12 December 2022, etc.venues Monument, London
Business Travel Show Europe, presented by The BTN
21 November, London Hilton Metropole
The European Court of Justice was asked to decide the question of ‘extraordinary’ circumstance’, in the context of an airline defending compensation payments made to passengers under European Union (EU) Regulation 261/2004, following a flight delay.
Van der Lans versus KLMis one of a line of cases relating to delays arising from unexpected technical problems (in this case, the fuel pump and a hydro mechanical unit).
These faults were discovered prior to the departure of a flight from Ecuador to Amsterdam. Replacement parts were not available at such a small airport and had to be flown in from Amsterdam for installation before the flight could depart. The airline argued that both components were within their average lifespan and there was no manufacturer’s advice about defects when the components reached a certain age.
The European Court found that these defects could not amount to ‘extraordinary’ circumstances and the airline was required to compensate passengers following the delay at the rate set out in EU Regulation 261/2004 of €600.
Airlines are increasingly having to pay substantial sums for circumstances which they would maintain are ‘extraordinary’. Unexpected technical problems can occur to well-maintained aircraft, and for safety reasons many technical defects are on the ‘minimum equipment’ list, under which airlines are forbidden to depart until certain equipment is shown to be fully operational.
These European Court decisions essentially close the door to airlines avoiding paying compensation when the delay is caused by a technical fault.
In an earlier case (Ash versus Thomas Cook Airlines), a judge at Manchester County Court found that a bird strike, damaging an aircraft’s engine, was not an ‘extraordinary’ circumstance that the airline could use as a defence against the payment of flight delay compensation.
It now seems that only hidden manufacturing defects, or acts of sabotage and terrorism, will amount to ‘extraordinary’ circumstances to defeat a passenger’s claims under the regulation.
Airlines are hopeful that this strict regime can be relaxed if Europe introduces a new regulation governing cancelled flights, delays and denied boarding that is more sympathetic to the operation of highly technical equipment under strict safety policies, and where airlines do their best to ensure punctuality and the safety of aircraft fleets.
There remain many areas where further clarification is likely to be sought for the causes of delays, including cabin crew sickness, defects to airport equipment, strikes, air traffic control problems and weather, and the extent to which these can be deemed ‘extraordinary’.
October 2015 the European Court of Justice found that certain travelling time by workers between sites amounted to ‘working time’, for which they were entitled to be paid.
In this case, the workers used company vehicles to travel from their homes to the places where they carried out their work (installing security systems). The worker returned home at the end of the day in his vehicle.
The court found that where workers used a company vehicle to get from home to a customer designated by the employer, returned home from the premises of such a customer, or went from the premises of one customer to another during the course of a working day, then this travelling time should be regarded as ‘working’. While the employer remained free to determine how much pay would be given for this travelling time, it did amount to working time.
There are many business travellers who may well fall into this category, and the case demonstrates that travel time, particularly between jobs at clients’ premises, can amount to working time for which there would be an entitlement to payment.
Ian Skuse is a Partner in Blake Morgan’s Aviation team (blakemorgan.co.uk) and is based in their London office. Ian was a Partner with Piper Smith Watton LLP, which merged with Blake Morgan LLP in August 2015.