Technical faults: when does the airline's exception hold?

Where a flight is cancelled, Regulation (EC) No 261/2004 may give a right to financial compensation, and under the case law of the Court of Justice of the EU the same may apply to a delay of at least three hours at the final destination. One exception concerns notice: if you were told of the cancellation at least two weeks before departure, no compensation is due, whatever the cause, and with shorter notice an offer of re-routing within certain time limits can have the same effect (Article 5(1)(c)). Another concerns the cause, and Article 5(3) is the airline's way out of that obligation: the operating air carrier is not obliged to pay compensation under Article 7 if it can prove that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The Court of Justice has read the exception as containing two requirements, and both must be met (C‑549/07, C‑832/18). The event must, by its nature or origin, fall outside the airline's normal activity, and it must fall outside the airline's actual control. The carrier must also be able to show that it nonetheless took every reasonable measure to avoid the consequences. The burden of proof lies with the airline, not with you.

Recital 14 of the Regulation mentions unexpected flight safety shortcomings as an example of what may constitute an extraordinary circumstance, and it is the wording closest to hand when an airline writes "technical fault" in a refusal. The Court of Justice of the EU has, however, read the exception narrowly, precisely because it is an exception to a general rule intended to protect passengers.

The foundation was laid in Case C‑549/07, Wallentin‑Hermann v Alitalia – Linee Aeree Italiane SpA, decided on 22 December 2008. The Court held that technical problems cannot in themselves be regarded as extraordinary circumstances: faults that come to light during maintenance, or that are attributable to poor maintenance, fall within the activity. The judgment also answers two further questions worth remembering. The fact that the carrier has complied with the minimum rules on maintenance is not in itself enough to establish that all reasonable measures were taken. And how often a particular carrier experiences technical problems says nothing in itself about whether the circumstance was extraordinary.

In Case C‑257/14, van der Lans v Koninklijke Luchtvaart Maatschappij (KLM), decided on 17 September 2015, the Court examined the argument that the fault came unexpectedly. The Quito–Amsterdam flight planned for 13 August 2009 was delayed by around 29 hours after an engine fuel pump and a hydro mechanical unit had to be replaced. The Court concluded that such a technical problem, even when it occurs unexpectedly, is not attributable to poor maintenance and was not detected during routine maintenance checks, does not fall within the concept of extraordinary circumstances. Keeping aircraft airworthy is at the heart of running an airline. The Court added that the carrier cannot refuse compensation by relying on a fault of the manufacturer of certain defective components either.

Case C‑832/18, A and Others v Finnair Oyj, decided on 12 March 2020, concerns a detail that can settle practical disputes: parts that are replaced only once they become defective, so-called "on condition" parts. The Court held that the failure of such a part is in principle inherent in the normal activity, and that the carrier therefore cannot rely on extraordinary circumstances, even if it keeps a spare in stock, unless the failure nonetheless falls outside both the activity and its actual control. The same judgment contains a point more people should know: a passenger who has received compensation for a cancelled flight and accepted re-routing may also be entitled to compensation for a delay on the re-routing flight, provided the conditions for that are met and the same carrier operates both flights.