Thursday, 4 April 2019

Loose screws of Regulation No 261/2004 - CJEU in Germanwings (C-501/17)

Today the Court issued its judgment in the case Germanwings (C-501/17), on whether a delay of an airplane, which was caused due to a loose screw lying on a runway, which damaged the plane's tyre, should be attributed to an extraordinary circumstance (which remains undefined in the Regulation itself) (see more on the facts of the case in our comment on the opinion: 'Nuts and bolts' of extraordinary circumstances...).

The Court's answer favours operating air carriers, as it attributes damage to airplanes, caused by foreign objects lying on an airport runway, to extraordinary circumstances, releasing them from an obligation to pay compensation to passengers pursuant Article 5(3) Regulation No 261/2004 (para. 26). Such an event is seen as not inherent in the normal exercise of air carrier's activity or as within their control. It is up to the air carriers to prove that the sole reason of the damage to the tyre was indeed the presence of a foreign object on the runway (para. 24). However, the Court draws attention to the second part of this provision, which requires air carriers to take all reasonable measures to avoid flight cancellation (or delay pursuant to previous case law of CJEU) (para. 31). Focus on this requirement leads the Court to imposing a compensation obligation on the air carriers, even if the flight was delayed due to an extraordinary circumstance, if the air carriers could not prove that they did their best (in terms of devoting resources, such as staff or equipment, and money) to repair the damage to the plane as soon as possible, in order to limit the delay. In this particular case, the Court seems to suggest that it might have been reasonable to expect from the air carrier to have a contract with air maintenance companies for changing its tyres under priority conditions, even if it could have led to additional expenses (para. 32).

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