By Decision No. 1584 dated 23 January 2018, the Italian Supreme Court found that in case of flight cancellation or delay at arrival the burden of proof lies with the air carrier. The Court, overturning a previous decision of the Court of Appeal of Rome, affirmed that a passenger claiming compensation under Regulation (EC) No. 261/2004 must provide documentation of the contractual source (that is to say he must provide evidence of the flight ticket) with no further need to prove that the air carrier has not properly fulfilled its obligations under the transport contract. In other words, according to the said position, the passenger must only prove the source of its right to compensation and it is not required to submit documentation concerning the delay/cancellation itself. As the Supreme Court notably observed, while passengers cannot provide direct evidence of the delay, the air carrier, which operates under the control and supervision of regulatory and airport authorities, has simple and unconditioned access to flight data record and, therefore, it can provide official proof and indication of the arrival time.
The aforementioned decision confirms the principle affirmed by the Court of Justice of the European Union (CJEU) in several proceedings, pursuant to which, in the context of the application of the 261 Regulation, the existence of the passenger's right to compensation is presumed unless the air carrier is able to prove: (i) the absence of grounds for compensation (for instance, the flight has not been delayed); or (ii) that the service disruption occurred due to extraordinary circumstances, as set out in Art. 5(3) of the 261 Regulation.
Furthermore, this line of reasoning is consistent with a systematic and combined reading of the 261 Regulation and the 1999 Montreal Convention, according to which the air carrier must prove that the non-performance (denied boarding and cancellation) or partial performance (delay at arrival) of the transport contract was caused by an event of force majeure or in any case beyond its control. By corroborating the predominant European orientation, this decision of the Italian Supreme Court strengthens the favourable inclination of the CJEU towards a broader consumer protection. The European Court has indeed repeatedly intervened - essentially rewriting the 261 Regulation - with the aim to expand its scope and application. Within the aviation sector criticisms are quite common around the 261 Regulation insofar as it currently establishes a consumer-friendly environment, de facto disregarding the complex and dynamic nature of the air transport services.
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