COMPENSATION OF AIR PASSENGERS

Claim supporting document

This document states the Airlines’ obligations under Regulation (EC) No 261/2004 on 11 February 2004,
granting to air passengers a right to compensation in the event of denied boarding and of cancellation
or delayed flights (the “Regulation”).

Please consider this document as a help to understand our position about EU regulation dealing with the
attached claim and more generally with all topics mentioned here.

This document will also rule our behaviour/reaction regarding the feedback you will provide
to our initial claims. It means if your feedbacks do not match with these explanations and
legal precisions we described here and are the clear application of the legal environment in
Europe, we will not agree with it and will automatically lead us all to judicial stage.
 Compensation of air passengers
Claim Supporting document

Table of contents

A. SCOPE OF THE REGULATION 3

B. ELIGIBILITY TO RIGHTS OF COMPENSATION 3
1. IN CASE OF DENIED BOARDING 3
a. Notion of denied boarding 3
b. Cases of denied boarding and related compensation 4
2. IN CASE OF CANCELLATION 4
a. Notion of cancellation 4
b. Compensation due in case of cancellation 4
3. IN CASE OF DELAYED FLIGHT 5
a. Notion of delayed flight 5
b. Compensation due in case of delayed flight 5
C. CALCULATION OF THE COMPENSATION TOTAL AMOUNT 6
1. THE MAIN COMPENSATION (ARTICLE 7) 6
a. Calculation of the main compensation amount 6
b. Determining elements for compensation 7
2. AMOUNT OF THE REIMBURSEMENT OF UNEXPECTED EXPENDITURES (ARTICLES 8 AND 9) 8
3. AMOUNT OF THE COMPLEMENTARY COMPENSATION (ARTICLE 12) 10
D. CONCERNING THE EXTRAORDINARY CIRCUMSTANCES 10
1. NOTION OF EXTRAORDINARY CIRCUMSTANCES 10
2. CONDITIONS FOR APPLICATION OF EXTRAORDINARY CIRCUMSTANCES 11
3. PROOF OF EXTRAORDINARY CIRCUMSTANCES 11
a. The event shall be constitutive of extraordinary circumstances 11
b. The event could not have been avoided even if all reasonable measures had been taken 12
A. CONCERNING THE VALIDITY OF THE POWER OF ATTORNEY SIGNED BY PASSENGERS 14
1. THE POWER OF ATTORNEY IS SUFFICIENT AND HAS BEEN PROPERLY COMMUNICATED 14
2. CONCERNING THE VALIDITY OF THE POWER OF ATTORNEY CONTRACT 14
3. CONCERNING THE VALIDITY OF THE ELECTRONIC SIGNATURE 14
B. CONCERNING POWER OF ATTORNEY CONTENT 14
1. PAYMENT SHALL BE MADE TO CLAIM ASSISTANCE 14
2. NO PAYMENT BY VOUCHER 15
3. PAYMENT SHALL BE DONE BY BANK TRANSFER OR CHECK 15
C. CONCERNING THE VALIDITY OF THE CLAIM 15
1. NECESSARY DOCUMENTS FOR THE TREATMENT OF THE CLAIM 15
2. FORM OF THE LETTER OF COMPLAINT FROM CLAIM ASSISTANCE COMPANY 15
3. NO PRESCRIPTION APPLICABLE TO THIS COMPLAINT 15

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I. Concerning the passengers’ right to

compensation
Regulation No 261/2004 of 11 February 2004 (the “Regulation”) aims to strengthen the rights of passengers and to allow
them compensation in case of denied boarding cancellation or delayed flight.

A. SCOPE OF THE REGULATION

Under Article 3 of the Regulation, same Regulation applies to any reservation of a direct or non-direct flight, that is, to any
air carriage contract whenever the passengers are departing from an airport located in the territory of a Member State and
when the passengers are departing from a third party country to an airport situated in the territory of a member state, as
long as the air carrier is a community carrier (as defined in Article 2 of the Regulation).

It is reminded that, according to Article 2 of the Regulation, “community carrier” means an “air carrier with a valid operating
licence granted by a Member State in accordance with the provisions of Council Regulation (EEC) No2407/92 of 23 July
1992 on licensing of air carriers”.

It is also specified that the Regulation shall only apply under the following conditions:
- Passengers have a confirmed reservation on the flight concerned;
- Passengers has presented themselves for check-in as stipulated and at the time indicated in advance and in
writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no
time is indicated, not later than 45 minutes before the published departure time.
It is also common practice that a reservation can be proved by any means, notably though a copy of invoice, boarding
pass or confirmation of this reservation regardless if the document could be printed or electronic.

B. ELIGIBILITY TO RIGHTS OF COMPENSATION

Passengers are eligible to compensation in case of denied boarding (1), cancellation (2) or delayed flight (3).

