Exceptional Circumstances

The defense of the airline

Wherever there is a cancellation or a delay greater than 3 hours, the airline will have to pay compensation unless it can show that there is a legal defence available to it. Under the flight compensation regulations the only defence is that the delay or cancellation was the result of “extraordinary circumstances which could not have been avoided even if all reasonable steps had been taken”.

There is no definition of exceptional circumstances in the regulations, although the narrative preamble which introduces the regulations but does not actually form part of the law suggests that when the European Parliament were making this exception for extraordinary circumstances, they had in mind events like:

• extreme adverse weather
• civil unrest, riot or uprising
• security risks and terror threats
• strikes and industrial action.

However, many airlines would frequently refuse to pay compensation, stating that the cancellation was caused by “extraordinary circumstances”. Very often no further explanation was offered to the passenger and it was clear that the airlines considered that if they raised this issue, they had responded appropriately to the passenger’s claim. When pressed, most airlines would state that the extraordinary circumstances which prevent the flight from taking off related to a technical fault with the aeroplane.

2008 European Court judgment

In 2008 the European Court of Justice was asked to give its opinion on the use of the “extraordinary circumstances” defence. The court delivered a judgment which contained two key points:

1.       Wherever an airline raised the defence of “exceptional circumstances” it was not the responsibility of the passenger to disprove this – instead the airline would have to demonstrate that the facts of the case amounted to "extraordinary circumstances";

2.        Technical or maintenance issues are not to be considered ‘extraordinary circumstances’ unless they arise from an exceptional event beyond the control of the airline (e.g. jet engine failure as a result of ash from an erupting volcano would provide the airline with a valid defence)

2012 European Parliament motion

On 29 March 2012, the European Parliament approved a motion to update the regulations on air passengers' rights with further clarification about when compensation should be awarded, as well as addressing a variety of other shortcomings which had become apparent since the initial inception of the regulations.

One of the issues raised was the vague definition of 'exceptional circumstances', which, as stated above, was being used by a number of airlines to try and escape their responsibility to pay compensation to wronged customers. The motion proposed that the European Court rulings on the issue be enshrined in the regulations, clearly setting out that routine technical faults did not constitute 'exceptional circumstances' as they are a regular occurrence for airlines, and that the airlines were therefore at fault for not having contingency plans in place.

The revised regulations do not go into force until next year, and it has yet to be seen whether or not airlines will abide by these rules in the meantime or continue with their attempts to wriggle out of responsibility.

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