Wednesday, 26 June 2019

Runaway closure as an extraordinary circumstance - CJEU in Moens (C-159/18)

Today the CJEU followed opinion of AG Tanchev (Crying over spilled fuel...) in the case Moens (C-159/18) and decided that if there is a fuel spilled on a runway, which leads the airport to close that runway, preventing flights from take off and landing, then the impacted air carriers may invoke the defence of extraordinary circumstances from Art. 5(3) Regulation 261/2004. Provided, of course, that the fuel spillage did not originate from the aircraft of the given air carrier, as only then the reason for closing of the runway will be unrelated to their business activity and beyond of their control (para. 13). Moreover, as it is the airport's management, who is responsible for the closure of the runway and the removal of the spilled fuel, the operating air carrier is not obliged to take any reasonable steps to remove the obstacle to their flight taking place. To the contrary, they are obliged to accept the decision of the airport's management and await re-opening of the runway or opening of an alternative runway for them (para. 28). With this judgment, following on the previous Germanwings case (Loose screws of Regulation No 261/2004...), the CJEU broadens the scope of the list of extraordinary circumstances allowing air carriers to forego payment of compensation for flight delays and cancellations.

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