Due to capacity shortfall of air traffic controllers flights are often regulated and receive delayed ATC slots leading to the delay of the directly affected flight or later rotations of the same aircraft. Initially this reason in itself was not regarded as an extraordinary circumstance by German courts. Additional reasons for the cause of the reduced capacities had to be presented. This approach was recently changed by the Local Court Frankfurt followed by the Local Court Cologne and Local Court Königs Wusterhausen (being competent for SXF and BER) as they release airlines from liability with respect to compensation under Reg. (EC) 261/2004 in these situations. The courts held that the fact that air traffic controllers are understaffed leading to capacity shortfalls, is outside the control of the airline. Capacity related regulations are air traffic flow management decisions which provide for extraordinary circumstances under Art. 5 (3) of Reg. (EC) 261/2004. It has to be stressed that these courts do not take into consideration whether the actual reason behind the capacity shortfall qualifies for extraordinary circumstance as well – such as weather or strike. They only refer to the air traffic flow management decision as such.
Another very important aspect is how the courts determined the relevant facts: their findings were bases on (i) the regulation of the flight in question, and (ii) the reason for the regulation. In general, airlines are able to present abstracts from their internal system, especially movement logs, and slot allocation messages, as well as slot revision messages. These documents usually also display the IATA delay codes. All mentioned courts accepted this as formal evidence. Depending on the respective case it might be necessary to provide further details on reasonable measures, especially where the flight in question is regulated as a result of previous regulations due to Delay Code 81, and therefore Delay Code 93 is displayed as knock-on effect.