What you need to know about the Primera judgments

On 4 April 2016, the Supreme Court of Denmark handed down its judgments in the two remaining cases between Primera Air Scandinavia A/S and Laila Andersen and Emil Roth Mathiesen (the Andersen Mathiesen-case) and Primera Air Scandinavia A/S and Lene Davidsen et. al (the Davidsen-case with a total of 10 passengers).

The cases were decided by seven judges and have already been reported in the Danish national media as landmark decisions for flight passengers which make it completely impossible for technical problems to qualify as extraordinary circumstances under Regulation 261 / 2004. However, in our view, this is not a correct understanding of the judgments.

Sure enough, the two cases pose as landmark decisions for all Danish cases regarding Regulation 261 / 2004 when it comes to delays or cancellations due to technical errors. But it seems as if the media primarily has focused on the judgment in the Andersen Mathiesen-case. As far as the Davidsen-case goes, the judgment states that – although the scope for technical errors has been narrowed down considerably – it is not completely impossible for a technical problem to qualify as an extraordinary circumstance. However, this does not make a great headline in consumer-friendly media.

The facts of the Primera cases

The Andersen Mathiesen-case concerned a flight from Billund Airport in Denmark to Chania Airport in Crete. Just before take-off the aircraft experienced a technical error which was reported by the aircraft’s PSEU-system (Proximity Switch Electronic Unit). The fault was in the two switches that are linked to control the position of the aircraft’s wing flaps. Due to this problem, the passengers were delayed for 9 hours and 46 minutes and claimed compensation under Regulation 261 / 2004.

The Davidsen-case concerned a flight from Copenhagen Airport in Denmark to Varna Airport in Bulgaria. However, it was discovered that there was a leak in the aircraft’s fuel tank cover due to a crack in the intermediary layer. Because of this problem, the passengers were delayed for 10 hours and 58 minutes and claimed compensation under Regulation 261 / 2004.

Both cases revolve around a determining question: To what extent and under which circumstances may technical problems relating to an aircraft be considered as extraordinary circumstances in the meaning of Regulation 261 / 2004?

Air carriers should expect to experience unexpected technical problems

As you might recall, in our newsletter from September 2015 regarding the Van Der Lans-case we stated that air carriers should expect to experience unexpected technical problems. This stance is also adopted by the Supreme Court in both the Andersen Mathiesen-case and the Davidsen-case.

In both cases, the Supreme Court found that the technical errors did not constitute extraordinary circumstances. Thus, both the CJEU and the Supreme Court state that air carriers should – in connection with their normal activity – prepare to be confronted with unexpected technical problems. This is mainly reasoned on the basis of the fact that air carriers should discover these errors by regular maintenance checks.

Thus, the reasoning in the Danish judgments is pretty much identical to the one in the Van Der Lans-case.

Hidden defects and similar should however still not be expected

As also seen in the Van Der Lans-judgment, the two Danish judgments state that certain technical problems may constitute extraordinary circumstances. This is mainly elaborated in the Davidsen-case. As examples, this includes hidden manufacture defects which impact flight safety or damage due to sabotage or terrorism. Also, the Supreme Court underlines that a substantial amount of evidence needs to be provided in order to prove/document the complexity of the technical issue and how it lies outside the control of the air carrier.

Therefore, when flights are delayed or cancelled due to technical problems, air carriers must carefully look into the reason behind the technical problem. Ordinary wear and tear that gives rise to technical problems is clearly not extraordinary. Even very complicated, technical problems that seldom and suddenly occur unexpectedly should in general not be considered extraordinary.

“The one-aircraft test” is reused in the Danish judgment

The Danish judgments refer to the question as to whether a problem only affects one particular aircraft, or whether the problem also affects other aircrafts of the same kind. This test originated from the ruling in the Van Der Lans-case. Thus, a technical problem may be considered equal to a technical manufacture defect and thus be considered as an extraordinary circumstance, provided it impacts flight safety.

However, it still remains to be seen how the court would look at a technical problem that is extremely rare, e.g. a problem that has never been experienced before and which may – in that respect – be considered equal to a technical manufacture defect.

The Technical Problems Were Known to Boeing

When interpreting the judgments, it should also be held in mind that the technical problems in the two cases respectively concerned a leakage in the fuel tank cover and aircraft switches linked to the positioning of the aircraft’s wing flaps. These aircraft parts were known for Boeing to cause technical problems.

In the Andersen Mathiesen-case, Boeing had notified Primera of the issue. This fact was in itself decisive for the negative outcome of the case.

However, in the Davidsen-case, Boeing had not notified Primera of the issue even though it had been known for four years prior to the flight. The problem was discovered during ordinary pre-flight inspection. Thus, the Supreme Court found that the problem was under the control of the air carrier.

Thus, the technical issues in both judgments were pretty common and had been known for years.

Although not mentioned as legal criteria in the judgment, it may also be important to note that the passengers in both cases were delayed for roughly 10-11 hours.

What now?

The wording and overall essence of the Van Der Lans-judgment was reused by the Danish Supreme Court. So – per se – nothing really “new” is brought to the table. On the contrary, the technical problems in the two cases were very common and the delays suffered were quite long.

Thus, the Danish courts recognize that technical errors can constitute extraordinary circumstances pursuant to Regulation 261 / 2004. It depends on the actual facts in casu and – more importantly – on the available evidence.

IUNO suggests that all air carriers carefully go through all pending cases concerning delays and cancellations due to technical problems. When going through this process we advise the air carriers to decide whether there are cases that may now already be settled. Air carriers should also look very carefully into possible options to file for recourse against suppliers of faulty aircraft parts, maintenance companies or similar, as such parties should in some circumstances and depending on applicable contract provisions hold the air carrier harmless for the resulting claims under Regulation 261 / 2004.

Going forward, air carriers should also consider including legal language in supplier contracts that serve to secure recourse for 261 claims resulting from failing aircraft parts / services.

IUNO will now process all pending cases at our end in order to assess whether they are possible to further defend. In each case, we will let the relevant air carrier know whether they should go for the option of settlement.