Get EC 261 Compensation When Swiss, Lufthansa Refuse to Pay

Get EC 261 Compensation When Swiss, Lufthansa Refuse to Pay


How do you get EC 261/2004 compensation when Swiss, Lufthansa, or another European airline refuses to pay? TravelSort reader Martin, from London, UK, writes: “I was on a Swiss flight that was cancelled due to the need for a replacement part. The rebooked flight only got me to my destination a full day later. My understanding, from your posts, is that mechanical issues are not considered an exceptional circumstance under EC 261/2004, so I filed for compensation on the Swiss application for compensation page. Unfortunately SWISS wrote back and denied me, stating “We consider the described flight cancellation necessary and the irregularity to be extraordinary circumstances. These could not have been avoided even if all reasonable measures had been taken.” Am I out of luck, or is there still some way to get Swiss to pay?”

SWISS and Lufthansa Have a Pattern of Denying EC 261/2004 Compensation

Unfortunately, SWISS and Lufthansa (among other airlines) are known for denying most EC 261/2004 compensation claims, no matter how well founded. SWISS in particular does not recognize the European Court of Justice case law that has affirmed that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, 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.” (Paragraph 34, Friederike Wallentin-Hermann v. Alitalia, also cited by Sturgeon v. Condor and Bock v. Air France)

That makes it harder for claimants whose itinerary only touches Switzerland and a non-EU country such as the U.S., Canada, etc. But claimants whose itinerary touches an EU country or the UK are better positioned to get compensation for a mechanical issue that caused an EC 261/2004-qualifying delay or cancellation.


UK Claimants: Use Money Claim Online (MCOL) to Take the Airline to Small Claims Court

UK-based claimants such as Martin can take SWISS, Lufthansa, and other airlines that owe them EC 261/2004 compensation to small claims court by filing a Money Claim Online (there is also a new money claims service for claims under GBP 10,000). There is a period of 5 days from the date you file your claim allowed for service of the claim, and from that fifth day after you file your claim, SWISS (or the other airline defendant) has 14 calendar days to file a response; if the 14th day falls on a weekend or public holiday the court allows until 4pm the following working day for a response to be filed. That said, the defendant can prolong the time permitted to respond to 28 days, by filing an acknowledgment of service (AOS). If SWISS fails to respond within the allotted time, you can request a default judgment.

As an example, Flyertalker Dave_C, who suffered a flight cancellation on his SIN-ZRH-LHR itinerary in 2022, also due to a mechanical issue, received a similar response to Martin:

“We consider the described flight delay as necessary and this irregularity to be an extraordinary circumstance. This could not have been avoided even if all reasonable measures had been taken. Therefore, I must deny your claim for compensation.”

Unfortunately for SWISS, Dave was not one to give up. His flight was to the UK, so UK 261/2004 applied, including all the ECJ case precedents such as Wallentin-Hermann as well as  Huzar v., which narrowed “extraordinary circumstances” to be those that are truly outside an airline's control, such as severe weather conditions, terrorist attacks and the like. The UK Civil Aviation Authority notes on its Web site that per the UK Court of Appeal's decision (bolding mine) “ordinary technical problems that cause flight disruption, such as component failure and general wear and tear, should not be considered an ‘extraordinary circumstance' and compensation would be payable in these cases.”

Ultimately, after Swiss failed to respond to Dave's UK small claims court case, Dave requested default judgment and Swiss' lawyers agreed to pay him in full:

“In my case, they only acknowledged their responsibilities under ‘right to care’ i.e. paying for my hotel bill at the Crowne Plaza at Changi, until after three emails to customer relations, my ‘letter before action’ and me actually taking action out in the small claims court. So even with things like that, they stonewall.

However in terms of my claim, judgement was indeed issued and their solicitors have agreed to pay me in full. Final step now for me is to wait for the funds to arrive.”


For Claimants Without Easy Access to Small Claims Court, Consider a Air Passenger Rights Service

If you're not in the UK or in a country with similarly easy access to an online small claims court service, it may be worth it to pay ~30% of the expected compensation amount to one of the air passenger rights enforcement firms such as Flightright. If they accept your case, they expect to be able to obtain compensation, and their commission comes out of the compensation received.

If you've had SWISS or Lufthansa refuse to pay an EC 261/2004 claim, what was the situation, and were you ultimately able to receive compensation?

Recommended Posts

EC 261 Compensation for Downgraded Flight

Success Claiming EC 261 Compensation from Air France

Airlines Pressure EU to Reduce Delay Compensation

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