Complaints and enquiries - Air Transport Users Council

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compensate a number of passengers for cancellations caused by “crew
shortages” – we argued that this was foreseeable (and therefore not an
“extraordinary” circumstance) and could be prevented by rostering extra
backup staff to cover for any shortages.
Our success with these types of complaints and the recent European Court of
Justice ruling on the “Wallentin” case (see box below) gives us renewed
optimism that passengers will be in a better position in the future to pursue
their right to compensation when their flight is cancelled.
Summary of European Court of Justice Judgement C-549/07- Wallentin – Hermann
22 December 2008
Background
Mrs Wallentin-Hermann’s flight from Vienna to Brindlisi on Alitalia was cancelled as a
result of an engine defect which had been discovered the day before during a check.
Following the airline’s refusal to pay her compensation, Mrs Wallentin-Hermann went to
court in Austria. The Commercial Court, Vienna, made a reference to the Court of Justice
of the European Communities about whether the technical problems which led to the
cancellation of the flight were covered by ‘extraordinary circumstances’ under Regulation
(EC) No 261/2004 and therefore would exempt Alitalia from the obligation to pay
compensation.
Judgement
The Court of Justice found that “in the light of the specific conditions in which air travel
takes place and the degree of technological sophistication of aircraft, airlines are
confronted as a matter of course in the exercise of their activity with various technical
problems to which the operation of those aircraft inevitably gives rise. The resolution of a
technical problem caused by failure to maintain an aircraft must therefore be regarded as
inherent in the normal exercise of an air carrier’s activity. Consequently, technical
problems which come to light during maintenance of aircraft or on account of failure to
carry out such maintenance do not constitute, in themselves, ‘extraordinary
circumstances’.”
However, it did not rule out altogether that technical problems could be considered
“extraordinary circumstances”. It suggested that problems that stemmed from events
“which are not inherent in the normal exercise of the activity of the air carrier concerned
and are beyond its actual control” might be considered “exceptional circumstances”. For
example, if a fleet of the aircraft were affected by a hidden manufacturing defect which
impinged on flight safety.
A passenger had a reservation for a flight from the Isle of Man to Birmingham.
Unfortunately her flight was cancelled due to technical difficulties. The airline
subsequently refused her claim for compensation. We took up her case with the
airline and argued that, in light of the Wallentin ruling, the passenger was due
£250 in compensation under Regulation EC261/2004. The airline subsequently
paid up.