Hidden plane defects and cancelled flights - CJEU in C-385/23 (Finnair) and C-411/23 (D.)

This June the CJEU issued two judgments analysing the scope of the application of the 'extraordinary circumstances' exception to airlines' scope of liability for cancelled flights, where cancellation was a consequence of a hidden plane defect.  

In Finnair (C-385/23) a relatively new plane (5 months old) had a failure of a fuel gauge, which became evident during refuelling shortly before take-off. Due to flight safety concerns the flight was cancelled and passengers only flew the next day, arriving at their destination ca 20 hours late. Investigation of the defect showed that even though this plane was the first one to experience this defect, all other aircrafts of the same type suffered from this defect.

In D. (C-411/23) the carrier has received a notification of a hidden design defect in the engine from its manufacturer together with a list of restrictions on the future use of an aircraft. A few months later, the defect manifested and the engine had to be sent out for a repair. Due to a global engine shortage, engine replacement was not possible for almost a week in that plane. This meant that the passenger's flight was delayed by more than 3 hours, as an alternative aircraft had to be used to operate the flight.

Manufacturer reveals design defect after the technical failure occurred

Finnair's case is a relatively straightforward one. The CJEU confirms that the 'extraordinary circumstances' defence from Article 5(3) Regulation 261/2004 on air passenger rights applies also when the manufacturer of a plane discovers the existence of a hidden defect after that defect manifested and caused harm. The time of recognising a defect as a hidden one is irrelevant, thus this recognition does not have to precede the occurrence of a technical failure. While dealing with consequences of technical failures could normally be seen as falling within the normal exercise of airlines activity and within their control, the CJEU has previously recognised an exception for hidden manufacturing defects of planes (paras 30, 33-35).

Carrier's knowledge of the design defect before the technical failure occurred

Similarly, in D. the CJEU recalls previous case law on when technical failures may amount to 'extraordinary circumstances', i.e., when hidden design defects manifest themselves, as these are not inherent in airlines' normal activity and remain beyond their actual control (paras 34, 36-38). It then also stresses the irrelevance of the timeframe in which the manufacturer reveals the existence of a hidden defect to air carriers "since that defect existed at the time of the cancellation or long delay of the flight and the carrier had no means of control to correct it" (para 40).

This is an interesting conclusion, as we could have anticipated that if air carriers are informed about one of their aircrafts belonging to a class of planes with a hidden design defect, they would then have (some) control on the follow-up steps: repair or replacement. Taking remedial measures would also remain consistent with the objective of assuring a high level of flight safety (para 41). 

This brings us to the second part of Article 5(3) Regulation 261/2004 which only releases air carriers from their liability if they took 'reasonable measures' when extraordinary circumstances occurred, i.e. "conditions which are technically and economically viable for that carrier" (para 44). The CJEU leaves it to the national court to determine whether all reasonable measures have been taken by the carrier, both after the notification of a hidden defect and after this defect manifested itself (para 48). This could have included the airlines' capability (financial and technical) to have this engine repaired while replacing the grounded aircraft with a chartered one or by fitting a replacement engine in it (para 50). Alternatively, if this was viable, the airline could have arranged for a back-up fleet or aircraft and crew on standby (para 51). What the CJEU does not consider a reasonable measure is the airline resizing its operations just in case of a hypothetical occurrence of a defect (para 52).

Delays in luggage loading a possible extraordinary circumstance - CJEU in Touristic Aviation Services (C-405/23)

On May 16, the CJEU issued a new judgment on air passenger rights when there is a long flight delay and an airline claims extraordinary circumstances, in the case Touristic Aviation Services (C-405/23).

In a given case, the flight was delayed by 3hrs and 49 min between Germany and Greece. The delay was a result of a perfect storm of various contributing circumstances: shortages of staff in both boarding the previous flight on this route as well as in loading the baggage on the plane, but also weather conditions worsening after the plane was ready for departure. At a glance, we could then say that at least some of these circumstances (weather) could qualify as extraordinary circumstances. The main issue in this case was whether the shortage of staff provided by the operator of the airport, rather than the airline, to load the luggage on the plane, could amount to an extraordinary circumstance. If yes, this would likely lead to a delay for which the airline was  not responsible, i.e.,  not exceeding 3 hours (not long enough for compensation under Regulation 261/2004). 

The CJEU's answer is not straightforward, unfortunately. There are two conditions that need to be met: the event not falling within the normal exercise of the airlines' activity and it remaining outside the airlines actual control (para 21). It refers to its previous case law on defects in refuelling systems at the airport as amounting to an extraordinary circumstance if the defect "is the result of a general failure", in that case in the refuelling system managed by the airport (para 23 - reference to case C-308/21, SATA International - Azores Airlines). The CJEU then advises the national court to check whether the shortage of staff for the baggage loading could amount to a general failure of baggage loading operations (para 24). What is missing here is an advice as to more precise parameters that would allow to lead to the demarcation of a general failure. Regarding the second requirement, whether the airline had control over the baggage loading operations could depend, per CJEU, on whether the airline could "exercise effective control over the operator of that airport" (para 27). Could this requirement potentially create a distinction between bigger and smaller airlines, as well as airlines who have their hubs at a given airport? Finally, the national court needs to examine whether the airline could have avoided this delay by taking all reasonable measures, which can e.g. mean using services of another baggage loading service provider (para 29). This again may depend on airlines' resources, leading to a further distinction between various airlines in avoiding having to pay compensation under Regulation 261/2004.

