The European Aviation Safety Agency should intervene in individual flight delay or cancellation compensation claims, to sway court decisions that may otherwise negatively influence airline safety considerations, the European Regions Airline Association has said.

The airline association, which represents over 50 carriers and more than 100 industry service providers, said in a media briefing on 20 February that EASA should assist in compensation claims where a delay or cancellation occurred because of safety concerns.

Simon McNamara, director general of the industry group, told GTDT Aviation Law News that an increasingly narrow interpretation of EU regulation 261/2004 – which governs compensation for delayed or cancelled flights – by the courts was affecting operational decision-making and causing airline staff to balance commercial considerations against safety concerns.

He pointed to an opinion by European Court of Justice advocate general Yves Bot in Marcela Pešková, Jiří Peška v Travel Service last July, which argued that a delay because of a bird strike was not an extraordinary, unforeseen circumstance.

“We would like EASA to intervene in pending court cases,” McNamara said, to support airlines where delays and cancellations occurred because of safety concerns.

“A lot of court rulings on technical cancellations are being taken by courts and judges who probably don’t have the safety background that many in the industry do. They are very pure decisions, based on legal criteria. From a legal perspective it makes sense, but from an industry perspective it doesn’t. We need more input on safety.”

McNamara said the airline association has anecdotal evidence – based on conversations with operators – that commercial pressures are beginning to affect operational decisions. The fear of potential compensation claims – which arise where the reason for a delayed or cancelled flight was foreseeable – may increasingly affect safety considerations, he added.

“We are concerned as we believe crews are feeling additional commercial pressure, especially as the three-hour compensation threshold approaches,” he said. “We brought this to the attention of EASA and said we think there is an issue. We want an independent body to examine this.”

EASA has asked the industry group for evidence to substantiate its concerns, McNamara said. The trade association is putting together a file of evidence that it expects to deliver next month.

McNamara also called on the safety regulator to help guide the ongoing revision of EU regulation 261/2004, to ensure that delays because of safety concerns are an extraordinary circumstance that do not attract compensation, McNamara said.

That revision process is currently being stonewalled in the EU Council of Ministers by the Spanish government, because of an ongoing dispute with the UK over Gibraltar.

EASA could also provide guidance to national enforcement bodies and courts to use when considering such claims, McNamara said.

Safety concerns related to EU regulation 261/2004 are a common point of contention among carriers.

Jeffrey Shane, general counsel at IATA, said in a recent interview with GTDT Aviation Law News that current EU compensation rules are the “most egregious example of bad regulation”.

“Anything that introduces financial considerations into safety-related decisions – if the captain has to weigh the cost to the company of delaying the flight in order to investigate a mechanical anomaly – that is the very quintessence of bad regulation,” he said.