1. In case of denied boarding

a. Notion of denied boarding

First, let us recall the two following definitions provided by the Regulation (article 2):
A denied boarding “means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the
conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety
or security, or inadequate travel documentation”;

Under article 2(k), a volunteer “means a person who has presented himself for boarding under the conditions laid down in Article 3(2)
and responds positively to the air carrier's call for passengers prepared to surrender their reservation in exchange for benefits”.

As an extension of these two definitions, the European Court of Justice (ECJ) has ruled that the concept of denied
boarding must be interpreted “as relating not only to cases where boarding is denied because of overbooking but also to
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those where boarding is denied on other grounds, such as operational reasons” .
The ECJ also concluded that “it cannot be accepted that an air carrier may, relying on the interest of other passengers in being
transported within a reasonable time, increase considerably the situations in which it would have reasonable grounds for denying a
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passenger boarding” .

1 Case C-22/11 Finnair [2012] published in the electronic Reports of Cases, paragraph 26.
2 Ibid., paragraph 34.

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In accordance with ECJ case law, “the concept of ‘denied boarding’ also includes a situation where, in the context of a single contract of
carriage including several reservations on immediately connecting flights and a single check-in, an air carrier denies boarding to some
passengers on the ground that the first flight included in their reservation has been subject to a delay attributable to that same carrier and
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the latter mistakenly expected those passengers not to arrive in time to board the second flight” .

Under these circumstances, it is clear that hypothesis of denied boarding are not limited to the situations of overbooking
and can be justified only by reasons attributable to the passengers.

b. Cases of denied boarding and related compensation

There are two hypotheses of denied boarding.

ü The “voluntary” denied boarding
Denied boarding is considered “voluntary” when an operating air carrier reasonably expects to deny boarding on a flight to
some passengers and call for volunteers to surrender their reservations in exchange for benefits.
Those passengers called “volunteers” benefits nonetheless of the right to reimbursement or re-routing as provided by
article 8 of the Regulation.
ü The “involuntary” denied boarding
If boarding is denied to passengers against their will, it constitutes an “involuntary” denied boarding. Those passengers
called “no volunteer” benefits under the Regulation:
- A right to compensation as provided by article 7;
- A right to reimbursement or re-routing as provided by article 8;
- A right to care as provided by article 9.

2. In case of cancellation

a. Notion of cancellation

The definition provided by article 2(l) of the Regulation should first be reminded:
A cancellation “means the non-operation of a flight which was previously planned and on which at least one place was reserved”.

Under this article, the ECJ has ruled as follows:

In Sturgeon case, that “it is possible, as a rule, to conclude that there is a cancellation where the delayed flight for which the booking was
made is ‘rolled over’ onto another flight, that is to say, where the planning for the original flight is abandoned and the passengers from that
flight join passengers on a flight which was also planned – but independently of the flight for which the passengers so transferred had
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made their bookings”.

Furthermore, as an extension of this approach, it has been then stated in 2010 that the only important way is “the individual situation of
each passenger so transported, that is to say, the fact that, in relation to the passenger in question, the original planning of the flight has
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been abandoned” .

Consequently, the notion of “cancellation” “ does not refer only to the situation in which the aeroplane in question fails to take off at all, but
also covers the case in which that aeroplane took off but, for whatever reason, was subsequently forced to return to the airport of
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departure where the passengers of that aeroplane were transferred onto other flights” .

b. Compensation due in case of cancellation

Passengers on a flight that is cancelled have under the Regulation:

- A right to compensation as provided by article 7;
- A right to reimbursement or re-routing as provided by article 8;

3 Case C-321/11 [2012] Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor published in the electronic Reports of Cases,

paragraph 36.
4 Joined cases C-402/07 and C-432/07 [2009] Sturgeon e.a. ECR I-10923, paragraph 36.
5 Case C-83/10 [2011] Sousa Rodriguez e.a. ECR I-9469, paragraph 31.
6 Ibid., paragraph 35.

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- A right to care as provided by article 9(1)(a), article 9(2) and – in case of re-routing the next day – article 9(1)(b)
and (c).
However, we recognise the applicability of provisions under article 5(1)(c) of the Regulation, which means the right to
compensation as provided by article 7 is not applicable when passengers are informed:
“(i) at least two weeks before the scheduled time of departure; or

(ii) between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no
more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled
time of arrival; or

(iii) less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one
hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.”

3. In case of delayed flight

a. Notion of delayed flight

In the absence of a definition in the Regulation, the ECJ developed the following considerations:
The ECJ has confirmed that “a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as
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cancelled where the flight is operated in accordance with the air carrier’s original planning” .

Furthermore, the ECJ set out in 2009 an identical treatment in case of cancelled flight or delayed flight, thus: that “passengers
whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights
are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of
a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after
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the arrival time originally scheduled by the air carrier.” (Emphasis added).

In case of connecting flight the compensation is payable, to a passenger on directly connecting flights who has been
delayed at departure for a period below the limits specified in Article 6 of that regulation, but has arrived at the final
destination at least three hours later than the scheduled arrival time.

