West Law Report

Aircraft technical problem is not ‘extraordinary’

Posted in Court of Justice of the European Communities (ECJ) (cas, Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 16, 2009

Aircraft technical problem is not ‘extraordinary’
Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA in the Court of Justice of the European Communities

Court of Justice of the European Communities
Published February 16, 2009
Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA
Case C-549/07
Before K. Lenaerts, President of Chamber and Judges T. von Danwitz, E. Juhász, G. Arestis and J. Malenovský
Advocate-General E. Sharpston
(No opinion delivered)
Judgment December 22, 2008

A technical problem in an aircraft which led to the cancellation of a flight did not constitute a sufficiently extraordinary circumstance to justify the carrier refusing to pay compensation to passengers unless the problem stemmed from events which, by their nature or origin, were not inherent in the normal exercise of the carrier’s activity and were beyond its actual control.

The Fourth Chamber of the Court of Justice of the European Communities so ruled, inter alia, when giving a preliminary ruling under article 234 EC, pursuant to a reference by the Handelsgericht, Wien, Austria, on questions of interpretation of Regulation (EC) No 261/2004 of the European Parliament and of the Council of February 11, 2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L46/1).

The claimant booked three flights with the defendant from Vienna to Brindisi via Rome, the first flight being scheduled to depart from Vienna at 6.45am and the third to arrive in Brindisi at 10.35am the same day.

Five minutes before the aircraft was due to leave Vienna, the passengers were informed that the flight had been cancelled. The claimant was transferred to another flight to Rome, but only arrived there after the departure of the original connecting flight to Brindisi, and consequently did not arrive in Brindisi until 2.15pm.

The cancellation of the Vienna-Rome flight was due to a turbine failure in an engine which had been discovered during a check the day before and had been notified to the defendant at 1.00am on the day of the scheduled flight.

The claimant sought €250 compensation from the defendant under articles 5(1) and 7(1) of Regulation 261/2004, and in the course of proceedings brought by her after her request was refused, the European Court was asked to rule on the question, inter alia, whether a technical defect in an aeroplane, in particular damage to the engine, came within “extraordinary circumstances” in article 5(3).

Article 5 of the Regulation provides: “(1) In case of cancellation of a flight, the passengers concerned shall … (c) have the right to compensation by the operating air carrier in accordance with article 7, unless: … (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to … reach their final destination less than two hours after the scheduled time of arrival…

“(3) An operating air carrier shall not be obliged to pay compensation in accordance with article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken…”

Article 7 provides: “(1) Where reference is made to this article, passengers shall receive compensation amounting to: (a) €250 for all flights of 1,500 kilometres or less…”

Recital 14 in the preamble states: “As under the [Montreal Convention for the Unification of Certain Rules for International Carriage by Air of May 28, 1999, signed and approved for the European Community by Council Decision 2001/539/EC of April 5, 2001 (OJ 2001 L194/38)], obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

“Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.”

In its judgment, the Fourth Chamber of the Court of Justice held:

“Extraordinary circumstances” was not defined in the 2004 Regulation, but the phrase was to be interpreted narrowly since article 5(3) constituted a derogation from the principle, indicated in recitals 1 and 2 of the preamble, of protection of consumers, in as much as cancellation of flights caused serious inconvenience to passengers.

It was apparent from recital 14 in the preamble that the legislative intention was not that the events mentioned there, the list of which was only indicative, themselves constituted extraordinary circumstances, but only that they could produce such circumstances.

It followed that all the circumstances surrounding such events were not necessarily grounds of exemption from the obligation to pay compensation.

Although the list included “unexpected flight safety shortcomings” and although a technical problem in an aircraft could be among such shortcomings, the fact remained that the circumstances surrounding such an event could be characterised as extraordinary within article 5(3) only if they related to an event which was not inherent in the normal exercise of the activity of the air carrier concerned and was beyond the actual control of that carrier on account of its nature or origin.

Air carriers were inevitably confronted with technical problems as a matter of course in the exercise of their activity, and it was in order to avoid such problems and to take precautions against incidents compromising flight safety that aircraft were subject to regular checks which were particularly strict, and were part and parcel of the standard operating conditions of air transport undertakings.

The resolution of a technical problem caused by failure to maintain an aircraft was therefore to be regarded as inherent in the normal exercise of an air carrier’s activity, and consequently, technical problems which came to light during maintenance of aircraft, or on account of failure to carry out such maintenance, could not constitute, in themselves, “extraordinary circumstances”.

However, it could not be ruled out that technical problems were covered by those exceptional circumstances to the extent that they stemmed from events which were not inherent in the normal exercise of the activity of the carrier and were beyond its actual control, for example, if it was revealed by the aircraft manufacturer or a competent authority that aircraft already in service were affected by a hidden manufacturing defect which impinged on flight safety, or where damage to the aircraft was caused by acts of sabotage or terrorism.

For reasons stated by it, the court held that the Montreal Convention, article 19 of which provided for exemption of a carrier from liability for damage occasioned by delay “if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”, was not determinative of the interpretation of the grounds of exemption under article 5(3) of the Regulation.

On those and further grounds stated by it the Court ruled:

1 Article 5(3) of Regulation 261/2004 was to be interpreted as meaning that a technical problem in an aircraft which led to the cancellation of a flight was not covered by the concept of “extraordinary circumstances” within the meaning of that provision, unless that problem stemmed from events which, by their nature or origin, were not inherent in the normal exercise of the activity of the air carrier concerned and were beyond its actual control.

The Montreal Convention was not decisive for the interpretation of the grounds of exemption under article 5(3) of Regulation 261/2004.

2 The frequency of the technical problems experienced by an air carrier was not in itself a factor from which the presence or absence of “extraordinary circumstances” within the meaning of article 5(3) could be concluded.

3 The fact that an air carrier had complied with the minimum rules on maintenance of an aircraft could not in itself suffice to establish that the carrier had taken “all reasonable measures” within the meaning of article 5(3) and, therefore, to relieve the carrier of its obligation to pay compensation under articles 5(1)(c) and 7(1).

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