11277m

Yes, Fabo.sk, I understand what you are saying, and warakorn too. I think my mind was perhaps a little corrupted at the time I was writing.

Flying Lawyer

The airline is not willing to pay, you need to go to court. You win, they pay the fees, you don't win, you pay the fees. In court they carry the burden of evidence, so where is the assymetry of power? One cannot really expect that a private business happily pays every amount requested.

htb

The airline is required by law to show evidence that they cannot be held responsible for the delay. If they refuse to show evidence to the passenger, they are not following the law, and it should not be a surprise that they have to pay the court fees for the trial that is necessary to obtain the evidence.

HTB.

Fabo.sk

Going to court is a comparatively smaller burden to the airline than to the customer, regardless of who is right.

The airline is counting on the fact that customers will not be able to afford the risk of having to pay costs, therefore will abandon valid claims.
This is asymmetry of power in two ways actually - both financial - airline can more easily afford to pay the immediate costs of litigation (court fees, lawyers, etc.) than an individual customer, whether or not the cost can be recovered.
The airline is also holding the evidence, which it does not want to divulge to the customer. This is also asymmetry.

A private business is not expected to happily pay every amount requested. If the airline feels that the evidence shows they are right, they can give said evidence to the customer at effectively no cost.
If the customer still decides to go to court based on this evidence, then the decision will take place based on the evidence, and the airline should indeed recover cost if they win.

In other words, the airlines are using the asymmetry to force the customer to effectively buy the evidence they can give out at zero cost if they wanted.

Flying Lawyer

I did not ask for you personal view but for evidence or at least for a legal basis for your personal view. German law follows the rule that the decision on costs follows the decision on the merits. The concept you argue finds - at least to my knowledge as a German disputes lawyer with 25 years of experience - no basis in German law.

Flying Lawyer

This concept would be "nice to have" but it is not implemented in German law. The main issue however is that "extraordinary circumstances" is not a factual term but a legal term. Whether or not circumstances are "extraordinary" need to be decided on a case to case basis and even courts hold differently on comparable set of facts.

Flying Lawyer

Believe me, this is exactly the other way round. The customer utilizes a so-called high street lawyer working on statutory fees and might have even coverage from insurance or makes use of one of the agencies working on contingency basis. The airline uses their regular litigation counsel paid on the basis of hourly rates. A 600 Euro case might well cost the 10.000 Euro. If they would use comparable high street lawyers this would result in skyrocketing internal costs. This is the reason why they refuse to pay as long as they can deal with such cases based on the work of a fulfillment center writing boiler plate letters and give in asa they get white mail from a lawyer. The decision that needs to be taken internally is to cough out the bigger money for the lawyer or the smaller money for the customer. And further: Even if the airline wins they do get cost reimbursement from the customer not based on their real expenses but based on statutory fees. Winning is 600 Euro case might well mean paying 6000 Euro in legal fees and receiving 200 Euro reimbursement. Going to court is always to direct opposite of a win-win situation for the carrier.