Friederike Wallentin-Hermann v Alitalia – Linee Aeree Italiane Spa

The EU Denied Boarding Regulations require airlines to pay compensation to passengers (250, 400 or 600 Euros, depending on the flight length) where a flight is cancelled on less than two weeks’ notice and which results in a delayed arrival ranging from 2-4 hours, depending on when the passenger is informed of the cancellation. However, the airline can escape paying compensation if it can show that the cancellation was caused by “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

The decision of the European Court of Justice (“ECJ”) in the above-cited case gives guidance, for the first time, on the meaning of “extraordinary circumstances” in the context of aircraft technical problems.

The facts

Mrs Wallentin-Hermann booked three seats on a flight with Alitalia from Vienna to Brindisi via Rome. The flight was due to depart at 6:45am with arrival at Brindisi later that morning at 10.35am.

Having checked in, the passengers were informed, 5 minutes before the scheduled departure time, that the flight had been cancelled. They were transferred to an Austrian Airlines flight, which arrived in Rome 20 minutes after the time of departure of their connecting flight to Brindisi, which they therefore missed. They eventually arrived at Brindisi at 2:15pm, 3 hours 40 minutes late.

The Alitalia flight was cancelled due to a complex engine defect in the turbine which had been discovered the day before departure. Alitalia were informed of the problem during the night preceding the flight at 1:00 am.

Mrs Wallentin-Hermann claimed 250 Euros compensation from Alitalia under the Denied Boarding Regulations due to the cancellation of her flight, along with 10 Euros for telephone expenses. Alitalia denied that it had to pay any compensation and relied on the “extraordinary circumstances” defence. The case first came before the District Commercial Court in Vienna, which upheld Mrs Wallentin-Hermann’s claim and rejected Alitalia’s argument that the technical defects which affected the aircraft amounted to “extraordinary circumstances”. Alitalia appealed to the Commercial Court in Vienna, which decided to refer the case to the ECJ for a preliminary ruling on 4 questions, including whether there are “extraordinary circumstances” within the meaning of the Denied Boarding Regulations if a technical defect in the aircraft causes the cancellation of a flight.

The Decision

The starting point for the ECJ, in the absence of any definition in the Regulations of “extraordinary circumstances”, was that their aim was to protect consumers and reduce the trouble and inconvenience caused to passengers when flights are cancelled. Although, in the preamble to the Regulations, there is a list of events which may constitute “extraordinary circumstances”, including “unexpected flight safety shortcomings”, the Court was keen to emphasise that it does not necessarily follow that their mere occurrence would enable an airline to take advantage of the defence. Instead, it ruled that for an event to be characterised as “extraordinary” it must be one which “is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.” It went on to say that aircraft experiencing technical problems is part and parcel of an airline’s operation and that one of the reasons why aircraft are subject to regular checks is to prevent such problems from arising. It followed from this that the resolution of a technical problem which came to light during maintenance of the aircraft or as a result of a failure to carry out maintenance could not amount to an “extraordinary circumstance” under the Regulations.

The Court did, however, emphasise that this does not mean that it is never possible for technical problems to constitute “extraordinary circumstances”. It cited specific examples of where:

  • an aircraft manufacturer or competent authority revealed that there was a hidden manufacturing defect on an aircraft which impacts on safety; or
  • damage was caused to an aircraft as a result of an act of sabotage or terrorism.

Such events are “not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.”

One further point arising out of the court’s decision is worth mentioning. It is not just necessary to satisfy the “extraordinary circumstances” test for the airline to be excused from paying compensation. It must also show that the circumstances “could not have been avoided even if all reasonable measures had been taken”. It is clear from the language of the Court’s decision that this is a tough test to meet: the airline will have to “establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight.”

The case has been sent back to the Vienna Commercial Court for it to decide, inter alia, whether the technical problems cited by Alitalia stemmed from events “which are not inherent in the normal exercise of the activity of the air carrier concerned and were beyond its actual control”.

Where does this leave us? The Court is effectively saying that an aircraft “going tech” is not an unusual occurrence for airlines and, on that basis, such events cannot amount to “extraordinary circumstances”. While it did not say that a technical problem can never be an “extraordinary circumstance”, the likely effect of the decision is that it will be much more difficult for airlines to escape paying compensation under the Regulations where flights are cancelled due to technical problems. To that extent, the decision is very much a victory for passengers.