The concept of "connecting flight was clarified by the Court of Justice in the case Air France/Folkers of 23 february 2013
case number C-11/11.
The court consider that " the concept of ‘final destination’ is defined in Article 2(h) of Regulation No 261/2004 as being the destination on
the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight.

Moreover, this recognition has been confirmed by the ECJ in 2012 in terms of the Montreal Convention, or in terms of the
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principles of legal certainty and proportionality.

b. Compensation due in case of delayed flight

Based on the Regulation and the abovementioned Sturgeon case, passengers have, when they reach their final
destination three hours or more after the scheduled arrival time:
- A right to compensation as provided by article 7;
- A right to reimbursement or re-routing as provided – when the delay is at least five hours – by article 8(1)(a);
- A right to care as provided by article 9(1)(a), article 9(2) and – in the event of a re-routing the next day – article
9(1)(b) and (c).

7 C-402/07 and C-432/07 [2009] Sturgeon, op. cit., paragraph 39.

8 Ibid., paragraph 69.
9 Joined cases C-581/10 and C-629/10 [2012] Nelson e.a published in the electronic Reports of Cases, paragraphs 60, 69 and

84.

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C. CALCULATION OF THE COMPENSATION TOTAL AMOUNT

The total amount of compensation is obtained by addition of the main compensation as provided by article 7 (1) plus the
amount of expenditures not planned (2). The passenger reserves the right to request the payment of any additional
compensation for the damage suffered (3).

1. The main compensation (article 7)

a. Calculation of the main compensation amount

ü In case of denied boarding (article 4)

In case of denied boarding, the operating air carrier is liable to compensate “immediately” no volunteer passengers, which
means that main compensation is due to air passengers regardless of any minimum delay in arrival at final destination.

Thus, the calculation method is the following under articles 4 and 7 of the Regulation:

Flight distance Without re-routing With re-routing: delay in arrival at final destination

- 2h 2 / 3h 3 / 4h + 4h

- 1 500 km 250 € 125 € 250 € 250 € 250 €

Intra-EU flights
+ 1 500 km 400 € 200 € 200 € 400 € 400 €

- 1 500 km 250 € 125 € 250 € 250 € 250 €

EU / Third countries
1 500 / 3 500 km 400 € 200 € 200 € 400 € 400 €
flights

+ 3 500 km 600 € 300 € 300 € 300 € 600 €

ü In case of cancellation (article 5)

In case of cancelled flight, it is common practice that the operating air carrier compensates passengers without any kind of
consideration for a minimum delay in arrival at the final destination.
Thus, the calculation method is the following under articles 5 and 7 of the Regulation:

Flight distance Without re-routing With re-routing: delay in arrival at final destination

- 2h 2 / 3h 3 / 4h + 4h

- 1 500 km 250 € 125 € 250 € 250 € 250 €

Intra-EU flights
+ 1 500 km 400 € 200 € 200 € 400 € 400 €

- 1 500 km 250 € 125 € 250 € 250 € 250 €

EU / Third countries
1 500 / 3 500 km 400 € 200 € 200 € 400 € 400 €
flights

+ 3 500 km 600 € 300 € 300 € 300 € 600 €

ü In case of delay (Sturgeon case)

In case of delayed flight, ECJ ruled that operating air carrier is liable to passenger compensation from “a loss of time equal to or in excess
of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air

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carrier” (emphasis added). However, we acknowledge the clarification brought in the same case, under application of Article 7(2) of the
Regulation: “the compensation payable to a passenger whose flight is delayed, who reaches his final destination three hours or more after
the arrival time originally scheduled, may be reduced by 50%, in accordance with Article 7(2)(c) of Regulation No 261/2004, where the
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delay is – in the case of a flight not falling under points (a) or (b) of Article 7(2) – less than four hours.” . Therefore, the compensation
can be reduced by 50% when the air carrier offers re-routing to the passengers and under the conditions set out in article 7(2).

Thus, the calculation method is the following under Sturgeon case and article 7 of the Regulation:

Flight distance Without re-routing With re-routing: delay in arrival at final destination

- 2h 2 / 3h 3 / 4h + 4h

- 1 500 km 250 0€ 0€ 250 € 250 €

Intra-EU flights
+ 1 500 km 400 0€ 0€ 400 € 400 €

- 1 500 km 250 0€ 0€ 250 € 250 €

EU / Third countries
1 500 / 3 500 km 400 0€ 0€ 400 € 400 €
flights

+ 3 500 km 600 0€ 0€ 300 € 600 €

b. Determining elements for compensation

ü Destination to be taken into account

In this context, let us remind you the definition provided by article 2(h) of the Regulation:
A final destination “means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the
destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is
respected”.

This “final destination” corresponds in practice to “the destination on the ticket presented at the check-in counter or, in the
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case of directly connecting flights, the destination of the last flight.” .

