FlyerTalk Forums - View Single Post - Compensations for Cancellations/Delays/Changes - EC 261/2004 MASTER THREAD for AF
Old Jun 11, 2025 | 5:48 am
  #376  
sehgalanuj
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Originally Posted by brunos
You are asking for advice on FT so I will give you my personal one, for whatever it is worth.
AF and KL are two different airlines with different management. A comparison with KL is not more (or less) worthy than a comparison with BA or LH.
Fair enough, and not something I disagree with entirely. It’s clear they both made different operational decisions. But saying that a comparison between BA/LH and AF/KL is equivalent goes a bit beyond reason in my view — AF and KL are part of the same group, Air France-KLM. Just as BA belongs to IAG (along with IB), or LH to LHG (with LX and OS), there’s meaningful integration. AF and KL coordinate at several operational layers despite being run as separate brands.

On the day in question, KL overflew Pakistan and AF didn’t — that contrast within the same airline group suggests the decision wasn’t driven by any formal group policy or mandate, but rather by individual airline discretion. That’s really the point I’m trying to make.
Originally Posted by brunos
Even if there is no "compulsory" French or EU NOTAM, everyone would agree that there was a serious conflict following the 22 April terrorist attack. India had publicly stated that they would retaliate on Pakistan.
Furthermore "Pakistan conducts training launch of surface-to-surface missile on 3 May".
https://www.aljazeera.com/news/2025/...ith-india-rise

It would be hard to argue that there was no extraordinary circumstance due to the conflict and its expected development and that AF management decision was unreasonable, even without any missile launch.
I don’t disagree with the seriousness of the geopolitical situation — it was a volatile week. I even had family and friends amongst the real thick end of it. And I agree that AF’s decision to avoid Pakistani airspace was prudent. But the core issue under EC261 isn’t whether a decision was wise — it’s whether it was mandated by an external force or within the airline’s control. There’s a clear legal distinction between a precautionary decision and a sovereign-imposed airspace closure. The former, even if reasonable, is a voluntary operational choice, and under EU law, that typically doesn’t meet the threshold for an extraordinary circumstance (e.g. replacing an aircraft because a technical fault was discovered still keeps the airline liable. This is also a security issue, but doesn't exempt the airline). Otherwise, many regions with chronic tensions would be permanently exempt from EC261 — which is clearly not the law’s intent.

Just to underscore: I actually applaud AF for their caution. Honestly, I think KL was overly bold in continuing the same routing until an official NOTAM went into effect on the day of the strikes. I even spoke to some KLM staff about it, and several couldn’t reconcile the decision either. But again, the fact that the airlines chose differently — and both had the option — shows it wasn’t imposed externally. We’ve seen similar behavior before — like when AF continued flying over Iranian airspace amid missile activity, even with public warnings in place. These are complex operational decisions, and airlines balance many factors. But under EC261, it’s not the wisdom of the choice that matters — it’s whether the cause of delay was entirely outside their control.
Even if we accept that the first hour of delay due to rerouting might possibly be extraordinary, AF still had levers; e.g. they could have departed earlier. In fact, they called me 2 days before departure to notify me of the adjusted schedule requiring an hour's delay at arrival, so clearly some level of planning was possible, to keep the delays minimized within the scope of EC261. The problem is that the flight ultimately arrived over 3 hours late, and AF themselves admitted that at least 1h40m of that delay was due to operational factors (aircraft swap and tech issues). Sometimes, under ECJ rulings even partial airline responsibility is enough to trigger full compensation. The burden is on the airline to prove the entire delay was due to extraordinary circumstances. As I see it, that threshold hasn’t been met.
If EC261 were about moral judgment, I’d let this go — AF’s intentions were clearly responsible. I deeply appreciate that. But EC261 is about passenger rights, not airline intentions. Based on how the delay breaks down:
  • 1hr delay due to rerouting to avoid Pakistani airspace — they claim it to be extraordinary, but it was voluntary.
  • Another 1hr delay due to equipment swap — they have admitted was operational.
  • Further 1hr delay due to technical issues on swapped aircraft —they have also admitted was operational.
I see what you are trying to say, but my point is, it seems there is no legal clarity on whether first hour would make them legally liable or not, given that it was a choice they made. Beyond the legal question of it, there is no doubt it was the right decision on their part.

Originally Posted by brunos
PS: Also note that AF226 and KL871 do not fly at the same time of the day. Could be that the missile launch was announced as completed by the time KL flew.
I am very familiar with this since the AMS/CDG-DEL is my most regular route. I am on this route on both airlines every couple of weeks. On 3 May, both AF226 and KL871 landed in DEL within 10 minutes of each other. The comparison isn’t about their regular operating hours — it’s about the airspace being open to AF, if they had chosen to use it, as KLM did. Referencing KL instead of, say, TK or MH is deliberate — it shows that even within the same group, another airline made a different operational decision — thereby demonstrating the voluntary, and thereby non-extraordinary, nature of the decision because that strongly undermines the claim that there was no alternative.

Even on regular days, the flights are just about 2-3hrs apart depending on the season. Flight plans would be filed well before either of them would be above the airspace in question.

At the end of the day, EC261 compensation hinges not on whether an airline made the right call, but whether the delay was caused by external forces. That burden of proof lies with the airline. In any case, it seems that no one here has dealt with a scenario of this sort where the decision of the airline, while admittedly not a bad one, and clearly a voluntary one, would in a legal sense be classified as an extraordinary circumstance or not. So, I will pursue this for a bit to see what comes out of it. There are relatively inexpensive methods to do this at the moment, so it doesn't hurt.

Last edited by sehgalanuj; Jun 11, 2025 at 6:12 am Reason: Edited for clarity a bit.
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