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European Commission confirms that the Brussels attacks were "extraordinary circumstances" for the purposes of Regulation 261

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On the morning of 22 March 2016, three coordinated nail bombings occurred in Belgium: two at Brussels Airport in Zaventem; and one at Maalbeek metro station in Brussels. 32 people were murdered and over 300 people were injured.

Another bomb was found during a search of the airport. The attacks were the deadliest act of terrorism in Belgium’s history. The airport remained closed until Sunday 3 April. 

We must regrettably acknowledge that terrorist attacks are, to some extent, to be anticipated and that aviation has been a major target of such attacks. Numerous pieces of EU and domestic legislation have been implemented across the globe with a view to making air transport safer and preventing such attacks from succeeding – as we are reminded by the limits on liquids allowed in carry-on baggage and additional security screening.

It was helpful therefore, not to mention correct, that the day following the attacks and despite a raft of recent case law diminishing all but a very small number of the “extraordinary circumstances” defences, that the EU Commission issued an Information Statement to passengers due to fly in or out of Brussels airports in which the Commission officially and publicly recorded the events in Brussels as “extraordinary circumstances” for the purposes of Regulation (EC) 261/2004. Whilst this is unquestionably the correct position, it is welcome in any event.

ACCORDING TO THE AIR PASSENGER RIGHTS REGULATION (261/2004), EVEN IN CASE OF CANCELLATION DUE TO EXTRAORDINARY CIRCUMSTANCES, SUCH AS THE EVENT AT BRUSSELS AIRPORT ON 22 MARCH,THE OPERATING AIR CARRIER HAS TO PROVIDE TIMELY INFORMATION AND ASSISTANCE.

                                                                                                                                            Information to passengers flying from/to Brussels Airport (30/03/2016)

 

In recent months, the English County Courts have determined that both lightning strike and bird strike could no longer be deemed to be extraordinary, since there are design features in aircraft and at airports to enable aircraft to avoid and/or withstand such occurrences. In our view, both of these should still be deemed to be extraordinary circumstances. It is therefore welcome news that terrorist attacks remain so. 

Gillie Belsham

Gillie Belsham Global Head of Aviation, Joint Head of Energy & Infrastructure, Partner

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