On 15 January 2018 the Federal Supreme Court ruled, in an as-yet unpublished judgment (X ZR 15/18 and 85/18), that the complete failure of an airport computer system may be considered an extraordinary circumstance within the meaning of Article 5(3) of the EU Flight Delay Compensation Regulation (261/2004).

Facts

The plaintiffs claimed compensation for a flight delay from the defendant air carrier pursuant to Article 7(1)(c) of the EU Flight Delay Compensation Regulation.

The plaintiffs booked a flight from New York to Stuttgart via London with an air carrier based in the European Union. The flight from New York to London was delayed and the plaintiffs missed their connecting flight to Stuttgart. They arrived in Stuttgart more than nine hours late.

The delay had been caused by the failure of both the primary and back-up computer system at the check-in counters at John F Kennedy International Airport, New York. Due to a strike at the company responsible for providing telecoms services to the airport operator, the system failure took 13 hours to rectify.

The Nurtingen Local Court and the appeal court (the Stuttgart Regional Court) dismissed the claim on the grounds of an extraordinary circumstance.

The appeal court found that technical defects, such as the failure of an individual computer at check-in and even a short-term failure of all primary systems, are in principle part of air carriers' normal flight operations and therefore do not constitute an extraordinary circumstance.

However, in this case, a special situation had occurred due to a combination of circumstances: not only had the primary system failed, but also the back-up system. Further, due to the strike at the company responsible for providing telecoms services to the airport operator, the systems were not restored to working order for 13 hours. Therefore, the accumulation of unfavourable events constituted extraordinary circumstances that did not form part of normal flight operations.

Decision

Confirming the lower-court judgments, the Federal Supreme Court held that airport operators are responsible for operating the airport's technical facilities, including telecom lines. System failures caused by technical defects which affect or suspend the functioning of such equipment over a prolonged period are an external event affecting air carrier flight operations. Such events cannot be controlled by air carriers as the monitoring, maintenance and repair of such facilities is outside their responsibility and competence.

Comment

The Federal Supreme Court based its decision on the specific circumstances of the case. It remains to be seen how the Federal Supreme Court will decide in other cases concerning airport facilities.

The jurisdiction of the lower courts is inconsistent – in most cases, the failure of airport facilities is not considered extraordinary, but rather part of air carriers' normal flight operations.

For further information on this topic please contact Kathrin Vaupel or Susan Weltz at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (k.vaupel@asd-law.com or s.weltz@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

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