Overall, this judgment does not introduce more legal clarity by stating that a shortage of staff in luggage loading operations could constitute an extraordinary circumstance, but not being very directive on when this could occur.

National law temporarily exempting travel organisers from full refund in cash ruled not compatible with EU law (Case C-407/21)

As expected, some of the disputes regarding the termination of travel related contracts due to the Covid-19 outbreak have arrived at the attention of the CJEU. On June 8, the Court issued two judgments establishing that national laws which temporarily exempted travel organisers from the obligation of full refund are not compatible with EU law. Here, we look at Case C-407/21.

Facts of the case 

In March 2020, at the beginning of the Covid-19 outbreak, the French Government adopted an order aimed at safeguarding the cash flow and solvency of the service providers impacted by the pandemic. The order established that ‘where a travel and holiday sales contract is ‘rescinded’ between 1 March and 15 September 2020, the organiser or retailer may offer, instead of a full refund of any payments made under the ‘rescinded contract’, a credit note [voucher] which the customer may use under certain conditions’ (para 12). The offer would be valid for 18 months and, after that period, if not accepted, the trader would have been required to provide a full refund. The provision derogated from Article 12(2) and (3) of Directive 2015/2302 on package travel and linked travel arrangements. The latter provisions, combined, establish that if the organiser or the traveller terminates the contract due to ‘unavoidable and extraordinary circumstances (…) affecting the performance of the package or which significantly affect the carriage of passengers to the destination’ the traveller is entitled to a full refund. 

Two consumer organisations (Union fédérale des consommateurs – Que choisir (UFC) and Consommation, logement et cadre de vie (CLCV)) brought an application before the referring court (Conseil d’État) against the French Minister for Economic Affairs, Finance and Recovery, requesting the annulment of the order. UFC and CLCV claimed that the order was in violation of Article 12, pursuant to which the consumer is entitled to a full refund within 14 days from the termination of the contract. The referring court noted that immediate full refunds to all consumers may have jeopardised the very existence of the operators and thus the chance for those consumers to obtain it; it stayed the proceedings and referred to the CJEU.

Can the trader provide a voucher instead of a cash refund?

 

The CJEU observes that although the Directive does not define the concept of ‘refund’, the everyday meaning of the term refers to the ‘to the fact of returning to a person a sum of money which that person has paid out or advanced to another person’ (para 25). Further, Article 12(2) and (3) refers to a payment made. According to the Court, it thus follows that the concept does refer to the return of cash. Further, the fact that the reimbursement must be made within 14 days from the termination makes it clear that the refund should consist of cash: that short period in fact guarantees that the traveller will again ‘be able to dispose freely of the sum spent on the package’ (para 30). Receiving a sum of money, writes the Court, better protects consumers than receiving a voucher, and thus ensures a higher level of consumer protection, which is the objective of the Directive (para 33). The Directive must thus be interpreted as providing that the organiser of a travel package is required to provide a full refund in the form of a sum of money. However, this does not preclude the traveller from voluntarily accepting a voucher if the option of the cash refund remains available. 

What if there is a global pandemic? 

The Conseil d’État asks the CJEU whether the Directive must be interpreted as requiring traders to provide a full cash refund within 14 days even when, because of a global pandemic, this would risk jeopardising the existence of the whole travel organisers’ sector. Preliminarily, though, the CJEU must establish whether Article 12(2) and (3)(b) on unavoidable and extraordinary circumstances applies to the French order regarding the Covid-19 outbreak. In essence, it must establish whether the pandemic can be qualified as an unavoidable and extraordinary circumstance. The Court answers the question in the positive and argues that, for sure, it must be considered that a health crisis on a global scale makes ‘it impossible to travel safely to the destination as agreed in the package travel contract’ (Recital 31, Directive). Further, the Covid-19 outbreak certainly is to be regarded as beyond the control of the traveller (Article 3(12), defining what an unavoidable and extraordinary circumstance is). Article 12 thus applies to the contracts terminated due to the global pandemic. 

 

The force majeure hypothesis and consumer protection 

The French government also argues that the Covid-19 pandemic constitutes a case of force majeure thus allowing a derogation from Article 12. However, as observed by the Advocate General, from the travaux préparatoires of the Directive it emerges that the concept of unavoidable and extraordinary circumstance was meant to replace and exhaustively implement that of force majeure (paras 55-56). That being the case, no derogation is allowed since Article 12(2) and (3) does not provide for it. Such a derogation would lower the level of consumer protection for the travellers whose contract is terminated due to the pandemic and whose circumstances are protected under Article 12 (para 61). National legislation of the sort of the French order’s is thus in violation of the Directive (para 62). 

As suggested by the Slovak Government, a force majeure claim may be used also to argue that a Member State has not complied with EU law when ‘the non-conformity of national legislation with the provisions of a directive is justified on the grounds of force majeure so as to ensure that that legislation may continue to apply during the necessary period’ (para 68). This argument cannot be applied to the French order: the latter’s application, by suspending the reimbursement obligation ‘is not confined solely to cases in which such constraints, in particular financial constraints, have actually occurred, but extends to all contracts terminated during the reference period, without taking into account the specific and individual financial situation of the travel organisers concerned’ (para 70). 

