Jaime Fernández Cortés November 2 2022 Extraordinary circumstances and knock-on effect in Spain Augusta Abogados | Aviation - Spain Jaime Fernández Cortés Aviation IntroductionCourt decisionsCommentIntroduction Operations of air carriers in EU airspace are often disturbed by the knock-on effect that certain disruptions have on future operations planned for the same aircraft. This is mainly caused by the intensive aircraft operations carried out by many air carriers (particularly low-cost airlines with short turnaround times) and by the airspace saturation that was observed before the covid-19 pandemic, and which is likely to occur again soon.The EU Flight Compensation Regulation(1) does not expressly contemplate the possibility for the operating air carrier to rely on an "extraordinary circumstance" in situations where that circumstance affected a previous flight operated with the same aircraft, for the purpose of avoiding payment of compensation to passengers. Some provisions have been included in several proposed reviews of this regulation, but it is uncertain if, when and how they will be finally approved at legislative level.While the possible amendments to the EU Flight Compensation Regulation are underway, some Spanish courts recently adopted a new position towards this question and have accepted the application of the concept of "extraordinary circumstance" to situations caused in previous rotations of the same aircraft, in line with the relevant precedents ruled at EU level.(2)Court decisionsBurgos Commercial Court No. 1(3) recently ruled that it is reasonable for an airline to operate several different routes on the same date with the same aircraft. The Court confirmed that the final disruption under advice in the proceeding was to be deemed as an "extraordinary circumstance", even when it was caused by a weather disruption suffered in previous rotations of the aircraft.Similarly, Teruel Commercial Court No. 1(4) upheld the position of the defendant low-cost carrier, arguing that a potential requirement to have spare aircraft for use upon an initial disruption would be "unreasonable" in the current air navigation sector and would imply "an unaffordable cost for the passengers themselves". On this basis, further rotations of the disrupted aircraft would also warrant the legal treatment of "extraordinary circumstances", therefore releasing the airline from the obligation to pay compensation under the EU Flight Compensation Regulation.Finally, Girona Commercial Court No. 1(5) acknowledged that air carriers are able to anticipate whether a disruption affecting one particular flight may have a knock-on effect on further rotations that are scheduled for the same aircraft on that date, leading to large delays and cancelations. However, the Court ruled that, in such a case, the airline cannot be expected to have spare fleet to cover this potential situation and cannot be required to cover further rotations with additional aircraft. The Court did not only base its decision on legal reasons, but also referred to the "highly competitive" aviation sector and to the intensive use of the fleet in the low-cost industry "for the benefit of customers".It must be emphasised that these are lower-court decisions, which have not been confirmed by higher levels of the Spanish judiciary. Due to their very nature, in Spain, most passenger claims are conducted through a small claims procedure, which bars the parties from appeal proceedings. It is therefore unlikely that this question will be discussed by the higher courts, so that argument will have to be put forward on a case-by-case and court-by-court basis.CommentRelevant legal and business grounds might support the inclusion of the knock-on effect in the next legislative review of the concept of extraordinary circumstances. Real life situations decided in the Spanish cases commented on in this article might be of help to improve legislation and avoid excessive rigidity where factual circumstances call for nuance.For further information on this topic please contact Jaime Fernández Cortés at Augusta Abogados by telephone (+34 933 621 620) or email ([email protected]). The Augusta Abogados website can be accessed at www.augustaabogados.com.Endnotes (1) Regulation (EC) No. 261/2004.(2) Court of Justice of the European Union judgments in cases C-826/19 and C-74/19.(3) Case 242/2019.(4) Case 532/2019.(5) Case 826/2017.