ü Distance to be taken into account

It is important to specify that the calculation of the flight obeys to the two following conditions under article 7(1) and (4):
(i) “the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger's arrival after the
scheduled time”,

(ii) distances “shall be measured by the great circle track method”.

ü Times to be taken into account

About this issue, the ECJ has stated that “during a flight passengers remain confined in an enclosed space, under the instructions and
control of the air carrier, in which, for technical and safety reasons, their possibilities of communicating with the outside world are
considerably restricted. In such circumstances, passengers are unable to carry on, without interruption, their personal, domestic, social or
13
business activities. It is only once the flight has ended that they are able to resume their normal activities” .

Consequently, an actual arrival time “must be understood, in the context of Regulation No 261/2004, as corresponding to
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the time at which the situation described in paragraph 20 of the present judgment comes to an end” , which means a
flight is ended at the moment when passengers are able to resume their normal activities.

10 C-402/07 and C-432/07 Sturgeon [2009] op. cit., paragraph 69.

11 Ibid., paragraph 63 ; see also C-581/10 and C-629/10 Nelson e.a. [2012] op. cit., paragraph 78.
12 Case C-173/07 Emirates Airlines [2008] ECR I-5237, paragraph. 33.
13 Case C-452/13 Germanwings [2014] Not yet published, paragraph 20.
14 Ibid., paragraph 22.

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Subsequently, about the issue relating to determine “in practice” the moment when passengers are able to resume their
normal activities, the assumption made by the EU judge is:
“the situation of passengers on a flight does not change substantially when their aircraft touches down on the runway at the destination
airport, when that aircraft reaches its parking position and the parking brakes are engaged or when the chocks are applied, as the
15
passengers continue to be subject, in the enclosed space in which they are sitting, to various constraints” .

Indeed, “it is only when the passengers are permitted to leave the aircraft and the order is given to that effect to open the doors of the
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aircraft that the passengers may in principle resume their normal activities without being subject to those constraints”» .

Consequently, in the context of main compensation, “the concept of ‘arrival time’, which is used to determine the length of
the delay to which passengers on a flight have been subject, corresponds to the time at which at least one of the doors of
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the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft”
(emphasis added).
Therefore, the ECJ is very clear on this issue, so that any other time could not be admitted.

ü Retained times by Claim Assistance

The claim indicates for each flight:
- On the one hand, departure and arrival scheduled times;
- On the other hand, departure and arrival actual times.
Those times are recognized from the following elements:
- Invoice, boarding pass or confirmation of reservation;
- Allegations from our clients;
- Flights programs;
- Databases.
Therefore, if times are challenged, it is up to the operating air carrier to prove what it asserts by communication of an
extract of fight concerned log board. If there is no proof of that, we will believe that our times are correct and correspond to
reality.

ü Correspondences to be taken into account

The ECJ established in 2011 that “in the case of directly connecting flights, it is only the delay beyond the scheduled time of arrival at the
final destination, understood as the destination of the last flight taken by the passenger concerned, which is relevant for the purposes of
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the fixed compensation under Article 7 of Regulation No 261/2004” .

In addition, concerning conditions from article 6 of the Regulation, ECJ reminded that such article “refers to the delay to a flight beyond its
scheduled time of departure, seeks, according to its own terms, only to establish the conditions giving entitlement to the measures of
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assistance and care provided for in Articles 8 and 9 of that regulation respectively” .

It is therefore obvious that “the fixed compensation to which a passenger is entitled under Article 7 of Regulation No 261/2004, when his
flight reaches the final destination three hours or more after the scheduled arrival time, is not dependent on the conditions laid down in
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Article 6 of that regulation being met” .

Consequently “the fact that a flight […] has not been delayed, as regards the scheduled departure time, beyond the limits set out in
Article 6 of Regulation No 261/2004, cannot affect the obligation on air carriers to compensate the passengers of such a flight, provided
that the arrival of that flight at the final destination has been delayed by three hours or more” .
21

2. Amount of the reimbursement of unexpected expenditures (articles 8 and 9)

Applicability of articles 8 and 9 to different situations of delay, cancellation or denied boarding is reminded above in
paragraph “Eligibility to compensation rights”.

15 Ibid., paragraph 23.

16 Ibid., paragraph 24.
17 Ibid., paragraph 25.
18 Case C-11/11 Folkerts [2013] published in the electronic Reports of Cases, paragraph 35.
19 Ibid., paragraph 36.
20 Ibid., paragraph 37.
21 Ibid., paragraph 38.

