Compensation for flight delay

Case no. 41/2015
Judgment delivered on 4 April 2016

Primera Air Scandinavia A/S
vs.
Lene Davidsen
Preben Francois Davidsen
Heidi Klarskov Berg
Carsten Berg
Sofie Klarskov Berg
Lucas Klarskov Berg
Camilla Petersen
Rasmus Kjærgaard Petersen
Sofie Kjærgaard Petersen
Frederik Kjærgaard Petersen

The 10 passengers were due to depart by air from Copenhagen Airport on 22 August 2013 at 8:00 am. However, the night before, a fuel leak was found on the aircraft scheduled to fly the route, and as a result, it was decided to ground it. The air carrier decided to let another of its aircraft take over the flight, and the replacement aircraft landed in Varna Airport 10 hours and 58 minutes later than the scheduled arrival time.

The delay was caused by a technical problem in the form of a leak by the fuel tank cover underneath the wing, which caused a fuel leak. This was due to a faulty design causing a general vulnerability to moisture penetration. The aircraft manufacturer, Boeing, had been aware of this problem since 2009; however, it could not be considered that Boeing had informed the air carrier of the risk of this fault occurring before the flight in question in August 2013. Also, the aviation authorities had not demanded that the fuel tank covers be replaced.

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.

In a series of judgments, the Court of Justice has indicated when a cancellation or delay due to a technical problem in an aircraft may be regarded as being covered by the concept of "extraordinary circumstances". Referring to the Court of Justice's case law, the Supreme Court held more generally that as the predominant general rule, no "extraordinary circumstances" exist if a cancellation or delay is caused by a technical problem in the aircraft. According to the Court of Justice's case law, a "hidden manufacturing defect" may constitute "extraordinary circumstances". However, the application of this exception must be regarded as being quite limited.

In this case, the Supreme Court held, referring to the Court of Justice's case law, that the technical problem must be regarded as having occurred in the normal exercise of Primera Air's activity, and that it was not beyond Primera Air's actual control. It was not a hidden manufacturing defect within the meaning conferred to this concept by the Court of Justice. Consequently, the delay could not be ascribed to "extraordinary circumstances", and Primera Air was thus not relieved of its obligation to pay compensation to the passengers.

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