Compensation for flight delay

Case no. 39/2015
Judgment delivered on 4 April 2016

Primera Air Scandinavia A/S
vs.
Laila Andersen
Emil Roth Mathiesen

On 28 June 2013, Laila Andersen and Emil Roth Mathiesen were due to depart by Primera Air from Billund Airport to Chania Airport on Crete. Due to a technical problem in two switches showing the position of the aircraft's flaps on the wings, the aircraft could not leave the ground. The air carrier was unable to charter a replacement aircraft, but the aircraft was repaired, and arrived at Chania 9 hours and 46 minutes later than scheduled.

The aircraft manufacturer, Boeing, had since December 2009 sent out a number of service bulletins informing the air carriers that several carriers had reported about defects in the flap switches that show the position of the flaps on the rear of the wings due to penetration of de-icing fluid, among other things. Boeing had also refused to replace the original switches by switches of a new design that had better sealing. In January 2010, Primera Air had assessed Boeing's recommendations and had decided, based on previous experience with the switches, not to follow Boeing's proposed remedial action.

According to an EU Regulation of 2004, air passengers are entitled to a specified financial compensation if a flight is cancelled. According to the case law of the Court of Justice of the European Union, passengers are also entitled to compensation under the mentioned rules, if they arrive at their final destination three hours or more after the time of arrival originally scheduled by the air carrier. However, according to the Regulation, the right to compensation does not apply if the flight was cancelled or delayed due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The Regulation does not define what is meant by "extraordinary circumstances"; however, it is stated in the preamble to the Regulation that such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.

The Supreme Court found that the technical problem could not be regarded as an "extraordinary circumstance", due to the fact alone that this was not an unexpected safety shortcoming, cf. the preamble. Under these circumstances, Primera Air was not relieved of its obligation to pay compensation to the passengers.

The Supreme Court thus affirmed the judgment of the High Court.