The State aid solution 

The Court further observes that the French Government, contrary to other Member States, decided not to recur to any State aid measure allowed under Article 107 (2)(b) TFEU. The use of State aid would have helped overcome the liquidity problem which the Government considered as justifying a derogation from EU law. In light of all of the above, thus, the Directive must be read as precluding Member States from temporarily releasing traders from the full refund obligation in order to overcome the solvency issue emerged due to the global pandemic. 

Principle of sincere cooperation 

Finally, the Conseil d’État asks whether a national court before which an action for the annulment of national legislation contrary EU law has been brought can adjust the temporal effects of its decision, to avoid the damages arising from the annulment. There have been cases in which this has been allowed, in the presence of ‘overriding considerations relating to the protection of the environment or to the need to eliminate a genuine and serious threat of disruption to the electricity supply’ (para 82). The CJEU though decisively excludes that a threat to the economic interests of the travel operators is comparable to a threat to the environment and electricity supply. The French Government itself had in fact noted that the damages would be ‘limited’ (para 84). In light of the principle of sincere cooperation, EU law must thus be interpreted as not allowing the national court to adjust the temporal effects of its decision on the annulment of legislation contrary to Article 12(2) to (4) of the Directive. 

The ruling emphasises the imperative nature of the provisions of the Directive and thus reinforces the pivotal role of consumers within the internal market. By receiving a full cash refund within 14 days from the termination, consumers can freely dispose of that sum and invest it in other purchasing activities not prevented from the pandemic (e.g., Amazon deliveries). Further, once again, it emerges clearly that consumer interests enjoy a prominent position in the Union and their prevalence over traders’ financial interests remains undisputed also in exceptional times such as those of the Covid-19 pandemic. This is true, in particular, when alternative measures such as State aid would have allowed the French Government to prevent the solvency issues potentially encountered by travel operators.

Workload problems in the air, nothing out of ordinary - CJEU in TAP Portugal (C-156/22 to C-158/22)

In a judgment issued today the CJEU had another chance to restrictively interpret the concept of 'extraordinary circumstances' from Regulation 261/2004. If extraordinary circumstances occur, this limits the airlines' obligation to compensate passengers of cancelled or delayed flights. 

By Andrés Dallimonti on Unsplash

In TAP Portugal judgment (joined cases C-156/22 to C-158/22) an early morning flight from Stuttgart (Germany) to Lisbon (Portugal) was cancelled due to the death of a co-pilot, which occurred earlier on the same day. Unsurprisingly, the whole crew was unfit to fly and since TAP does not have a base in Stuttgart, the replacement flight with a new crew was only managed to be arranged for late afternoon that day. The referring court found disparities between the application of the concept of 'extraordinary circumstances' to situations of unexpected illness of crew members by national courts and asked CJEU for guidance. 

Previous case law interpreted the notion of 'extraordinary circumstances' restrictively as: 1) not inherent in the normal exercise of air carrier's activity AND, 2) beyond that carrier's actual control (paras 18-19, see e.g. our comment on Airhelp case). Unsurprisingly, the CJEU declares workload planning for crew members as falling within the normal exercise of the air carriers' activity (para 21). And anyone who has ever managed staff knows that this includes anticipating and resolving unexpected absences, although luckily usually resulting from less extreme circumstances (para 22). Legally speaking, as CJEU emphasises, the reason for the unexpected absence makes no difference to the fact that the air carrier should anticipate dealing with unexpected absences (para 23). It is also irrelevant whether the absent crew member recently had been cleared medically, as unexpected illness or death may happen at any time (as morbid of a remark as it is true, para 24; this reasoning is also analogous to the one on technical defects of airplanes not constituting extraordinary circumstances even if the defect occurred in plane parts that were regularly maintained and recently checked, see e.g. van der Lans case). This means that the first condition to perceive this situation as qualifying as an extraordinary circumstances is not fulfilled. 

The CJEU consistently limits then the scope of application of the 'extraordinary circumstances', ensuring wide scope of protection offered to passengers of cancelled or delayed flights. It seems unlikely that airlines could afford to keep spare crew members at different airports to anticipate unexpected illness/death. They could though, of course, consider working with a pool of freelancing crew members, rotating between different airlines, when and as needed. The alternative is to accept the need to pay compensation to passengers, which means adding this to the flight tickets prices and/or re-negotiating insurance policies.

Strikes may spread, that's not extraordinary - CJEU in Eurowings (C-613/20)

Last week the CJEU confirmed again the strict and narrow interpretation of a 'strike' as an extraordinary circumstance that would allow airlines not to pay out compensation for cancelled or delayed flights. In the case Eurowings (C-613/12), the passenger's flight was cancelled due to a strike of the cabin crew of the operating air carrier. Eurowings tried to claim that they received a late notice about the strike pertaining also to their crews, as originally the notification mentioned only crews of Lufthansa as participating in that strike (Eurowings is a subsidiary of Lufthansa). Further, the strike was spontaneously extended and there was no reason for it, as Lufthansa gave in to the demands and announced pay rise on the day. Still, Eurowings showed they took mitigating measures and managed to arrange alternate flights for most of their traffic that day (para 10).

