On 17th September 2015 the Court of Justice of the European Union (CJEU) delivered its long-awaited decision in the case between Corina van der Lans and KLM. In this preliminary ruling, the CJEU clarifies the interpretation of the "extraordinary circumstances" stipulated in Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or a long delay to flights.
A preliminary procedure is exercised before the CJEU which, according to Article 267 of the Treaty on the functioning of the European Union, empowers the courts and tribunals of the Member States to refer questions on the interpretation of EU law.
Ms Corina van der Lans had a ticket reservation on a flight operated by KLM. The flight, which was to depart from Quito to Amsterdam, arrived with a 29 hours delay. According to KLM the delay was the result of an engine failure, more precisely a combination of defects: the engine fuel pump and the hydro mechanical unit were damaged.
The passenger brought action before the national court and sought compensation under Regulation (EC) No 261/2004. Not fewer than 10 questions were referred by the Rechtbank Amsterdam (District Court, Amsterdam), which essentially returned to the question: according to the meaning of Article 5(3) of Regulation 261/2004 the key issue was whether an unexpected technical problem, which is not the result of defective maintenance and was not detected during regular tests can constitute an "extraordinary circumstance".
According to Regulation 261/2004, if the air carrier can prove that the cancellation has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, then the carrier is not obliged to pay compensation. The question under discussion in this particular case is whether a premature defect can constitute an extraordinary event. According to the CJEU judgment, it cannot.
Firstly, the Court found that a premature malfunction of an aircraft can constitute an unexpected event. Furthermore, CJEU draws attention to the fact that during normal activity, aircrafts usually operate in difficult conditions, during which they can come up against several technical issues. Hence, an unexpected technical problem is part of the normal activity of an air carrier.
Secondly, the Court considered that in the case of this kind of technical defect, the problem could be prevented or remedied by carrying out necessary repairs, which constitutes obligations for the air carrier. Therefore the meaning of "extraordinary circumstances" does not include a technical problem. According to the CJEU, the air carrier cannot refuse to compensate the victims by referring to the cause as an "extraordinary circumstance".
Still, we can underline that the air carrier may have the possibility to file for recourse against manufacturers or third parties and seek compensation.
However, in this particular case the CJEU stated that a technical problem does not fall within the meaning of "extraordinary circumstances" of the provision, although we should draw attention to the fact that in the CJEU's opinion some technical problems can constitute "extraordinary circumstances" according to the meaning of Article 5(3) of Regulation 261/2004. Such technical problems may arise from a hidden manufacturing defect, revealed by the manufacturer and impinge on flight safety or other defects caused by sabotage or terrorism. (see CJEU judgment C-549/07 Wallentin-Hermann v Alitalia).
Indeed, if the manufacturer reveals that such technical problem affects more than one plane, it would be considered a hidden manufacturer defect, therefore an extraordinary circumstance. According to the Court's knowledge, only the aircraft in question was affected, and therefore it is not constituted as extraordinary.
Finally, the said ruling follows on from several previous decisions of the CJEU in favour of passenger rights and will further protect passengers in clarifying a new area in passenger compensation. Nevertheless, in this case the Court offers the possibility to the air carrier to distinguish between actions which are inherent in the normal exercise of its activity and those ones which are totally beyond of its control.
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