Flight compensation despite ATC restrictions due to system failure – New ruling from the Eastern High Court

The airline has an obligation to check with other airlines for availability if the airline itself cannot depart on time due to ATC restrictions on the previous route.

Today, lawyer Eva Persson has won a landmark case at the Eastern High Court.

The airline won the case in the district court, but in the High Court, the passengers were successful in their claim for flight compensation.

The case concerns a delay of 5 hours and 48 minutes on the Malaga-Copenhagen route. The delay was a consequence of a delay that occurred in the morning when using the same flight.

The aircraft in question had three flights/rotations on the same day: Malaga-Newcastle, Newcastle-Malaga and Malaga-Copenhagen.

The delay on the first rotation (Malaga-Newcastle) was due to a system failure at the French air traffic control which resulted in so-called “ATC restrictions” (“ATC” stands for “air traffic control” and refers to such restrictions imposed on the airline by the control tower at the airport).

During the case, the Eastern High Court ruled that such (documented) ATC restrictions are an “extraordinary circumstance” within the meaning of the Aviation Regulation. The restrictions applied to all flights through French airspace and also affected international flights departing and arriving outside France.

However, the Eastern High Court also ruled that the airline had not documented that the delay on the later flight (Malaga-Copenhagen) could not have been avoided or minimized, even though all reasonable measures had actually been taken by the airline.

Indeed, the airline should have realized – already in the morning when the delay on the first rotation (Malaga-Newcastle) occurred – that this delay would also affect later routes with the same aircraft.

During the proceedings, it was documented that (almost) all departures from Malaga were delayed that day. However, it was not documented by the airline that among the other departures from Malaga, there were no flights with only a minor delay for which rebooking could have been a real alternative.