The Extraordinary Circumstances Defence in Regulation (EC) 261/2004

Abstract

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This Article explores the main features of the ‘extraordinary circumstances’ defence in Regulation 261/2004. The Regulation, as interpreted by the Court of Justice of the European Union (CJEU), grants air passengers a right to a standardized, lump-sum compensation in cases of denied boarding, cancellation, and long delay at arrival. However, in the two last situations, air carriers may exonerate from paying such compensation if they have been caused by ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’. The present study systematises the CJEU’s case-law on the defence while analysing three issues. First, the notion of extraordinary circumstances, constructed around two cumulative criteria – they must stem from an event which is not inherent in the normal exercise of the activity of the air carrier concerned, and be beyond its actual control. Yet recently a distinction between events ‘internal’ to the operating air carrier and those ‘external’ has gained importance. The second issue is causation between the disruptive event and the cancellation or delay. Basically, the causal link must be ‘direct’, but it may be established with regard to knock-on effects as well. Finally, the third aspect is the interpretation of the unavoidability even if all reasonable measures were taken, which is extensive on two limbs. The carrier will have to prove that it actually took measures for preventing as much as possible the event from resulting in a cancellation or long delay, and to this effect it must deploy all its resources – without making ‘intolerable sacrifices’ with respect to its capacities.