Thursday, 22 November 2018

‘Nuts and bolts’ of extraordinary circumstances - AG Tanchev in Germanwings (C-501/17)

What happens when a tyre of an air plane gets punctured by a screw lying on a runway, damaging the plane? Is it an event that could be classified as an extraordinary circumstance releasing the airlines from an obligation to pay compensation to passengers whose flight was delayed for more than 3 hours due to the need to change the tyre? AG Tanchev addressed these questions today in the Germanwings case (C-501/17) and concluded that such an event falls within the scope of the notion of extraordinary circumstances, just as the Commission and the German and Polish governments suggested.  

AG Tanchev starts by highlighting the need for the judgment, due to the diverting national case law on what constitutes an extraordinary circumstance. The previous ECJ judgments did not clarify all matters. Technical defects of a plane remain controversial, even after the most recent judgments, such as in the Pešková and Peška case. The ECJ holds the line that a technical defect is an extraordinary circumstance if the event that caused it was not inherent in the normal activity of the air carrier and was beyond his actual control. These two requirements need to be jointly satisfied (para 41 and 48). Correctly he notes that technical defects may constitute an extraordinary circumstance also when they result from other events than hidden manufacturing defects (para 47). We could see that as well on the example of the above-mentioned case, where the defect was caused due to a bird colliding with the plane (which was seen as an extraordinary circumstance) and in case Siewert, where the mobile boarding stairs collided with the plane (which was not an extraordinary circumstance). 

AG Tanchev sees the difference between these two above-mentioned judgments in the fact that the use of mobile boarding stairs was inherent in the normal activity of the air carrier, as he willingly used such stairs. As in the given case the screw was lying on the tarmac without the knowledge of the air carrier and against his will, the damage caused by it did not qualify as falling within the normal activity of the air carrier (para 55-56). Is this argument convincing? The passenger argued that the use of runways is inherent in the normal activity of the air carrier. AG Tanchev compares it to the use of the airspace, where the collision with the bird was not perceived as ‘intrinsically linked’ to operating a plane (para 57). I am uneasy with this reasoning and this comparison. Perhaps I am mixing up the two requirements, of inherency and of control, but I see the difference between holding air carriers liable for what happened unexpectedly in the air and on the ground, and the ECJ case law to date also could be interpreted as upholding that distinction. The latter, i.e. the ground conditions, remains more controllable. It is true that the runways, their maintenance and cleaning, are under control of airport operators and not air carriers, but that could just mean that air carriers would have a redress right towards airport operators. It should not be seen, in my opinion, as taking away passenger rights, contrary to what AG Tanchev claims (para 63-64). Screws on a tarmac may not be controlled by the air carriers (para 71) but I am not sure whether they should be excluded from their operational risk, as AG Tanchev suggests. If we want to continue to interpret extraordinary circumstances narrowly and provide protection to passengers who will face delays, this case should be decided differently to what AG Tanchev suggests. Air carriers could protect themselves by holding airport operators accountable for the need to pay out any compensation to passengers in such cases.