When an airline writes that your flight was disrupted “for technical reasons” and that safety comes first, both statements can be true and the compensation is normally still due. European courts place the cost of breakdowns on the airline, not on the passenger.
The test from Wallentin-Hermann
Art. 5(3) of Regulation 261/2004 releases the airline from compensation only for extraordinary circumstances that could not have been avoided even with all reasonable measures. In Wallentin-Hermann v Alitalia (C-549/07) the Court of Justice set a two-part test for technical problems. A problem is extraordinary only if it stems from an event that:
- is not inherent in the normal exercise of the airline’s activity, and
- is beyond the airline’s actual control because of its nature or origin.
A fault discovered during maintenance, or caused by lack of maintenance, fails the first part. The Court added that complying with the legal minimum on maintenance does not prove that all reasonable measures were taken, and that how often a fault occurs is not the deciding factor.
It gave two examples of what would qualify:
- A hidden manufacturing defect affecting flight safety, revealed by the manufacturer or a competent authority for aircraft already in service.
- Damage caused by sabotage or terrorism.
Unexpected failures: van der Lans
Airlines then argued that a part failing before the end of its expected life, with no warning in any inspection, was different.
In van der Lans v KLM (C-257/14) an engine fuel pump and hydraulic mechanical unit failed on a properly maintained aircraft in Ecuador, and the spare parts had to be flown in from Amsterdam. The flight arrived 29 hours late.
The Court held that this was not extraordinary. Aircraft are complex machines and unexpected component failure is part of operating them.
No one is in a better position than the airline to prevent and repair such failures, and it can seek redress from the manufacturer under Art. 13. The airline could not rely on Art. 5(3).
What does and does not count
| Event | Extraordinary? | Case |
|---|---|---|
| Fault found during routine maintenance or pre-flight checks | No | Wallentin-Hermann, C-549/07 |
| Premature or unexpected failure of a component | No | van der Lans, C-257/14 |
| Aircraft struck by mobile boarding stairs at the airport | No | Siewert, C-394/14 |
| Hidden manufacturing defect revealed by the manufacturer or an authority | Yes | Wallentin-Hermann, C-549/07 |
| Hidden design defect in a new aircraft type, revealed by the manufacturer after the event | Yes | Finnair, C-385/23 |
| Bird strike | Yes | Pešková, C-315/15 |
| Tyre damaged by a screw or other debris on the runway | Yes | Germanwings v Pauels, C-501/17 |
| Lightning strike requiring a mandatory inspection | Yes | AirHelp v Austrian Airlines, C-399/24 |
| Sabotage or terrorism | Yes | Wallentin-Hermann, C-549/07 |
Good to know
The dividing line is the origin of the damage.
Things that go wrong inside the aircraft’s own systems, or through the equipment and services an airline uses every day, are the airline’s risk. Things that come from outside and that the airline cannot control are not.
Bird strikes: Pešková
In Pešková (C-315/15) a flight was delayed by a technical fault and then by a bird strike on the same aircraft. The Court of Justice held that a collision with a bird is extraordinary, because it is not intrinsically linked to the aircraft’s systems. It added three limits:
- The airline must still have taken all reasonable measures. It cannot be required to take preventive steps that belong to the airport, such as bird control.
- Delay caused by a second inspection the airline chose to order, after an authorised expert had already cleared the aircraft, is not covered.
- Where a delay has several causes, the time attributable to the extraordinary event is deducted. If the rest still amounts to three hours or more, compensation is due.
Ground collisions: Siewert
In Siewert v Condor (C-394/14) a set of mobile boarding stairs hit the aircraft and damaged a wing, and the flight arrived with a long delay. The Court held that boarding stairs are indispensable to air passenger transport, so a collision with them is inherent in the airline’s normal activity. Compensation was due.
Hidden defects
A hidden defect is not any defect the airline did not know about. It must come from manufacture or design, affect flight safety, and be revealed by the manufacturer or an authority.
In Finnair (C-385/23) a fuel gauge failed on an aircraft only a few months old, and the manufacturer later confirmed a design defect affecting the whole type.
The Court accepted this as extraordinary even though the defect was identified after the cancellation.
Even then the airline must prove reasonable measures, which can include having a replacement aircraft available where that is technically and economically feasible.
How to respond to a refusal
- Ask for the specific fault, when it was found and what the airline did to get you there sooner.
- Reply that under Wallentin-Hermann (C-549/07) and van der Lans (C-257/14) technical faults are inherent in the airline’s activity, and that the burden of proof is on the airline.
- Claim the fixed amount: see flight delay or flight cancellation for the table, or use the calculator.
- Send it in writing with our claim letter. If the airline still refuses, how to claim explains the next steps.
Good to know
Care, and the choice of refund or re-routing, are owed whatever the cause.
UK, and the 2027 EU rules
The same case law applies to flights under UK261; the Court of Appeal reached the same result for technical faults in Jet2.com v Huzar, [2014] EWCA Civ 791.
From 23 October 2027, Regulation (EU) 2026/2202 adds a list of extraordinary circumstances to the regulation. On the technical side it includes:
- Hidden manufacturing or design defects revealed by the manufacturer or a competent authority.
- Damage to the aircraft caused by third parties, animals or foreign objects.
Ordinary technical faults are not on it.