Flight Delay and Compensation: The Court of Cassation Clarifies the Burden of Proof (Order No. 17644/2025)

Air travel is now commonplace, but what happens when a flight experiences significant delays, is cancelled, or, worse, boarding is denied? These inconveniences, beyond causing stress and disrupting plans, can give rise to a right to compensation. The recent Order of the Court of Cassation No. 17644 of June 30, 2025, involving M. C. versus B., offers fundamental clarifications on the burden of proof in such situations, consolidating the protection of air passengers.

The ruling by the Third Civil Section, with President S. L. A. and Rapporteur S. T., quashed and remanded a previous decision by the Court of Rome, reaffirming key principles regarding the liability of international air carriers. But what does this concretely mean for the passenger?

The Regulatory Framework: Montreal Convention and Regulation EC 261/2004

The field of international air transport is governed by a complex system of rules, among which the Montreal Convention of May 28, 1999, and Regulation EC No. 261 of 2004 stand out. These legislative instruments were designed to balance the interests of airlines with the rights of passengers, establishing a specific liability regime for carriers.

• The Montreal Convention governs the carrier's liability for damages suffered by passengers, baggage, and cargo in case of delay, death, or injury.
• Regulation EC No. 261/2004 establishes common rules on compensation and assistance to passengers in cases of denied boarding, flight cancellation, or prolonged delay, defining the thresholds and conditions for obtaining compensation.

Order No. 17644/2025 falls precisely within this context, interpreting and applying these rules to define who must prove what in the event of a dispute.

The Burden of Proof: Who Must Prove What?

The core of the Court of Cassation's decision lies in the allocation of the burden of proof between the passenger and the air carrier. The Supreme Court has unequivocally clarified the procedural tasks of each party, simplifying the position of the aggrieved passenger.

In matters of international air transport of persons, governed by the Montreal Convention of May 28, 1999, and Regulation EC No. 261 of 2004, the passenger seeking compensation for damages caused by denied boarding, cancellation (non-performance), or delayed arrival of the aircraft compared to the scheduled time (improper performance) must provide proof of the existence of the transport contract (i.e., produce the ticket or other equivalent proof) and only allege the carrier's non-performance. It shall be incumbent upon the latter to prove the correct performance of the service or that the non-performance is attributable to fortuitous events or force majeure, or that the delay was within the thresholds of relevance set by Article 6, paragraph 1, of Regulation EC No. 261 of 2004.

This maxim is of utmost importance. It means that the passenger, to obtain compensation, must simply prove that they purchased an airline ticket (thus, the existence of the transport contract) and that they suffered an inconvenience (delay, cancellation, denied boarding). They are not required to prove the airline's fault or the specific cause of the non-performance. Instead, it is the airline that must prove that it performed correctly or that the non-performance is due to force majeure or fortuitous events (exceptional and unforeseeable events, such as extreme weather conditions or strikes not attributable to the carrier), or that the delay falls within the tolerance limits provided by Article 6, paragraph 1, of Regulation EC No. 261/2004.

This principle is closely linked to Article 1218 of the Civil Code, which establishes the debtor's liability for non-performance, and Article 2697 of the Civil Code on the burden of proof. The Court of Cassation has applied these general principles to the specific context of air transport, confirming an orientation already expressed in previous rulings (such as the consistent ruling No. 1584 of 2018 and the United Sections ruling No. 8802 of 2025, also cited in the order).

Conclusions: Enhanced Protection for Passengers

Order No. 17644 of 2025 represents a further confirmation of jurisprudence favorable to passengers, lightening their evidentiary burden and shifting the focus of proof to the carrier. In practice, if your flight was cancelled, experienced a prolonged delay (exceeding 3 hours for distances covered by Regulation EC No. 261/2004), or you were denied boarding without valid reasons, you only need to produce your travel document and allege the incident. It will then be the airline's responsibility to prove it is exempt from liability. This ruling is an important beacon for all those who face inconveniences in air travel, providing a solid basis for the protection of their rights and making compensation claims easier. In case of flight issues, it is always advisable to seek legal professionals to assess your position and take the most appropriate actions.