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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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