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As a reminder, when a reference is made to the right to reimbursement or re-routing as provided by article 8 of the
Regulation:
Synthesis
Passengers have the choice between:
(i) Ticket refund and immediate return
flight
(ii) Immediate re-routing
(iii) Re-routing at a later date
If passengers do not land at the initial
arrival airport, the operating air carrier
shall bear the costs of transport from
actual arrival airport to initial arrival
airport.
In addition, when a reference is made to the right to care as provided by article 9 of the Regulation:
Synthesis
The operating air carrier shall bear the
costs of the passenger’s expenditures
for drink and food during all waiting
time – in an airport – not planned by the
reservation.
The operating air carrier shall bear the
costs of passenger’s expenditures for
accommodation when the two following
cases occur:
(i) during all waiting night – in an airport –
not planned in the reservation
(ii) during all waiting night – at place of
stay – not planned in the reservation
The operating air carrier shall pay
passenger’s expenditures for
transportation between airport and
accommodation in the event of all
waiting night not planned in the
reservation.
The operating air carrier shall pay
passenger’s expenditures for phone
and/or internet communication.
ü Period of care issues
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Details of the provision
“1. Where reference is made to this Article, passengers shall be offered the choice
between:
(a) - reimbursement within seven days, by the means provided for in Article 7(3), of
the full cost of the ticket at the price at which it was bought, for the part or parts of the
journey not made, and for the part or parts already made if the flight is no longer
serving any purpose in relation to the passenger's original travel plan, together with,
when relevant,
- a return flight to the first point of departure, at the earliest opportunity;
(b) re-routing, under comparable transport conditions, to their final destination at the
earliest opportunity; or (c) re-routing, under comparable transport conditions, to their
final destination at a later date at the passenger's convenience, subject to availability
of seats.
2. Paragraph 1(a) shall also apply to passengers whose flights form part of a
package, except for the right to reimbursement where such right arises under
Directive 90/314/EEC.”
“3. When, in the case where a town, city or region is served by several airports, an
operating air carrier offers a passenger a flight to an airport alternative to that for
which the booking was made, the operating air carrier shall bear the cost of
transferring the passenger from that alternative airport either to that for which the
booking was made, or to another close-by destination agreed with the passenger.”
Details of the provision
“1. Where reference is made to this Article, passengers shall be offered free of
charge:
(a) meals and refreshments in a reasonable relation to the waiting time;”
“1. Where reference is made to this Article, passengers shall be offered free of
charge:
(b) hotel accommodation in cases
— where a stay of one or more nights becomes necessary, or
— where a stay additional to that intended by the passenger becomes
necessary;”
“1. Where reference is made to this Article, passengers shall be offered free of
charge:
c) transport between the airport and place of accommodation (hotel or other).”
“2. In addition, passengers shall be offered free of charge two telephone calls, telex
or fax messages, or e-mails.”
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The ECJ has ruled that “all the obligations to provide care to passengers whose flight is cancelled are imposed, in their entirety, on the air
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carrier for the whole period during which the passengers concerned must await their re-routing” .

Regardless of the matter, right to reimbursement or re-routing or right to care, respectively articles 8 and 9 of the Regulation, the ECJ
considers that “when a carrier fails to fulfil its obligations under Article 8 and Article 9 of Regulation No 261/2004, air passengers are
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justified in claiming a right to compensation on the basis of the factors set out in those articles” (emphasis added).

Concerning the right to care, in particular, ECJ had the occasion to precise that operating air carrier is liable during “the shortcomings of
24.
the air carrier”

3. Amount of the complementary compensation (article 12)

Article 12 of the Regulation provides that “this Regulation shall apply without prejudice to a passenger's rights to further compensation.
The compensation granted under this Regulation may be deducted from such compensation”.

Consequently, the Regulation provides that passengers are eligible to a complementary compensation for remedies and
damages, to compensate any suffered and proved damage: personnel, aesthetic (such as scars...), loss of enjoyment of
life, moral and/or material.
Moreover, the ECJ had developed the following considerations based on Montréal convention: “The standardised and immediate
assistance and care measures do not themselves prevent the passengers concerned, should the same delay also cause them damage
conferring entitlement to compensation, from being able to bring in addition actions to redress that damage under the conditions laid down
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by the Montreal Convention” .

The passenger reserves the right to request the payment of any complementary compensation for the damage suffered by
the passenger.

D. CONCERNING THE EXTRAORDINARY CIRCUMSTANCES

Article 5(3) of the Regulation provides:
“An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is
caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

In the absence of further details in the Regulation, the ECJ has provided a definition (1), conditions of application (2) and a
burden of proof (3).

1. Notion of extraordinary circumstances

EU judge has started from the following premise:

“it should be noted that the term ‘extraordinary circumstances’ is not defined in Article 2 of Regulation No 261/2004 or in the other
provisions of that regulation, even though a non-exhaustive list of those circumstances can be derived from recitals 14 and 15 in the
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preamble to the regulation” .

Therefore, the ECJ follows that line of reasoning in order to give its own definition:
“In accordance with everyday language, the words ‘extraordinary circumstances’ literally refer to circumstances which are ‘out of the
ordinary’. In the context of air transport, they refer to an event that is not inherent in the normal exercise of the activity of the carrier
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concerned and is beyond the actual control of that carrier on account of its nature or origin (Wallentin-Hermann, paragraph 23) . In other
words, as the Advocate General noted in point 34 of his Opinion, they relate to all circumstances which are beyond the control of the air
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carrier, whatever the nature of those circumstances or their gravity» (emphasis added).

