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24 July 2013
On June 19 2013 the Brussels local court ruled that a typhoon can be qualified as an extraordinary circumstance exonerating airlines from liability under EU Regulation 261/2004, which established common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights.
Regulation 261/2004 is strictly applied and often incorrectly interpreted, making it practically impossible for air carriers to invoke extraordinary circumstances. Therefore, the detailed decision of the Brussels court is welcome as it marks a reasonable application of the regulation and stresses important principles of which the courts often lose sight.
The case involved the delay of a flight from Paris to Phnom Penh via Ho Chi Minh City. The delay was due to a typhoon approaching Ho Chi Minh City. A passenger claimed €600 in compensation for the late arrival at Phnom Penh.
Pursuant to the regulation, air carriers' obligations are limited or excluded in cases where an event has been caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. Pursuant to Recital 14 of the regulation, extraordinary circumstances may occur in cases of political instability, meteorological conditions incompatible with the operation of the flight, security risks, unexpected flight safety shortcomings and strikes affecting the operation of an air carrier. However, the notion of 'extraordinary circumstances' is not defined in the regulation, implying that it is to be interpreted by national courts.
Claimants often challenge meteorological circumstances as constituting extraordinary circumstances as weather is predictable to some extent.
In its decision of June 19 2013, the Brussels court ruled that the air carrier had sufficiently and convincingly proved exonerating extraordinary circumstances consisting of a typhoon approaching Ho Chi Minh City and Phnom Penh at the scheduled arrival time, which prevented it from operating the flight as scheduled.
The court cited the air carrier's arguments regarding:
In addition, the court referred to several Dutch and French court rulings pursuant to which bad weather conditions, such as storms, were qualified as extraordinary circumstances exonerating airlines from compensating passengers for delay or cancellation.
As a consequence, the air carrier could not be held liable under the regulation and the court rejected the passenger's claim.
Notwithstanding the generally strict and even incorrect application of Regulation 261/2004, the decision of the Brussels local court marks a rational and logical interpretation of the notion of 'extraordinary circumstances' under the regulation.
The decision is in line with the recent European Court of Justice ruling in McDonagh v Ryanair (Case C-12/11, January 31 2013), in which the eruption of the Icelandic volcano was deemed to be an extraordinary circumstance exonerating airlines from compensating passengers, pursuant to the regulation.
The European Commission proposal to amend the regulation (COM(2013) 130 final, March 13 2013) contains a non-exhaustive list of events that shall be qualified as extraordinary circumstances, including "meteorological conditions incompatible with flight safety".
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Pierre D Frühling