What is an exceptional circumstance?
Measures / Restrictions of air traffic control, reallocation of slots and co - popular excuses of the airline. But is this an extraordinary circumstance?
If a flight is delayed by more than 3 hours, the passenger is entitled to a flat-rate compensation payment of 250, - €, 400, - € or 600, - € against the performing airline. If a passenger claims compensation from an airline, he often receives a refusal from the airline, whereby the airline relies on "extraordinary circumstances". Popular reasons given by the airlines for exceptional circumstances, in addition to "weather conditions", are that a flight could not be carried out on time due to "measures taken by the flight authorities" or "restrictions of the air traffic control / flight safety authorities". Often, the airline also states that the measures / restrictions have led to a "reallocation of slots" for the launch, but the airline has no influence on this, which is why it is an "exceptional circumstance".
Such "excuses" are probably therefore so popular with the airlines, because the passenger can not verify the information provided by the airline, as the passenger simply does not get insight into the relevant flight documents. On the other hand, the said "excuses" can indeed be exceptional circumstances. However, this is by no means mandatory. In fact, it must be checked in each individual case whether an exceptional circumstance actually exists.
An airline can only then invoke exceptional circumstances when it claims and proves that the delay is due to an event that (1. not part of the normal exercise of the activity of the airline concerned and (2. Prerequisite) not controllable by the airline and (3. Prerequisite) the delay could not be avoided by reasonable measures by the airline.
If the airline fails with one of the three proofs, there is no extraordinary circumstance and the passenger is entitled to the compensation.
Unfortunately, many local courts in the first instance take rash reasons of the airlines ("restrictions / measures of air traffic control, changed slot allocation") actually rashly an extraordinary circumstance. The courts then often judge that an airline would be bound to the times / slot assigned to it, and an amendment by the airport authorities would constitute an external event beyond the airline's control. Although this is correct in itself, this alone does not lead to the existence of an exceptional circumstance.
Because it is not sufficient for an extraordinary circumstance that certain circumstances are not controllable by the airline. These circumstances must also be "extraordinary".
For the judicial review, this means that the cause or the reason for the action by the flight authorities or for the new slot allocation must be presented and proven by the airline. Because the execution of flights is typically the subject of extensive regulations to which the airline must submit. Take-off and landing in particular are dependent on a permit. When carrying out a flight and using an airport, airlines can be the addressee of numerous and varied instructions. It can be assumed that an air carrier receives instructions that it cannot influence in individual cases. However, it can hardly be ascertained that this is entirely outside the normal activity of the air carrier. The fact that a departure permit or a slot is allocated that is outside the times provided in the flight plan therefore does not seem out of the ordinary (see AG Erding, order for reference of 27.09.2018 - 5 C 2980/17).
This means that an airline can not rely on an exceptional circumstance by claiming an uncontrollable "slot change". Crucial are the reasons for the new slot allocation. Is this reason "extraordinary" or is the reason merely "part of the Expected in general flight operations"? If the airline does not set out the exact circumstances for an "exceptional" reason, the passenger is entitled to. The same as for the "slot change" also applies to "measures of the aviation authorities" or "restrictions of the airport authorities" or similar nebulous reasons.
If you have questions about flight delays or cancellations, please contact our Passenger Rights Specialist, Mr Lawyer Michael Gabler.