22 Case C-12/11 McDonagh [2013] published in the electronic Reports of Cases, paragraph 41.
23 C-83/10 Sousa Rodriguez e.a. [2011], op. cit., paragraph 44.
24 C-12/11 McDonagh [2013] op. cit. paragraph 51.
25 Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 47.
26 Case C-12/11 McDonagh [2013] published in the electronic Reports of Cases, paragraph 27.
27 Case C-549/07 Wallentin-Hermann [2008] ECR I-11061, paragraph 23.
28 C-12/11 McDonagh [2013] op. cit., paragraph 29.

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2. Conditions for application of extraordinary circumstances

According to constant ECJ case law and provisions of the Regulation, the following should be remind as regards to the
demonstration of extraordinary circumstances that:
ü It only applies in case of cancellation, delay or “volunteer” denied boarding.
For example, it has been ruled to this end that: “in the event of ‘denied boarding’ owing to ‘extraordinary circumstances’ which could not
have been avoided even if all reasonable measures had been taken, an air carrier is exempted from its obligation to compensate
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passengers denied boarding against their will”.

ü It can only exempt the operating air carrier from payment of the main compensation provided by article 7 but
not for its right to reimbursement or re-routing and right to care from articles 8 and 9 of the Regulation.
It has been ruled to this end that: “as for the context of and the aims pursued by Article 5 of Regulation No 261/2004, which prescribes the
obligations of an air carrier in the event of cancellation of a flight, it must be noted, first, that when exceptional circumstances arise, Article
5(3) exempts the air carrier only from its obligation to pay compensation under Article 7 of that regulation. The European Union legislature
thus took the view that the obligation on the air carrier to provide care under Article 9 of that regulation is necessary whatever the event
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which has given rise to the cancellation of the flight” (emphasis added).

« Regulation No 261/2004 contains nothing that would allow the conclusion to be drawn that it recognises a separate category of
‘particularly extraordinary’ events, beyond ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation, which would lead to
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the air carrier being exempted from all its obligations, including those under Article 9 of the regulation» .

3. Proof of extraordinary circumstances

Article 5(3) of the Regulation provides that the burden of proof of existence of extraordinary circumstances relies on the
operating air carrier. Failing the air carrier to justify, by any material element, the existence of extraordinary circumstances,
no exemption can be invoked by the said air carrier.
Under Wallentin-Hermann case mentioned above and the provisions of the Regulation, it is the responsibility to the said
air carrier to prove cumulatively that:
(i) The occuring problem stems from events which constitute extraordinary circumstances (a);
(ii) The event could not have been avoided even if all reasonable measures had been taken (b).

a. The event shall be constitutive of extraordinary circumstances

According to ECJ case law, reminded above, are constitutive of extraordinary circumstances the event which, by its nature
or origin, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control.
The ECJ considers that a problem which is not inherent in the normal exercise of the activity of the air carrier is an act which has been
32
“caused by an act outside the category of normal airport services” .

In the Wallentin-Hermann case above mentioned, the ECJ gives examples of events which are not inherent in the normal
exercise of the activity of the air carrier concerned and are beyond its actual control:
« That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the
air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing
33
defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism ».

In those conditions, the ECJ have considered in the same case that “the frequency of the technical problems experienced by an air carrier
is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of
34
Regulation No 261/2004 can be concluded”.

In addition to unpredictability, it is established that technical problems the air carriers are facing in regular manner, even if
it is unexpected and unannounced, are inherent in the normal exercise of their activity.
In this context, it has been ruled that a breakdown “caused by the premature malfunction of certain components of an aircraft, constitutes
35
an unexpected event [but] remains intrinsically linked to the very complex operating system of the aircraft” .

29 Case C-22/11 Finnair [2012] published in the electronic Reports of Cases, paragraph 36.
30 Case C-12/11 McDonagh [2013] op. cit., paragraph 31.
31 Ibid., paragraph 30.
32 Case C-394/14 Siewert [2014] Not yet published, paragraph 19.
33 C-549/07 Wallentin-Hermann [2008] op. cit., paragraph 26.
34 Ibid., paragraph 36.

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In the same case, the ECJ considered that “the prevention of such a breakdown or the repairs occasioned by it, including the replacement
of a prematurely defective component, is not beyond the actual control of that carrier, since the latter is required to ensure the
36
maintenance and proper functioning of the aircraft it operates for the purposes of its business”.

In addition, it has also been ruled by some national courts that, unless it can be clearly demonstrated that the presence of snow in
Germany in March was unpredictable, this situation cannot be constitutive of extraordinary circumstances within the meaning of
37
Regulation .

