On May 16 2017 the Cologne Regional Court ruled (11 S 107/16) that if the flight in question was delayed due to a Eurocontrol rescheduling of the airway slot, passengers had no right to compensation pursuant to EU Regulation 261/2004, irrespective of whether the rescheduling was based on reasons which, when considered individually, would result in extraordinary circumstances.

Facts

The plaintiff claimed compensation pursuant to Articles 7 and 5 of the regulation following an eight-hour delay at the destination airport in Istanbul. The plaintiff was booked on a flight from Cologne to Istanbul on July 30 2015. The flight should have departed from Cologne at 6:05pm (coordinated universal time) and arrived in Istanbul at 9:00pm.

On June 15 2015 the defendant was informed by a notice to airmen that there would be construction works at the Istanbul airport on the day of the flight, which would result in the closure of the runways between 10:30pm and 2:30am.

Due to capacity problems at the destination airport, Eurocontrol postponed the airway slot for the flight in question to 7:35pm. Based on the calculation of the flight time and the airway slot, the defendant was unable to reach the destination airport before the runways closed. Consequently, the defendant rejected the 7:35pm slot and finally received a new slot for 2:20am, which was undertaken by standby crew in order to meet the regular crew's rest time.

The plaintiff alleged that the defendant had not taken all reasonable measures. In her opinion, the defendant should have cancelled the flight after learning of the destination airport's temporary closure.

Decision

The Cologne Local Court awarded compensation to the plaintiff without examining the relevant factors of the case. The court stated that the construction works at the destination airport were the reason for the delay. Due to its knowledge regarding the closure, the defendant could have reacted to these circumstances. Hence, Eurocontrol's regulatory measures could not have resulted in extraordinary circumstances. The defendant appealed to the Cologne Regional Court.

The court took evidence by hearing the defendant's head of traffic control centre as a witness and ruled that the extraordinary circumstances defence pursuant to Article 5(3) of EU Regulation 261/2004 applied, since the delay was caused by Eurocontrol's regulatory measures. According to the court, after taking evidence it was established that the defendant had been aware of the construction works at the destination airport since June 15 2015, but the change in the airway slot was only announced just before the scheduled departure of the flight. Since the defendant would have reached the destination airport using the scheduled airway slot in due time, the court found that the airline was right to have trusted that the scheduled airway slot could be used.

Based on principles developed by the European Court of Justice, the Cologne Regional Court concluded that the change in the airway slot resulted in extraordinary circumstances and that there were no reasonable measures that the defendant could have taken to avoid the delay.

According to the court, Eurocontrol's regulatory measures were a result of external effects on flight operation (eg, severe weather conditions).

An airline must prove that all reasonable measures have been taken to meet the requirements for compliance with a scheduled departure time. However, according to the court, in this case the airline had no influence over whether takeoff was permitted at the scheduled time.

The decisive factor was the fact that the delay was not caused by the temporary closure of the destination airport, but by the short-term change in the airway slot. The court stated that it could not be considered economically reasonable for an airline to restructure its flight plan due to a temporary closure of an airport and waive all flights which would arrive at the destination airport immediately before the closure in view of the possibility that airway slots might be changed by Eurocontrol.

Finally, the court stated that the cancellation of the flight – as argued by the plaintiff – would have been counterproductive and would not therefore be considered a reasonable measure.

The decision is final.

Comment

Taking into account the Cologne Local Court decision, it is reassuring to see that the Court of Appeal familiarised itself with the specific circumstances of the case to find the correct reason for the delay. Even if the airline was aware of temporary closure, it should have been able to rely on the airway slot scheduled to reach the airport before closure. The decision respects the procedures of international air traffic and attempts to understand the challenges that airlines face.

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For further information on this topic please contact Kamila Uckat at Arnecke Sibeth Rechtsanwaelte by telephone (+49 69 97 98 85 0) or email (kuckat@arneckesibeth.com). The ArneckeSibeth website can be accessed at www.arneckesibeth.com.