The CJEU first reminds that strike is inherent in the normal activity of air carriers, as this is an acceptable way for collective bargaining to manifest itself (para 20). It should also be expected that labour disputes could extend to different operating parts of a group of companies (para 23). The event was also not beyond the control of the operating air carrier, as the strike pertained to working conditions (which the air carrier may determine) and was announced (foreseeable event) (para 26). It should also be anticipated that employees of the subsidiary company may join such a strike in solidarity (para 27). The fact that the strike was unexpectedly extended is not decisive in considering whether it was within the air carrier's control (para 32). It could make such a strike unlawful, but that does not change its classification to an extraordinary event, as we found out in Krüsemann (see earlier Joint cases...).

This judgment heavily repeats previous reasoning in the case Airhelp, which we already commented on (Foreseeability...).

Re-routing: good or bad option? - CJEU in Austrian Airlines (C-826/19)

Most of us are still pretty much grounded and flights are few and far between, but as the travel sector is starting to slowly pick up passengers again, it may be worth it to look at the newest judgment on Regulation 261/2004. On 22 April the CJEU issued a judgment in the case Austrian Airlines (C-826/19). In this Austrian case the passenger claimed compensation due to the re-routing of their flight from Berlin Tegel airport to Berlin Schönefeld airport by the air carrier. This was caused by the poor weather conditions delaying the arrival of the aircraft in Vienna, with a later take off towards Berlin than scheduled, which would lead to the plane arriving at Tegel after the airport was closed for the night already. Generally, we would expect most passengers appreciating re-routing to a nearby airport, as this should avoid flight's cancellation or even really long delays. However, issues may arise, as we could see on the example of this case.

 

This case is unusual for four reasons set out below.

 

1) The delay in arrival at the Berlin airport (although the wrong one) was only 58 minutes from the scheduled arrival time.

 

The referring national court had doubts whether the flight Vienna-Berlin Tegel should be considered to be delayed or cancelled. If it was to be considered as delayed: Should the delay be calculated at the moment of landing at the alternate airport or rather when the passenger reaches the originally scheduled destination airport, or another agreed, pursuant to Article 8(3) Reg 261/2004 place?

The CJEU looks back to the judgment in the case Sousa Rodriguez (we commented on it back in 2011: More Compensation to Air Passengers...) and reminds that it is insufficient for a flight to take off according to the scheduled route, for it to be considered to be performed and not cancelled. No, the flight also needs to complete that scheduled route for this determination to be made (para 35). Consequently, if a plane is re-routed to a different airport, it cannot be considered to be performed according to the original schedule, and therefore, the original flight should generally be treated as cancelled (para 36). However, if that alternate airport is serving the same city or region, then such a determination would be contrary to the purposes of Regulation 261/2004, as it aims not only to protect passengers but also to minimise the amount of cancelled flights (paras 37-38). Therefore, air carriers should not be discouraged from re-arranging the passengers' flights to a nearby airport, if they then also cover costs of transportation to the original destination airport, pursuant Article 8(3) Reg 261/2004 (para 40). Passengers of such flights may then not claim compensation for their flights having been cancelled. That being said, if the delay in reaching the original destination airport is longer than 3 hours, then the passenger should be entitled to compensation. The CJEU then confirms that the delay should be calculated not at the moment the passengers reach the alternate airport, but rather, when they arrive either at the airport of their original destination or at another agreed with the air carrier place - when they used the alternate means of transportation to do so (para 48).

 

2) Poor weather conditions are usually perceived as an extraordinary circumstance releasing the air carrier from their compensation obligations pursuant to Regulation 261/2004. 

 

As the poor weather conditions took place during the preceding flights of the aircraft scheduled to travel from Vienna-Berlin Tegel, the question was whether the air carrier could invoke them as an extraordinary circumstance for subsequently delayed flights of the same aircraft.

This question was previously answered by the CJEU in the TAP case (see our comment: Deja Vu: Creative interpretation...), where the Court noted that provisions of Regulation 261/2004 should allow to account for an event to constitute an extraordinary circumstance not only for the flight directly affected by it, but also for the subsequent flights, for which a given aircraft was scheduled (paras 53-54). However, it is for the national court to determine whether there was a direct causal link between the extraordinary circumstance impacting one flight, and the subsequent delay or cancellation of another flight. The schedule of the aircraft should be taken into consideration in this assessment (para 56).

 

3) The passenger claimed that the air carrier was obligated to offer them free means of transportation between Schönefeld and Tegel airports, although the passenger lived only 24km away form Schönefeld airport. 

 

Here the doubts were whether re-routing took place as described in Article 8(3) Regulation 261/2004, which provision is applicable when a city is served by several airports. Doubts arose whether this provision is applicable as technically speaking Berlin Schönefeld airport is not located within the city borders of Berlin (para 19). CJEU draws attention to the fact that the Regulation does not define the notions used in this provision, thus they should be interpreted in a harmonious manner on the EU level. Therefore, it is irrelevant that national administrative rules might have placed the two airports in different regions. As long as the location of the airports is in the close vicinity to the same city, they are both serving the same city (paras 23-24). Such an interpretation allows the fulfilment of the objectives of the Regulation (assuring a high level of protection of passengers), as well as protects the interests of air carriers, as the determination of when an airport is serving a particular city or region does not depend on national administrative regulations (paras 27-29).