In order to be able to characterise the existence of extraordinary circumstances, the air carrier shall thus prove by material
elements that the event is totally unannounced and not inherent to the normal exercise of its activity.
If the air carrier succeeds to demonstrate the existence of extraordinary circumstances, under the conditions mentioned
above, it will still have to prove that such extraordinary circumstances could not have been avoided even if all reasonable
measures had been taken, in order to claim exemption of liability.

b. The event could not have been avoided even if all reasonable measures had
been taken

This second condition arises from the direct and literal application of article 5(3) and paragraph 14 of the preamble of the
Regulation.
Applying those texts, the ECJ specifies that the air carrier shall “establish that, even if it had deployed all its resources in terms of staff or
equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the
light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted
from leading to the cancellation [or delay] of the flight.

Thus that “it must be observed that the Community legislature intended to confer exemption from the obligation to pay compensation to
passengers in the event of cancellation of flights not in respect of all extraordinary circumstances, but only in respect of those which could
38
not have been avoided even if all reasonable measures had been taken” .

The concept of “reasonable measures” referred to in the Regulation, is defined in the following terms in the Wallentin-Hermann case
mentioned above: “measures appropriate to the situation, that is to say by measures which, at the time those extraordinary circumstances
39
arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned” .

The operating air carrier shall thus demonstrate that it had implemented reasonable ways in terms of staff, material or
financial, at the time the extraordinary measure arrised.

This point has been supported by another case, in which the ECJ ruled that “the air carrier […] must reasonably, at the stage of
40
organising the flight, take account of the risk of delay connected to the possible occurrence of extraordinary circumstances” (emphasis
added).

Among the various reasonable measures to be taken by the air carrier, the ECJ has ruled in the same case that “to prevent any delay,
even insignificant, to which extraordinary circumstances have given rise inevitably leading to cancellation of the flight, the reasonable air
carrier must organise its resources in good time to provide for some reserve time, so as to be able, if possible, to operate that flight once
41
the extraordinary circumstances have come to an end”.

In the case mentioned above, the ECJ concluded: “the Court therefore established an individualised and flexible concept of reasonable
measures, leaving to the national court the task of assessing whether, in the circumstances of the particular case, the air carrier could be
42
regarded as having taken measures appropriate to the situation” (emphasis added).

In other words, after demonstrating the existence of extraordinary circumstances, the operating air carrier shall also
explain which reasonable measures it took to avoid disturbance of the flight concerned.

Any technical, operational and/or logistical alleged considerations may be verified by any court or by the competent
national enforcement body.

35
Case C-257/14 Van der Lans [2015] Not yet published, paragraph 41.
36
Ibid., paragraph 43
37
French Cour de cassation, 1st Civil Chamber, November 5, 2009, No 08-20385.
38 Case C-549/07 Wallentin-Hermann [2008] ECR I-11061, paragraph 39.
39
Ibid., paragraph 40.
40 Case C-294/10 Egl tis and Ratnieks [2011] ECR I-03983, paragraph 27.
41
Ibid., paragraph 28.
42Ibid., paragraph 30.

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Non-exhaustive list of circumstances that could and could not be considered as

extraordinary

Paragraph 14 of the Preamble of the Regulation provides 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”.

However, the ECJ has specified that “it is apparent from that statement in the preamble to Regulation No 261/2004
that the Community legislature did not mean that those events, the list of which is indeed only indicative, themselves
constitute extraordinary circumstances, but only that they may produce such circumstances. It follows that all the
circumstances surrounding such events are not necessarily grounds of exemption from the obligation to pay
1
compensation provided for in Article 5(1)(c) of that regulation” ..

According to case law, the following circumstances can be considered as extraordinary:

• Strike, outside the air carrier

• Bad weather conditions, subject to the demonstration that such it is not inherent to the air carrier’s normal
activity. For instance, flight cancellation due to volcano Eyjafjallajökull in the case Denis Mc Donagh, was
considered as justified by extraordinary circumstances. However, unexpected snow does not necessarily
amount to extraordinary circumstances unless it can be proved that it is not inherent to the air carrier’s
normal activity.

According to case law, the following circumstances cannot be considered as extraordinary.

• Administrative failure
• Passenger’s illness or behavior
• Strom strike or bird strike
• Operational problems
• Entitled strike
• Technical problem
• Sickness of a crew member

Claim Assistance may decide to bring an action against the air carrier even if the existence of extraordinary
circumstances is claimed, when:
- such circumstances are not proved
- the invoked circumstances cannot be considered as extraordinary, as listed in the paragraph above.

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II. Payment of the compensation to Claim

Assistance
A. CONCERNING THE VALIDITY OF THE POWER OF ATTORNEY SIGNED BY
PASSENGERS

1. The power of attorney is sufficient and has been properly communicated

The power of attorney sent by Claim Assistance is sufficient to demonstrate its existence.
This power of attorney is thus sufficient to initiate a claim against the air carrier and Claim Assistance will refuse
systematically to ask its clients to sign any other form of power of attorney requested by the air carrier.
In other words, Claim Assistance will not respond to any request from the air carrier aiming at claiming new documents in
order to justify existence and validity of the power of attorney. In this context, this kind of request will be considered as an
action of abusive resistance that could lead to a legal action.
Unless otherwise proved to the contrary, no additional document shall be expected from Claim Assistance in order to
prove the existence of the power of attorney.

