How to win EC 261/2004-cases from an evidential legal perspective in Denmark

A bulletproof strategy for success as legal advisor representing air carriers in
EC 261/2004 litigation

First of all, you need to have great procedural experience with presenting evidence in court to win disputes regarding EC 261/2004-claims, including a deep understanding of the documentation involved. The complexity of the EC 261/2004 cases and the effort required to defend the cases are quite substantial. It requires a broad knowledge about the airline industry to be able to present the necessary and essential evidence to the courts. In addition to this, you must be able to identify missing information – that is vital for your defence – and obtain such documentation from the air carrier, or if possible, data through your own research e.g., METAR/TAF, NOTAM and other relevant flight data supporting your defence.

Secondly to strengthen your defence, we recommend from an evidential legal perspective that each element of your defence, if possible, is supported and proven by presenting evidence obtained from different sources supporting the same element of your defence, e.g., data provided by the air carrier, public authorities, aviation organizations, third-party data etc. Such an evidential approach will support the validity of each element of the case and help you to win the case. By doing so, the court will deem the defence to be more persuasive and most likely the presented evidence to be credible and valid. 

Thirdly, you need to keep in mind that Danish courts – as a result of the rather strict preliminary rulings of the European Court of Justice in EC 261/2004-cases – tend to require detailed explanations of the extraordinary circumstances and, above all, of the reasonable measures taken by the air carrier in each case subject to EC Regulation 261/2004. This means that you need to be able to understand and explain in detail the presented evidence to the court, especially if your case is decided by the court on a written basis, which is common in most EC 261/2004 cases in Denmark. In cases without any oral hearing you do not – so to speak – get a second chance to explain the evidence in court. This means you will not have the opportunity to verbally clarify the presented evidence in front of the court – or for the court to ask questions to the evidence, if further clarification is needed to understand the evidence. In other words, when it comes to EC 261/2004-cases decided on a written basis, you need to be very precise and detailed in your written procedure in order to win the case. If the court does not understand or know how to read the presented evidence, e.g. technical evidence, you risk that the court might rule in favor of the passengers.

According to Danish EC 261/2004 case law, presenting essential documentary evidence is often sufficient for the air carrier in order to lift the burden of proof and thereby to win the case. Thus, the keystone to win EC 261/2004-cases in Denmark is to have your main focus on the evidence. You must use most of your effort on searching, finding, presenting, and explaining essential evidence to the court to get a verdict in favor of the air carrier.