 

Another question asked whether the passenger should have been the one to request transportation to the original destination airport or another place, or whether the air carrier should have been the one to offer such an option.

Article 8(3) of Regulation 261/2004 obliges air carriers to cover the costs of the transport of passengers to the original destination airport or to another agreed place. This provision does not place an express obligation on the air carriers to actively, of their own initiative offer transportation to such locations, however, the Court interprets it broadly and reads such an obligation from this provision, following the protective aims of the Regulation (paras 60-63). Such an interpretation is supposed to balance interests of both passengers and air carriers. Passengers will be spared inconvenience of having to arrange for alternate means of transportation to the original destination airport and the air carriers will be able to avoid having to pay compensation by ensuring that passengers reach that original destination airport with the delay shorter than 3 hours (para 65).

4) The passenger claimed compensation from Regulation 261/2004 as a result of the air carrier breaching its obligations of care and assistance from Article 8(3) Regulation.

 

The CJEU looks back again at the Sousa Rodriguez case, in which the Court confirmed the right of passengers of cancelled and re-routed flights to claim damages (para 69). However, such damages should compensate specific costs that the passenger had to cover as a result of the air carrier not providing them with necessary care and assistance (para 70). These costs had to have been appropriate, reasonable and necessary. Consequently, a passenger may not claim compensation from Regulation 261/2004 to cover such damages, as its amount is determined in an objective way, unrelated to specific damages of each passenger (paras 71-72).

Foreseeability and controllability of strikes - CJEU in Airhelp (C-28/20)

On 23 March 2021 the CJEU issued its judgment in the case Airhelp (C-28/20), interpreting provisions of Regulation 261/2004 on air passenger rights. Specifically, this judgment confirms that in most cases the airlines will not be able to invoke strikes (industrial actions) as an extraordinary circumstance that would release them from their obligation to pay compensation to passengers of delayed or cancelled flights under Article 5 Regulation 261/2004.

This case pertained to one of many flights cancelled due to a strike of SAS pilots, which strike took place between 26 April 2019 and lasted until 2 May 2019, with more than 4000 flights having been cancelled. The strike was part of the negotiations of a new collective agreements between the pilots' trade unions and SAS. The airline considered this to be an extraordinary circumstance, i.e. a situation not falling within the normal exercise of their activity, which is the provision of air services. Arguments raised by the airlines relied on the rare occurrence of strikes in Sweden, unusual coordination between 4 trade unions to hold a simultaneous strike, which led to one of the biggest strikes ever recorded in the air transport industry (para 14). The strike was lawful, thus employees could not be ordered to return to work. Due to its scale, SAS could not reorganise its activity, either.

The CJEU reminds that the right to take collective action is one of the fundamental rights (Article 28 of the Charter), through which workers and employers may conduct collective bargaining of their working conditions, and, therefore, strikes should be seen as inherent in the normal exercise of the activity of airlines (paras 27-29). This follows the previous judgment in the case Krüsemann (see our previous post Joined cases...). Further, this strike was foreseeable, both long term, due to the fact that the previous collective agreement was terminated, and short term, after a notice was served. And if a strike is foreseeable, airlines could have taken some measures to alleviate its serious consequences, retaining some control (paras 34-35). It is irrelevant in this assessment whether the pilots' demands were reasonable or proportionate (para 38). National courts should interpret Recital 14 Regulation 261/2004, mentioning strikes as an example of an extraordinary circumstance, as requiring that a strike is external to the activity of the air carrier concerned, e.g. strike of air traffic control (para 42). If the staff of the air carrier starts a strike, this could only be classified as an extraordinary circumstance, if their demands could only be met by a public authority and not by air carriers (para 45). The last point made refers to the fact that air carriers may be expected to suffer even 'substantial negative economic consequences' when protecting consumer rights (paras 47-50), and that this should not be perceived as putting them in a weaker bargaining position with trade unions.

This last point of the judgment does not ring true, considering that any economic assessment made by the airlines as to the reasonableness of the employees' demands will need to account for the negative financial consequences to the airline of not meeting their demands. This will now undoubtedly include calculation of compensations that need to be paid out to passengers of cancelled flights. Ironically, whilst asserting that airlines retain some control over strikes, the CJEU seems to be shifting some of that control towards trade unions with this judgment.

Right to earliest re-routing confirmed - CJEU's order in Airhelp (C-264/20)

Our readers may be interested to know that on January 14 the CJEU issued an order in the case Airhelp (C-264/20), which confirmed really the already previously issued judgments on the obligations of air passengers under Regulation 261/2004, including the judgment in the recent TAP case (see our comment here Deja vu...). 

In the Airhelp case, passengers were delayed on their flight from the US to Austria with Austrian Airlines, as a part of the aircraft they were originally supposed to fly with was damaged. What happened was that when it was parked, a wing of another aircraft collided with it. The CJEU had no doubts that this was a clear example of extraordinary circumstances, as the situation was outside the operating airlines' control (para 24) and was not directly linked to the exercise of their services (para 23). 

More importantly, the CJEU highlighted again, following from the TAP case, that if the airline then re-routed passengers to their original destination by placing them on the next following flight, taking place the next day, this should be assessed from the point of view of whether it was a 'reasonable measure' pursuant to Article 5(3) allowing the airline to avoid paying compensation pursuant to Articles 5(1)(c) and 7(1) of the Regulation 261/2004. The CJEU mentions again that the airline should not limit themselves to just re-routing passengers on their next available flight (para 29) but instead, if their resources allow it (which the national court should assess - para 32), look for an option to provide a substitute aircraft or arrange for seats on flights of other airlines. Again, the re-routing is described as needing to be 'reasonable, satisfactory and the earliest possible' (para 30).