2. Concerning the validity of the power of attorney contract

The power of attorney signed by clients of Claim Assistance reply to requirements from articles R.124-1 et seq. of the
French civil enforcement procedures code and its validity shall not be disputed.

3. Concerning the validity of the electronic signature

Electronic signature is valid, under the application Regulation (EU) no 910/2014 of the European Parliament and of the
Council of 23 July 2014, on electronic identification and trust services for electronic transactions in the internal market and
repealing Directive 1999/93/EC.

Article 25 of this Regulation provides:

“1. An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on
the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.
2. A qualified electronic signature shall have the equivalent legal effect of a hand written signature.
3. A qualified electronic signature based on a qualified certificate issued in one Member State shall be recognized as a
qualified electronic signature in all other Member States”

The validity of the electronic signature of the power of attorney shall thus not be contested.

B. CONCERNING POWER OF ATTORNEY CONTENT

1. Payment shall be made to Claim Assistance

French law is applicable to the power of attorney. Under article 1239 of French civil code, “payment shall be made to the creditor, or to
someone having power from the creditor, or being authorised by justice or by lax to receive in its place”.

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The power of attorney signed “authorizes CLAIM ASSISTANCE to act on his/her behalf, as agent (the « Agent »), in order to request
recovery of the compensation due under the application of Regulation 261/2004” (emphasis added).

In accordance with this clause binding Claim Assistance and each of its passengers, it is expected that Claim Assistance,
is entitled to receive funds on behalf of the client. The proof and contain of the power of attorney reflects the intention of
each client to give power to company Claim Assistance to act on its behalf and collect the funds.

2. No payment by voucher

Claim Assistance will refuse any payment of total amount of compensation made by voucher. As a reminder, this
possibility provided by article 7(3) of the Regulation is subject to “the signed agreement of the passenger”. On the
contrary, Claim Assistance is expressively appointed by its clients to recover the compensation they own in cash.
Each voucher sent to the company Claim Assistance or directly to its clients will be considered as abusive behavior from
the air carrier and may lead to legal action.

3. Payment shall be done by bank transfer or check

The air carrier shall pay the compensation by bank transfer or check, regardless the number of passengers.
Should you decide to pay by check, it should be usable in France and in the name of “Claim Assistance SAS”. No other
recipient will be accepted as mentioned in paragraph II-A-1 dealing with the validity of our power of attorney and our ability
to receive money for our clients.

Failing the air carrier to respect the above listed conditions as to the payment of the compensation, Claim Assistance
reserves the right to consider the compensation unpaid and to initiate proceedings.

C. CONCERNING THE VALIDITY OF THE CLAIM

This claim is valid and can be address as is, in consideration of documents attached (1), the form of the letter of the claim
(2) and applicable prescription (3).

1. Necessary documents for the treatment of the claim

In order for the air carrier to address this claim, Claim Assistance sends the following essential documents for each
passenger:
- A copy of the boarding pass, invoice or confirmation of reservation;
- A copy of the power of attorney;
- A copy of the national identity card or passport.
Those documents are necessary and sufficient for analysing and resolving the passengers’ claims. Therefore, any
requirement from your services aiming at requesting additional documents will be considered as an obstruction to the
success our compensation complaint and will justify a legal action notably for damages .

2. Form of the letter of complaint from Claim Assistance company

The claim complies with the requirements of articles R.124-1 and follow of French civil enforcement procedures code.

3. No prescription applicable to this complaint

An important clarification was made in 2011 about this issue:

“The compensation measure laid down in Articles 5 and 7 of Regulation No 261/2004 falls outside the scope of the Warsaw and Montreal
43
Conventions (see, to that effect, Joined Cases C-581/10 and C-629/10 Nelson and Others [2012] ECR, paragraph 55)” ;

43 Case C-139/11 Cuadrench Moré [2011] published in the electronic Reports of Cases, paragraph 28.

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“Consequently, the two-year limitation period laid down in Article 29 of the Warsaw Convention and in Article 35 of the Montreal
44
Convention cannot be considered to apply to actions brought, inter alia, under Articles 5 and 7 of Regulation No 261/2004.» ;

Thus “in the light of the foregoing, the answer to the question referred is that Regulation No 261/2004 must be interpreted as meaning
that the time-limits for bringing actions for compensation under Articles 5 and 7 of that regulation are determined in accordance with the
45
rules of each Member State on the limitation of actions” .

It is undisputed that applicable prescription depends of place of action and, unless disputed by your services, such period
will be the one from common law action in each country.

44 Ibid., paragraph 29.

45 Ibid., paragraph 33.

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