Norwegian refuses EU delay (4.7 hours) compensation because it turned out there was nothing wrong with the aircraft

Question

My flight from Oslo to Rome was delayed by 4 hours and 40 minutes. I submitted a request to Norwegian Air Shuttle requesting a compensation of 400 Euros under EU 261/2004.

Their reasoning for why they can not grant compensation is that while they had to inspect the aircraft for technical faults, there actually were no faults. So, they argue that this situation where they had to inspect the aircraft but actually there was nothing wrong with it constitutes exceptional circumstances.

Question

In my complaints to the The Norwegian Travel Complaint Handling Body, and the EU Online Disputes Resolution, how should I most effectively argue against this logic? Are they correct that this "inspection that found nothing" constitutes exceptional circumstances?

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Full text of refusal e-mail

The full text (emphasis mine) of the response of the airline (automatically translated from the original Danish):

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Flight disruption information

Norwegian flight: DY1874 (OSL-FCO) 23.06.2019

Delay time: 4 hours and 40 minutes

Reason for disruption: This flight was delayed due to an inspection of the aircraft following a possible technical fault. During inspection, no technical defect was found. The aircraft was then released for operation without the need to replace any components.

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Unfortunately, we are unable to meet your claim for compensation as this departure was delayed due to exceptional circumstances. In some cases, the passenger will be entitled to compensation when the irregularity is due to a technical error. This is in accordance with the judgment in C-257/14 van der Lans, where a technical error which results in the replacement of a component can be considered to be within the airline's control and thus give the right to compensation. In this case, there was no technical fault and no components were replaced. The Van der Lans decision is therefore not applicable and unfortunately we cannot meet your claim for compensation. In this case, we will reimburse the following expenses applied for:

• food: NOK 418,

Unfortunately, we are unable to meet the request for reimbursement of all costs as we are not responsible for these. For further information, please see below *.

In order to process your claim, we need the following information to make a bank transfer:

• Name of the bank • Name and address of the account holder • Account number

This information can be sent by replying to this email. If you do not have this information, please contact your bank.

The case will be finalized as soon as we have received all the necessary information.

With best regards, Karina The Customer Relations Team

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• Basis for decision

In the event of a cancellation or delay, we will always provide assistance (eg accommodation, meals, telephone calls and transport) according to EU Regulation 261/2004. In the event that a passenger incurs such costs, in the event of a delay or cancellation, we will reimburse within reasonable limits if such costs were deemed necessary and specified receipt can be presented. We cannot reimburse these costs if the passenger does not allow us to offer this kind of assistance or if the costs arose as a result of lost connection with Norweigan, in a separate booking number, or if the alternative departures offered to the passenger , was not appropriate. The Norwegian ticket will only be refunded if the flight is canceled or the delay is over 5 hours and the passenger chooses not to travel. If the passenger is entitled to reimbursement of the new ticket (with Norwegian or with another company), we will only reimburse the cost of the new ticket or the price difference between the new ticket and the ticket with Norwegian if the Norwegian ticket is refunded.

Additional costs not directly linked to the service regulated by EU Regulation 261/2004 will only be reimbursed if the reason for the delay or cancellation is within our control. If we believe that the passenger has not done enough to ensure that the pre-booked arrangements can be completed (eg relocations, accommodation, events, etc.), we will not be able to cover these costs even if the delay or cancellation is within our control . Likewise, we cannot cover consequential non-documented damages, expenses that would have arisen independently of the irregularity, or unnecessary legal assistance to determine such claims. Under the Montreal Convention and the decision of the Norwegian Aviation Complaints Board in case number 1222 / 14F, the same conditions apply to reimbursement of consequential damages, provided that the airline has made every effort to avoid the technical problems that caused the delay or cancellation of the flight. Under Article 12 of the EU Regulation 261/2004, additional costs that are not directly related to the service regulated by the regulation may be deducted from standard compensation. For more information about your rights, visit www.norwegian.com/rights.Disruption type: Delayed

Update: After I complained to the The Norwegian Travel Complaint Handling Body, and they threatened to look at the case and asked Norwegian for a statement, Norwegian agreed to give me EUR 400 plus NOK 418 for food, and one of the taxi rides. This cost me no legal fees at all. Thanks for the help!

Answer 1

The refusal is logically fallacious, and it misrepresents the Van der Lans case on which it relies. Let's pick it apart:

Misleading claim about the case

They claim that the Van der Lans decision holds that "a technical error which results in the replacement of a component can be considered to be within the airline's control and thus give the right to compensation." This mischaracterizes the decision. Actually, the ruling was

a technical problem, such as that at issue in the main proceedings, which occurred unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ within the meaning of that provision.

