Many factors influence whether or not a flight departs on time, with an airline having an influence on far from all matters. The delay of a flight can often not be prevented by the airline, but it is confronted with passenger claims under EC Regulation 261/2004 in case of a delay.
An update on 2 recent judgments of the Court of Justice of the EU
When can an airline appeal to the disculpation of an extraordinary circumstance (in fact a kind of force majeure) in case of flight delay? The Court of Justice of the EU (ECJ EU) handed down two new judgments on this matter in the first half of 2019. What were the Court’s considerations?
Recent judgments on flight delay ECJ EU
The Court has recently clarified in two judgments when an air carrier can invoke an extraordinary circumstance in the event of a flight delay. These are the judgments in Germanwings GmbH vs. Wolfgang Pauels (C-501/17) on 4 April 2019 and André Moens v. Ryanair Ltd. (C-159/18) on 26 June 2019.
Air carrier not liable for financial compensation
In both cases, the ECJ ruled that the air carrier concerned was not required to pay financial compensation under Article 7 of EC Regulation 261/2004 for the flight delay. In both proceedings it was held that the flights had been delayed as a result of an exceptional circumstance under Article 5(3) of the aforementioned Regulation.
Definition of exceptional circumstance in the event of flight delay
In the Germanwings vs. Pauels judgment, the Court considered that an air carrier is not obliged to pay compensation if it can prove that the cancellation or delay is caused by an extraordinary circumstance which could not have been avoided even if all reasonable means had been employed. According to the Court, the air carrier must prove that it has taken measures appropriate to the situation using all the material, financial and human resources at its disposal. It is not necessary to make sacrifices which are unacceptable from the point of view of the capabilities of the air carrier’s undertaking at the relevant time.
Flight delay due to a screw on the runway
In this judgment, airline Germanwings invoked the disculpation of the extraordinary circumstance, since the flight had been delayed as a result of a tyre being damaged by a propeller on the runway.
The Court considered that airlines regularly have to deal with damaged tyres. However, damage to a tyre caused by a collision with a foreign object on the runway of an airport is by its nature not inherent in the normal exercise of the airline’s activities. This is because the tyre defect caused by a collision with a foreign object is not a defect originating in the aircraft itself. Moreover, the responsibility for the maintenance of the runways lies with the airport. This therefore falls outside the competence and sphere of influence of the airline.
The collision with a foreign, external object that is not used for the operation of the flight therefore generates an extraordinary circumstance as a result of which the airline does not have to pay compensation if a flight delay occurs in these cases.
Flight delay due to petrol on the runway
The Moens vs. Ryanair judgment concerned the delay of a flight due to petrol on the runway of Treviso airport. The runway was temporarily closed by the airport authorities to clean the runway. Passenger Moens claimed compensation for the flight delay.
The ECJ EU considered that petrol on a runway – which does not originate from the aircraft that carried out the flight – is not inherent in the nature or origin of the normal operation of the airline concerned (Germanwings judgment). Nor is it related to the operation of the aircraft on which the flight was operated. In addition, the air carrier cannot exercise any real influence in this respect either, since the maintenance of the runways falls outside its competence. In this case, the airline could do nothing other than await the decision of the airport authority to reopen the runway or to take an alternative measure. In short, petrol on the runway, which does not originate from the aircraft which carried out the flight and as a result of which the runway is closed, is also qualified as an extraordinary circumstance on which an air carrier can rely in the event of a flight delay.
Information
This article was written by LVH advocaten who regularly assists various airlines in the handling of compensation claims.
