Prima facie evidence of the provision of all reasonable measures

26. Mai 2021

According to Art. 5 Para. 3 Reg. (EC) No 261/2004 an operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation or delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Furthermore the airline has to prove that allreasonable measures had been taken in order to avoid the cancellation or delay itself. The latter often poses a problem, as the list of possible measures seems almost endless.

On December 16th 2020 the local court of Memmingen now decided that since disruptions in flight operations usually result in severe knock on effects the punctual performance of flights is in the airline’s own interest. Hence a prima facie evidence of the provision of all reasonable measures is given in case passengers were transported to their final destination by bus after their flight was diverted to a near by airport due to adverse weather conditions. The court was of the opinion that it was the plaintiff’s obligation to prove that a serious possibility of a less burdensome alternative existed for the passengers. Simply asserting that the defendant did not take all reasonable measures to avoid the delay/cancellation is not sufficient. Furthermore, it cannot be expected that the defendant makes statements on all theoretically possible alternatives.