The ruling describes the technical problem "such as that in the main proceedings," which leaves it open to interpretation -- and further litigation -- as to which aspects of the technical problem could distinguish this case from others. But the airline asserts that the ruling applies only to technical problems that result in the replacement of a component. That does not appear to be critical to the court's reasoning in this case, except that the fact that the replaced components having failed early was part of KLM's argument. The court held that this did not matter.

On the contrary, the court made reference to Wallentin-Hermann (C‑549/07, EU:C:2008:771), in which the ruling held that

1. [...] a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ ..., unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. [...]

I would argue that the distinguishing factors in Van der Lans are actually those mentioned in the ruling itself. That is, the ruling applies to technical problems that are

1. unexpected,
2. not attributable to poor maintenance, and
3. not detected during routine maintenance.

Wallentin-Hermann, by the way, is where the airline gets the concept of "within its control," which isn't found in the Van der Lan ruling. But the test there actually has two parts, and they only mention one. For something to be "extraordinary circumstances" it must not only be beyond the airline's control but also outside the "normal exercise of activity."

Poor logic

Let us for the sake of argument assume that the assertion about the Van der Lans case is correct. That is, because this incident doesn't concern an actual technical problem, but only the suspicion of a problem, Van der Lans does not apply.

In that case, the logic is this:

1. Van der Lans says that a certain category of technical problem warrants compensation.
2. There wasn't actually a technical problem here, or the problem is of a different category, therefore Van der Lans does not apply.
3. Therefore, this does not warrant compensation.

The last does not follow. It's equivalent to this line of reasoning:

1. People with US passports are US citizens.
2. My next-door neighbor does not have a US passport.
3. Therefore, my next-door neighbor is not a US citizen.

But she is a US citizen. The fact that someone does not have a US passport actually tells us nothing about her citizenship. More generally, if the truth of A implies that B is true, that does not in turn mean that A being false implies that B is false. Wikipedia has an article about this where it is called denying the antecedent.

The last sentence is particularly egregious:

there was no technical fault and no components were replaced The Van der Lans decision is therefore not applicable

Okay, even if the Van der Lans decision really is not applicable, it still does not mean that the airline isn't responsible. The Van der Lans decision is not the only route by which responsibility may arise.

The inspection itself was within the airline's control or inherent in the normal exercise of its activity, so the "extraordinary circumstances" exception does not apply.

Conclusion

I would write something like this:

The reliance on the Van der Lans decision is misplaced. Even if were true that this incident falls outside the scope of that decision, which I dispute, that does not imply that the incident qualifies for the "extraordinary circumstances" exception. When the court identified one category of technical problem as not qualifying for that exception, it did not thereby cause every other kind of technical delay to qualify for it.

Even if this incident can be distinguished from the one in Van der Lans, the same logic applies. Van der Lans relies on Wallentin-Hermann, which says that the "extraordinary circumstances" exception does not apply unless a problem "stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control." In this case, the delay was the result of an "inspection of the aircraft following a possible technical fault," which is certainly part of the normal exercise of an airline's activity.

Van der Lans underlines that "functioning of aircraft inevitably gives rise to technical problems" (paragraph 37) and that fixing technical problems to ensure proper functioning of the aircraft is part of the normal activity of an airline (paragraph 43). The same must be true of investigating suspected technical problems, for that too is "required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business" (paragraph 43).

Answer 2

If you strip away all the misdirection, the airline's denial can be paraphrased as:

An inspection was conducted. The aircraft passed the inspection.

and

This was an extraordinary circumstance.

If for this airline, having its planes pass inspections without finding failures is extraordinary, that surely is not a fact they should like to advertise.

I think you will win your claim easily if you point out that passing an inspection can be extraordinary only if the airline ordinarily fails inspections.

Answer 3

IANAL, but my understanding of the situation is that they're using some really selective and literal reading of the van der Lans judgment to try to make you go away. As the EU website on passenger rights suggests, it's probably a good time to complain to the relevant national authority. They should then advise you on how to proceed further.

The ruling in Case C‑257/14 (van der Lans vs KLM) contains the following paragraphs that I feel are the most relevant (emphasis mine everywhere).

37. Since the functioning of aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course in the exercise of their activity with such problems. In that connection, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004 …

Then there's an example of what would be an extraordinary technical issue, namely a fleet-wide defect:

38. Nevertheless, certain technical problems may constitute extraordinary circumstances. That would be the case 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 defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism …

The ruling also clarifies that no matter how unexpected, technical issues are the airline's problem:

41. Next, it must be observed, first, that it is true that a breakdown, such as that at issue in the main proceedings, caused by the premature malfunction of certain components of an aircraft, constitutes an unexpected event. Nevertheless, such a breakdown remains intrinsically linked to the very complex operating system of the aircraft, which is operated by the air carrier in conditions, particularly meteorological conditions, which are often difficult or even extreme, it being understood moreover that no component of an aircraft lasts forever.