Deja vu: Creative interpretation of Regulation 261/2004 - CJEU in Transportes Aéreos Portugueses (C-74/19)

As we have previously reported (Violent passengers...), the CJEU was asked to consider the impact that an aggressive behaviour of one passenger might have on the performance of the obligations by the air carrier, when it results in a disruption of the flight. Unsurprisingly, the CJEU agreed today in the Transportes Aéreos Portugueses (C-74/19) case with the AG Pikamäe's opinion that such behaviour may entitle the air carrier to claim the occurrence of an extraordinary circumstance pursuant to Regulation 261/2004. 

The CJEU emphasised that international air carriage law intends to ensure safety of air travel and that unruly behaviour of passengers may endanger such safety (paras 39-40). Further, dealing with such unruly behaviour cannot be perceived as inherent in the normal exercise of the activity of operating air carriers (para. 41) and it is not under their control, as it is neither foreseeable nor likely to be feasible to be dealt with within limited means that the air crew has on board (para. 43). This means that both conditions for qualifying the unruly behaviour of passengers as an extraordinary circumstance have been fulfilled. This may be different only, following again on AG Pikamäe's opinion, where the air carrier had an opportunity to control this behaviour, either by anticipating it (spotting it before the flight and denying boarding to the passenger) or by not contributing to it (paras 45-47).

Moreover, if the unruly behaviour of the passenger on one flight affects passengers on subsequent flights (e.g. where the first flight was delayed in reaching its destination due to the need to disembark the aggressive passenger at a different airport and, therefore, its subsequent departure did not follow the intended schedule) and there is a direct causal link between these events, then the air carrier may invoke the extraordinary circumstance, which occurred during the first flight, as a reason not to have an obligation to compensate passengers on subsequent flights (paras 53-54).

Up to this point, the judgment was nothing if not expected. The answer to the third question posed to the CJEU is, however, surprising.

Ground-breaking interpretation of Article 5(3) Regulation 261/2004?

Article 5(3) Regulation 261/2004 allows operating air carriers to avoid the payment of the compensation under Article 7 Regulation 261/2004 to passengers of delayed or cancelled flights if there were extraordinary circumstances and the air carrier could not have avoided them even if it took 'all reasonable measures' to do so. Or at least this is how this provision has so far been interpreted. The CJEU has now decided that Article 5(3) Regulation actually states that the air carrier is only released of its compensation obligation if there were extraordinary circumstances that led to the delay or cancellation of the flight and the air carrier could not have avoided that delay or cancellation. The CJEU decided that this was indeed the meaning of the provision without either mentioning the different language versions of the Regulation (at least its Polish, German and Dutch texts clearly indicate the link between the need to take all reasonable measures to avoid extraordinary circumstances (plural) not the cancellation itself (singular)) or its legislative history. What is then the justification for this revolutionary interpretation of the provision? Just the need to ensure a high level of passenger protection (para. 58).

When we read para 57 of the judgment it still reiterates the previously expressed in case law sentiment that the air carrier is not required to take 'reasonable measures' that would not be 'appropriate to the situation'. Instead, the air carrier should use all its resources (staff, finances) without having to make 'intolerable sacrifices'. This was previously related to the air carriers need to avoid occurrance of extraordinary circumstances (see e.g. Eglitis and Ratnieks, para. 27 or Pešková and Peška paras 27-30), which could have also encompassed the need to minimise the risk of the delay, the damage to passengers (e.g. by putting some flexibility in their air schedule between departure/arrival times of aircrafts, which could have allowed for some delays due to extraordinary circumstances occurring). Now, in the following paragraph - 58 - the CJEU draws a link between the air carrier taking all these reasonable measures and providing consumers with rights under Article 8 of the Regulation (right to choose between reimbursement and re-routing), specifically the right to re-routing in a way that would prevent the delay or cancellation. Specifically, the CJEU concludes that if the air carrier does not offer to passengers a re-routing option, which is 'reasonable, satisfactory and timely', which would get passengers to their final destination without a delay, even if it involved seeking for alternative flights from other air carriers, then the air carrier failed in its obligation to take all reasonable measures to avoid a delay or cancellation of the flight, pursuant to Article 5(3) Regulation. And the latter means that the air carrier needs to pay compensation under Article 7 Regulation to these passengers (para. 61). 

Aside the lack of justification for the above-mentioned interpretative technique of Article 5(3), we could also question the use of Article 8 here, as the right to choose between reimbursement and re-routing arises when the passenger's flight has been delayed or cancelled, whilst the CJEU uses it here to argue for the need to avoid delay or cancellation.

I think we can safely anticipate the airlines questioning the reasoning of the CJEU in this judgment, as it is not less controversial than the Sturgeon case. The only saving grace for them is that they could still try to argue that e.g. trying to arrange alternative flights on other airlines for passengers of a delayed flight would ask of them 'intolerable sacrifices'. But this sounds like a heavy burden of proof to meet.

