The European Commission has published guidelines to clarify when a delay or cancellation should generally be considered to not be an airline’s fault (so called ‘extraordinary circumstances’). Airlines have to compensate passengers when flights are cancelled within two weeks of departure or arrive more than three hours late, but only if the issue was within the airline’s control. Regardless of fault, airlines are obliged to provide assistance to passengers, including refreshments and accommodation where necessary, even where there is no requirement to pay compensation.
Until now, there has not been agreement on which circumstances are considered extraordinary and which are considered to be within an airline’s control. Following close co-operation between European regulators, engagement with technical experts and discussion with the airline industry, the publication of the EC list should allow passengers to have a better idea if disruption they face could lead to compensation, and should also speed up the process of assessing and paying claims.
The guidelines state:
THIS DOCUMENT IS FOR INFORMATION AND GUIDANCE ONLY. THE CONTENT OF THIS DOCUMENT DOES NOT REPRESENT A BINDING OPINION ON THE EUROPEAN COMMISSION
Non-exhaustive and non-binding list of extraordinary circumstances resulting from the work of NEB for the application of the current Regulation (EC) 261/2004.
Note 1: An extraordinary circumstance is defined by the following general principle: the event has to meet the three criteria: unpredictable, unavoidable and external.
Note 2: Whilst each of the circumstances listed below is likely to constitute extraordinary circumstances for the purpose of the Regulation, national enforcement bodies are required to examine individual cases to determine whether distinguishing factors exist.
Note 3: That in each of the following examples, the air carrier must provide proof of the circumstances alleged and it must also clearly demonstrate how these circumstances resulted in the flight disruption.
Note 4: After demonstrating the existence of extraordinary circumstances, the air carrier must also explain what reasonable measures it took to subsequently avoid the disruption.
Note 5: The incident needs to be evaluated in the context of the category to which it relates.
The guidelines then list 30 ‘extraordinary circumstances’, which can be found here: Extraordinary Circumstances Guidelines.
The guidelines also includes a list of five circumstances that are NOT extraordinary and states: “Whilst the circumstances listed below are unlikely to constitute extraordinary circumstances for the purpose of the Regulation, national enforcement bodies are required to examine individual cases to determine whether distinguishing factors exist.”
- Technical issues which arise as a result of the air carrier’s failure to maintain its aircraft in accordance with the required maintenance programme.
- Technical issues which were found during maintenance where the part or system in question was scheduled to be checked. Over-running maintenance can be a reflection of poor maintenance planning.
- When this occurs as a result of poor operational planning by the air carrier and inadequate flight and turnaround times being allocated for the aircraft.
- Where the failure to prepare and submit the documentation necessary to operate the flight was due to factors within the air carrier’s control.
- SAFA aircraft inspections which reveal technical issues which require immediate assessment and/or aircraft repair. (These are issues that should have been addressed during the normal maintenance or operation of the aircraft.)