Air passenger rights: Can a technical failure be considered as an extraordinary circumstance exempting the air carrier from its obligation to compensate passengers under Regulation (EC) No 261/2004? Emmanuelle Hober Zaffran1 1. Introduction. 2. Principle: technical problems are not considered as extraordinary circumstances. 3. Concept of “extraordinary circumstance”: technical failures caused by a hidden design defect revealed by the manufacturer after cancellation of the flight. 4. Concept of “extraordinary circumstance” and “reasonable measures” expected : detection of hidden defect in the design where the engine manufacturer had informed the air carrier of the existence of a defect of that kind several months before the flight concerned. This paper discusses the interpretation of Regulation (EC) No 261/2004 by the Court of Justice of the European Union (CJEU) regarding compensation for air passengers in cases of flight cancellations and delays. Specifically, it addresses whether technical failures can be considered “extraordinary circumstances” that exempt airlines from compensating passengers. Generally, technical problems are not deemed extraordinary unless they are beyond the airline’s control and not inherent to its normal operations. However, hidden design defects revealed by manufacturers can be considered extraordinary circumstances. The text highlights recent CJEU rulings of 13 June (C385/23 and C-411/23) that confirm this interpretation, emphasizing that airlines must take all reasonable measures to mitigate such issues. DOI 10.60559/ijtthl2024-015 1Attorney at law, founding partner of EHZ Avocats, emmanuelle@ehz-avocats.com.
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