Double compensation available in case of a delayed re-routing flight: case C‑832/18 Finnair

Earlier this week, the Court of Justice delivered a judgment in case C-832/18 Finnair. The case proceeded without written opinion from the AG and concerned the interpertation  of Regulation (EC) No 261/2004 on passenger rights in the event of denied boarding and of cancellation or long delay of flights. The judgment adds another major element to the pro-consumer case law of the Court of Justice.

Facts of the case

The dispute revolved around a Finnair flight from Helsinki (Finland) to Singapore, which encourtered multiple problems. Not only was the original flight cancelled due to a technical defect, but also the alternative connection, scheduled for the next day, was delayed by almost 19 hours. The applicants brought an action in a Finnish court seeking to have the airline ordered to pay them the sum of EUR 1200 each: covering EUR 600 on account of the cancellation of the original Helsinki-Singapore flight plus additional EUR 600 on account of the delay of the subsequent Helsinki-Chongqing-Singapore re-routing flight. While Finnair agreed to award compensation of EUR 600 in respect of the cancellation of original flight, it refused to grant the second compensation claim. According to Finnair, Regulation No 261/2004 did not impose an obligation of this kind and, even if it did, the delay of re-routing flight had been caused by extraordinary circumstances (defect of an ‘on condition’ part). Interestingly, unlike the Finnish court of first instance, the Court of Justice did not find the arguments of Finnair convicing and opted for a pro-consumer reading of applicable EU law.

Judgment of the Court

Double compensation

The Court began its analysis by recalling that, pursuant to Article 5(1)(a) of Regulation No 261/2004, read in conjunction with Article 8(1), in the event of cancellation of a flight, the passengers concerned should be offered the choice between three different forms of assistance, namely either reimbursement of the ticket and, where appropriate, a return flight to the first point of departure, or re-routing to their final destination at the earliest opportunity, or such re-routing at a later date at their convenience, subject to availability of seats. Passengers in the case at hand opted for the latter form of assistance, in the course of which, however, the encountered further difficulties.

Focusing on the scope of Regulation No 261/2004, the Court found that nothing in its Article 3 suggests that the regulation should not apply to air passengers who have been transferred by the air carrier, following the cancellation of a booked flight, on a re-routing flight to their final destination. On the contrary, Article 3(2)(b) explicitly referrs to passengers who have been transferred by an air carrier from the flight for which they held a reservation to another flight, irrespective of the reason. 

Furthermore, as noted by the Court in para. 27, Regulation No 261/2004 does not contain any provision intended to limit the rights of passengers who find themselves in a situation of re-routing. Broad reading of the scope of passenger rights was further supported by the purpose of that regulation, which is to address the serious trouble and inconvenience caused by denied boarding, cancellation or long delay of flights (in the case at hand experienced twice), as well as the effectiveness of an obligation to provide assistance in the form of re-routing under Article 8(1). Consequently, a possibility of claiming double compensation in analysed conditions has been accepted.

Extraordinary circumstances

Also in the second part of the judgment the Court did not clearly side the airline, even if its findings remain at a high level of generality. The Court appears to suggest that key elements of the notion of ‘extraordinary circumstances’ have already been explained in its prior case law and it is now the task of national courts to apply them to cases before them. The Court thus began by recalling that according to Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15, by way of derogation from Article 5(1), an air carrier is to be released from its obligation to pay passengers compensation under Article 7, if the carrier can prove that the cancellation or delay of three hours or more is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken or, where such circumstances do arise, that it adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal, in order to prevent that situation from resulting in the cancellation or long delay. In doing so, the Court referred to its previous case law, on which we reported in our earlier posts (see eg Runaway closure..., Loose screws...). The Court further recalled that events may be classified as ‘extraordinary circumstances’ if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control, both conditions being cumulative (para. 38). The notion, therefore, does not include technical shortcomings inherent in aircraft maintenance, considering that breakdowns of this kind, even premature, are, in principle, intrinsically linked to the operating system of the aircraft.

In the case at hand Finnair contended that technical defect it was faced with should nonetheless be qualified as an extrordinary circumstance, considering that the affected rudder steering servo was a so-called ‘on condition’ part, which is only replaced by a new part when it becomes defective. The airline appears to have stocked up on the spare part, but a delay - related to repair itself - was nonetheless unavoidable. The Court did not expressly endorse such an interpretation, however. Rather, according to the Court, the failure of an ‘on condition’ part, which the air carrier has prepared to replace by permanently stocking a spare part, constitutes an event which, by its nature or origin, is inherent in the normal exercise of the activity of the air carrier concerned and is not outside its actual control, unless such a failure is not intrinsically linked to the operating system of the aircraft, which it is for the referring court to determine.

Violent passengers = extraordinary circumstances - AG Pikamäe in Transportes Aéreos Portugueses (C-74/19)

Last week, on 27 February, AG Pikamäe issued an opinion in a relatively weird as to facts air travel case - Transportes Aéreos Portugueses (C-74/19). A passenger in this case had a flight reservation with TAP airlines (Portuguese airlines) for a journey between Fortaleza (Brazil) and Oslo (Norway) with a connection in Lisbon (Portugal). The first flight has been delayed, as the plane, which was intended to travel between Fortaleza and Lisbon first had to make a trip from Lisbon to Fortaleza. On that journey there was, ahem, a problematic passenger who proceeded to bite (!) and attack other passengers, as well as the crew. Consequently, the flight was diverted to Las Palmas (Spain) to remove the problematic passenger. Due to the delay of that flight, the whole travel schedule of the given passenger was uprooted, and they ended up arriving in Oslo more than 24 hours after the planned arrival time.

