Written by Eyal Doron, Partner with S. Horowitz, Tel Aviv, Israel

Israeli District Court holds that invoking EU Regulation 261/2004 without proving its content through expert evidence is insufficient — a significant procedural defense for airlines

 

Executive Summary

In a recent ruling (RTA 38116-06-26), the Tel Aviv District Court confirmed that while Section 16 of the Israeli Aviation Services Law, 5772-2012 (“ASL”) preserves passengers’ rights to claim compensation under “any law”—including EU Regulation 261/2004 (“EU261”)—such foreign law must be affirmatively proven as a matter of fact before Israeli courts. The Court dismissed EU261 claims raised in a vague, unfounded manner, reinforcing a critical procedural defense available to airlines.

Facts of the Case

Passengers booked a flight from Larnaca to Tel Aviv, scheduled for August 25, 2025, at 22:05. At 13:18 that same day, they received notice the flight would depart at 00:40. After arriving at the airport based on the revised schedule, the flight was delayed further, ultimately departing at 02:11. The passengers filed a claim for NIS 12,275 under both EU 261 and the Israeli ASL. The Small Claims Court dismissed the claim in full, and the District Court denied leave to appeal.

The Issue Before the Court

Can passengers invoke EU261 in Israeli courts by merely referencing its provisions in their pleadings, without affirmatively proving the content and applicability of the foreign law?

The Court’s Analysis

The Court acknowledged that Section 16 of the ASL (“Preservation of Laws”) explicitly states: “Nothing in the provisions of this law shall derogate from the provisions of any law, including the right of a passenger to compensation under any law.” This, in principle, opens the door to EU261 claims in Israeli proceedings.

However, the Court emphasized the well-established principle – that “provisions of foreign law in Israeli courts are in the nature of facts that must be proven by evidence.” Proving foreign law typically requires submission of expert opinions or expert testimony on the foreign legal system.

In this case, the passengers raised their EU261 claims “in a vague, unfounded manner,” and the foreign law was not proven “even in a minimal manner.” The Court therefore declined to rule on whether EU261 can substantively apply in Israeli courts, finding it unnecessary—the claim failed at the evidentiary threshold.

Conclusions and Practical Implications

This ruling provides airlines operating in or through Israel with a robust procedural defense: Passengers seeking to rely on EU261 in Israeli courts bear the burden of proving its content through competent expert evidence. Simply citing the regulation in pleadings will not suffice.

Furthermore, airlines can challenge the admissibility of EU261 claims by objecting to the plaintiff’s failure to prove foreign law. This is an effective threshold defense that may dispose of such claims without reaching the merits.

Upcoming Events