Aircraft technical problems do not amount to “extraordinary circumstances” – regulations 261 upheld in another denied boarding claim


Aircraft technical problems do not amount to “extraordinary circumstances” – regulations 261 upheld in another denied boarding claim

A recent judgment issued by the Court of Justice of the European Union (CJEU) confirms aircraft operator challenges presented by Regulation 261 – where a decision was made in relation to passengers receiving compensation where a flight is cancelled due to a technical problem of the aircraft.



The case relates to a delayed flight from Ecuador to Amsterdam. Ms Van der Lans had a ticket for a flight with Koninklijke Luchtvaart Maatschappij NC (KLM) which was due to depart from Quito (Ecuador) on 13 August 2009 at 9:15 local time. The flight eventually departed the following day at 19:30. There was a total delay of 29 hours.


What caused the delay?

The delay was discovered during the “push back”, a ground procedure in which either tugs or pushback tractors move an aircraft backwards. Although a carrier can do this itself, it may cause damage to the terminal building or equipment and potentially blow debris causing damage to the engine. During the pushback, one of the aircraft engines did not start due to lack of fuel feed.


The new parts required (engine fuel pump and hydro mechanical unit) had to be flown from Amsterdam to then be installed in the aircraft, which resulted in the delay mentioned above.


The issue

Ms Van der Lans argued that she should be compensated due to the substantial delay in her flight in accordance with Article 5 of Reg 261. The amounts of compensation are fixed and are set out in Article 7 of Reg 261 – read more about Reg 261 here.  


KLM defended its position to not compensate Ms Van der Lans in accordance with Article 5 (3) which provides an air carrier shall not be liable to pay compensation “…if it can provide that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. 


The question which became of vital importance is whether a technical problem amounts to “extraordinary circumstances”?


The judgment

It was held that “…functioning aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course in the exercise of their  activity with such problems…technical problems…cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5.


Even though the technical problems themselves may be extraordinary, as the case here, the parts which needed replacing were not passed their average lifetime, and they had taken all the requisite checks. The court has set out that such problems arise as a matter of course and do not themselves amount to being “extraordinary circumstances”.


The result of this judgment means that air carriers may not rely on the “extraordinary circumstances” provision to refuse paying compensation to passengers.



This presents a significant challenge for aircraft carriers who must prepare to ensure delays are kept to a minimum, and expect that the result of delays due to a technical problem will allow passengers to claim compensation.  

Alina Nosek, Partner, AviationFor more information on aviation law or related enquiries, contact Alina Nosek, Head of Aviation.

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Published: 9 Dec 2015

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