42. Therefore, it must be held that, in the course of the activities of an air carrier, that unexpected event is inherent in the normal exercise of an air carrier’s activity, as air carriers are confronted as a matter of course with unexpected technical problems.

Then, finally, comes the hammer that Norwegian is presently using to bash you:

43. Second, 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 maintenance and proper functioning of the aircraft it operates for the purposes of its business.

So they're taking the bit about "including the replacement of components" as a restrictive clause, while my understanding is that the intended meaning is to expand and clarify the meaning of "repairs". Either way, whatever checks they did on your plane were probably conducted to "prevent a breakdown" and "ensure proper functioning", so the "extraordinary circumstances" exception shouldn't apply. Paragraph 35 suggests that this exception should only be applied in, let's say, extraordinary situations.

35. Next, it should be recalled that the Court has stated that, since it constitutes a derogation from the principle that passengers have the right to compensation, Article 5(3) must be interpreted strictly …

Answer 4

Airlines routinely attempt to get out of their payments, and attempting to make people go away with a form letter, even if it is completely fabricated nonsense, is so cheap that you can count on them trying. Heck, if one or two people go away after such a letter, it has already paid for itself.

I used to be a frequent flyer and I've had my share of delays, and by my experience the airline will almost always try to make you go away. A letter from a lawyer will shut them up and make them pay, so if you have a legal insurance that covers you, stop wasting your time and get them a letter from a lawyer.

I have never had to go to court, but my lawyers had to threaten court and prepare court papers more than once before the airline finally coughed up what nobody except them ever doubted they had to.

That being said in general, the exceptions provided in the law do not cover your case. Most importantly, exceptional circumstances are generally ruled as those outside of the control of the airline. Think erupting volcano, large-scale disaster or the destination airport being bombed (that, sadly, did actually happen to me).

Deciding to do an inspection of their own aircraft is definitely a decision that the airline made within its own sphere of control. At that point, it doesn't matter if they find something or not.

So, tl;dr:

if ($have_legal_insurance) haveLawyerSendLetter($airline)
else loop answerYourselfAndPersistInDemand($airline) until $they_paid
or giveCaseToOnlineCollectionAgency($yourchoice)

Yes, this happens so often that there are websites that you can sell your claim to and they will pay you upwards of 60% of your claim immediately, then pursue the case for you - which tells you that the airlines will eventually pay them in 80%+ of the cases.

Answer 5

It is very unfortunate that the airlines are refusing the compensation by using different tricks.

The case will be finalized as soon as we have received all the necessary information.

So please don`t give your bank information to the airline because in that case you are accepting the offer they have made to you i.e. you are accepting NOK 418.

Airplanes have very complex electronics. A pilot has to go through a pregiven preflight checklist i.e. that everything is working fine. If there is an error then he/she has to take countermeasures. So the airlines are required to carry out regular maintenances to avoid such errors/defects.

Where as a defect can be an exceptional circumstance but it very seldom. Despite that your airline has still not told you the exact technical fault in the email. Even a failure of hydraulics, fuel system, gasoline pump etc. are not exceptional circumstances. A list of such faults which are not exceptional circumstance including court decisions can be found here. (use translator)

So please ask the airline the exact technical fault and consult a laywer who is specialised in this area.

Answer 6

The most effective path of action may be to delegate your claim to specialized agencies. They know all the tricks used by air companies to refuse compensation, they have access to flight databases which list real causes of delays, they fully know EU261 and can launch legal action if needed. In exchange they pay themselves on a percentage (about 30%) of what they can get from air companies.

Answer 7

I would argue the following basis , and ignore completely the case they quote (which has been addressed in other answers):

The airline has claimed that it undertook an inspection, but that the fact nothing was in fact found to be wrong, causes this to be exceptional and outside their control.

However, a responsible proactive safety conscious airline, will always err on the side of caution. Therefore if in doubt they will check in depth, even if nothing is eventually found, because this is good safety practice.

As a result, a proportion of suspected issues will always turn out not to actually show a fault, AND, this reflects normal consequences of a diligent proactive and risk avoidant approach to safety. Being an expected event (however uncommon) that results from proper safety practices, it does not represent, and cannot be, either exceptional, or outside the control of the airline, in the sense that is required by governing law.

tl;dr - please don't fabricate fallacious reasons not to follow the law, and pay my costs in full.

Answer 8

In my complaints to the The Norwegian Travel Complaint Handling Body, and the EU Online Disputes Resolution, how should I most effectively argue against this logic?

I don't see that any logic has been presented. Their letter can be boiled down to two things:

(1) The departure was allegedly due to exceptional circumstances.

(2) There was a court case that addressed a highly specific circumstance that doesn't apply here.

For the first, they don't explicitly present an argument, but apparently they are claiming that inspection are exceptional, which is absurd. The second is denying the antecedent.

Are they correct that this "inspection that found nothing" constitutes exceptional circumstances?

How can something that happens every day be exceptional?