The most recent Italian case law has upheld the European Court of Justice's (ECJ's) interpretation of EU Regulation 261/2004 in Paragraph 26 of Wallentin-Hermann (C-549/07) and Paragraph 38 of Van der Lans (C-257/14) by qualifying a hidden manufacturing defect as an 'extraordinary circumstance' under the meaning of Article 5(3) of the regulation and rejecting passenger claims for compensation under Article 7 of the regulation.

According to the ECJ:

"Certain technical problems may constitute extraordinary circumstances. That would be the case 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."

According to the abovementioned case law, the fact that a technical fault was present in zero-hour components would reasonably support the carrier's argument that the fault could be traced back to the manufacturing process and was not an in-flight wear and tear issue or the result of the mere premature failure of components.

However, the qualification of a hidden manufacturing defect as an 'extraordinary circumstance' under Article 5(3) of EU Regulation 261/2004 requires that:

  • the hidden manufacturing defect be proven by a report issued and executed by the manufacturer, such documentation being a means of proof which satisfies the requirements of Section 5.1 of the new guidelines on the interpretation of EU Regulation 261/2004, published by the European Commission on June 10 2016;
  • the report be published by the manufacturer before the incident (ie, the flight delay or cancellation); and
  • evidence be given by the carrier that the technical fault specifically affected the flight concerned.

While only of persuasive authority, these requirements provide airlines with additional protection under Article 5(3) of EU Regulation 261/2004, particularly given the general tendency of the Italian courts to provide a strict interpretation of the above provision following the general principle stated by the ECJ in Paragraph 20 of Wallentin-Hermann.(1)

For further information on this topic please contact Laura Pierallini at Studio Legale Pierallini e Associati by telephone (+39 06 88 41 713) or email ([email protected]). The Studio Legale Pierallini e Associati website can be accessed at


(1) (C‑549/07, EU:C:2008:771).