels
there are no grounds to make such an assumption in the interpretation of the comment from
the EU Tribunal. Even faults which are discovered outside routine maintenance may well
occur as a normal part of the airline’s regular operations and as such will still be within the
airline’s control. The minority’s point of view is in keeping with the Court of Appeal’s view in
the Jet2 verdict and the recent verdicts from Østre Landsret (both mentioned above).
The minority bases its opinion on a different interpretation of the regulation about exception
from standard compensation, and it believes that the Handling Body should change its
practice in this matter.
After the above evaluation, the Handling Body came to the following conclusion, with one
vote against:
Comment:
The Air Passenger Complaints Handling Body, at the present time, finds there are no
grounds to change its practice regarding cases involving technical faults and the right to
compensation according to EU decree 261/2004 regulations.
Oslo, January 26th 2015