The Court of Justice of the European Union (CJEU) is the chief judicial authority of the European Union. On the 4th May 2017 it ruled that a collision between a bird and an aircraft should be classified as extraordinary under EU261/2004 which means no compensation for passengers where flights are cancelled or delayed as a result of bird strikes.

A case first heard in a Czech court and was referred to the CJEU to establish whether Bird Strike was an “extraordinary circumstance”. Prior to this on 28th July 2016 the Advocate General issued a statement that Bird Strikes should not be considered as “extraordinary circumstances”. It was fully expected that the CJEU would ratify this statement.

Birds often strike aircraft but rarely cause any significant damage. Many small birds strike aircraft on landing and take off without causing any problems to the operation of the aircraft. When larger birds are ingested into engines there can be some significant damage that will warrant a thorough repair and review.

The Civil Aviation Authority latest available figures show 1665 confirmed bird Strikes and 829 unconfirmed this shows such incidents are inherent in the activities of an airline and should not be deemed inherent.

Simon Calder writing in the Independent confirmed from his sources that many passengers had their claims stayed pending the outcome of CJEU rulings with compensation exceeding £1 million.

We believe a bird strike should not excuse Airlines from compensating passengers. In some cases the airlines would have a legitimate excuse but in most cases a bird strike just needs a safety check that should not delay the aircraft by over three hours. The CJEU should in our view have distinguished between minor bird strike which simply requires a safety check where compensation should be payable and those which cause damage requiring repair and extensive checks where compensation should not be paid. Any clarification of the law is a good thing but this went the wrong way and will provide a potential defence to Airlines even for a minor bird strike. Where there is little or no damage. Many passengers will make claims only to learn at a later date that the delay was due to bird strike

The CJEU said that if a delay is caused by a bird strike and a technical check then passengers would be entitled to compensation if the technical check part of the delay was greater than three hours. In practice, it is very difficult to breakdown delays into various reasons. This ruling has meant that many customers will now not qualify for compensation.

We at Flight Delay Pay will be paying careful attention to identify the root cause of the delay when a bird strike is claimed by the Airline. We would recommend that customers employ a Claims company to assist with their claims so that ever effort is made to ensure compensation is payable where due.

Article by Paul Davidson, Director, Flight Delay Pay