"It happened on an earlier flight": when can the airline blame the morning's disruption?

A single aircraft operates several flights in succession over the course of a day. If the aircraft is held up in the morning, the delay carries through the whole rotation, which is why refusals are often phrased as the aircraft having arrived late from a previous destination. Under Article 5(3) of Regulation (EC) No 261/2004, the operating air carrier escapes paying compensation under Article 7 only if it can prove that the disruption was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The burden of proof lies with the carrier, not with you.

When the airline points to an earlier flight, two conditions must both be met, in addition to the requirement of reasonable measures. The event must be extraordinary within the meaning of the Regulation, and it must be the cause of your particular flight being affected. If the second condition is not met, the airline's defence does not hold, even if the event was itself extraordinary.

The Regulation anticipates that one event may strike several flights. Under recital 15, extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations. But the recital speaks specifically of air traffic management decisions, and it is not a general free pass for anything that happened to the aircraft earlier in the day.

The question was decided by the Fourth Chamber of the Court of Justice of the EU on 11 June 2020 in Case C-74/19, LE v Transportes Aéreos Portugueses SA. The background was a passenger who behaved so disruptively that the pilot in command diverted the flight to another airport in order to disembark him. The same aircraft was then due to operate the flight on which the passenger LE was booked, and that flight was heavily delayed.

The Court's answer: the carrier may rely on an extraordinary circumstance which affected a previous flight which it operated using the same aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the subsequent flight. That assessment must have regard in particular to how the carrier operates the aircraft.

In the same judgment the Court stated what does not normally amount to a reasonable measure: re-routing the passenger on the carrier's own flight arriving on the day following the day originally scheduled. That is accepted only where there was no other possibility of re-routing (direct or indirect, by the carrier itself or any other air carrier), arriving at a time which was not as late, or where such re-routing would have constituted an intolerable sacrifice in the light of the capacities of the carrier's undertaking at the relevant time.

Disruptions often have more than one cause. The Court of Justice of the EU examined this in Case C-315/15, Pešková and Peška v Travel Service a.s., on 4 May 2017. Where a delay is caused both by an extraordinary circumstance and by something that is not extraordinary, the delay attributable to the extraordinary circumstance must be deducted from the total length of the flight's delay in arrival, provided that the circumstance could not have been avoided and that the carrier took all reasonable measures to avoid its consequences. What remains is assessed on its own.

The threshold for compensation in the event of delay is three hours at the final destination. It does not come from the wording of the Regulation but from the judgment of the Court of Justice of the EU in Joined Cases C-402/07 and C-432/07, Sturgeon and Others, of 19 November 2009. Where the remainder reaches three hours or more, you may be covered by the right to compensation, even though part of the delay was extraordinary.

References to earlier disruptions often come together with a re-routing, and there is a rule here that many people miss. In Case C-832/18, A and Others v Finnair Oyj, decided by the Eighth Chamber on 12 March 2020, the Court of Justice of the EU held that a passenger who has received compensation for a cancelled flight and has accepted the re-routing flight offered may also claim compensation for the delay of the re-routing flight, where that delay is such as to give rise to entitlement to compensation and the air carrier of the re-routing flight is the same as that of the cancelled flight.

Accepting a re-routing therefore does not close the door. The two disruptions are assessed separately, and the carrier may need to establish extraordinary circumstances twice. In the same judgment the Court also held that the failure of a so-called "on condition" part (a part which is replaced only when it becomes defective) cannot normally be relied on as an extraordinary circumstance, even where the carrier permanently stocks a spare part.