Aggressive passenger behaviour may be seen as extraordinary circumstances

AG Pikamäe draws attention to the importance of a safe flight for EU legislator, which is both mentioned in Recital 14 of Regulation 261/2004 (unexpected flight safety shortcoming are an example of an extraordinary circumstance) and in its Article 2(j) pursuant to which denied boarding may be justified by safety concerns (paras. 30-31). Whilst aggressive behaviour of passengers has not been enumerated in any provision as a cause for safety concerns, it could fall within the scope of general safety notions of this Regulation. Moreover, Regulation 2015/2018 introduces a list of occurrences that need to be reported as they may cause a serious risk in civil aviation, amongst others in Annex I point 6(2) it mentions 'difficulty in controlling intoxicated, violent or unruly passengers' (para. 33). Regulation 2018/1139 further obliges a captain of an airplane to take any measures to minimise the consequences on the flight of a disruptive passenger's behaviour (Annex 5 point 3(g)) (para. 34). Therefore, EU legislation has previously considered aggressive consumer behaviour as a safety risk. The AG mentions also other air safety rules, which all indicate that as aggressive consumer behaviour may be considered a serious risk to air safety, it could be considered an extraordinary circumstance in the meaning of Art. 5(3) Regulation 261/2004. After all, educating or punishing of violently acting passengers should not be seen as falling within the scope of a normal activity of air carriers (paras. 41-46). Further, the air carrier has a limited option, if any, to control the behaviour of passengers on the plane (paras. 49-50). Still, AG Pikamäe indicates that if the crew was aware of the problems with the passenger's behaviour before the flight had started, then possibly the air carrier could not claim the need to divert the plane and remove the aggressive passenger as an extraordinary circumstance (para. 51). Instead, they could have denied boarding to the aggressively acting passenger.

AG Pikamäe further emphasises that already on the basis of previous case law (Peškova and Peška case as well as Germanwings case), it was apparent that the extraordinary circumstance does not have to pertain to the delayed/cancelled flight of a given passenger (para. 57 and further). A causal link between the extraordinary circumstance and the delayed/cancelled flight is sufficient (para. 59).

Does this mean that the passenger in the given case may not claim compensation? Not all is yet lost. Namely, the air carrier needs to take all reasonable measures to ensure that the extraordinary circumstance does not impact the passenger's flight (Art. 5(3) Regulation 261/2004). Here, it could perhaps not be required from TAP that they have additional planes on hold in Brazil to step in, when the original aircraft is delayed. However, AG Pikamäe draws attention to the fact that the longer the delay in reaching the final destination, the more flexibility seems to be there for the air carrier in trying to mitigate the consequences of an extraordinary circumstance, e.g. by increasing the speed of the aircraft, re-routing the passenger either within TAP or allied air carriers (here, Star Alliance) (para. 73).

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.

Strikes as extraordinary circumstances

To avoid paying compensation to passengers of cancelled flights pursuant to the Regulation 261/2004, airlines may try to claim that the cancellation resulted from extraordinary circumstances. Recital 14 enumerates strikes that affect the operation of an airline as an example of extraordinary circumstances. However, previous case law of the Court of Justice limited this exception to such strikes, which are not within the operating air carriers' control and do not consitute a part of their normal economic activity (see joined cases Krüsemann and our comment on them). Could a strike protesting the low wages paid by airlines to their employees be seen as remaining within the airline's control and falling under their normal economic activity? Ryanair seems to think so as they just paid out compensation to consumers that pursued their claims in German courts (see further Ryanair Recognizes Strikes As Reason For German Passenger Compensation). The article indicates that this may be a strategic decision from the airline to avoid a referral to the CJEU that would further specify the airlines' obligation in case of such strikes to pay compensation. This seems unlikely, as to date airlines seemed pretty keen to refer any cases, which could lead to divergent interpretations of their obligations towards passengers. What is more likely is that Ryanair did not have good arguments to present to support its claim that the strike resulted from an unreasonable position of trade unions and thus remained outside their control.

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).

Crying over spilled fuel - AG Tanchev in Moens (C-159/18)

On Wednesday AG Tanchev gave an opinion in the case Moens (C-159/18) concerning interpretation of extraordinary circumstances that Regulation 261/2004 allows the airlines to claim to avoid paying compensation for cancelled and delayed flights. In the given case, the airline claimed as an extraordinary circumstance the fact that there was a spillage of fuel on a take-off runway, which needed to be closed and cleaned for more than two hours. The flight in case ended up being delayed by over 4 hours as a result thereof.

In short, AG Tanchev recommends the Court to advise the national court that a spillage of fuel on a runway, causing its closure for more than two hours, classifies as an 'extraordinary circumstance', as the event is not inherent in the normal exercise of the activity of the air carrier and is beyond its actual control. 

This conclusion follows from seeing as an extraordinary circumstance not the event of spilling the fuel on a runway, but rather the subsequent decision of the airport authorities to close that runway. This decision was "not foreseeable, planned or announced in advance" (para. 23) and, therefore, may not be inherent in the normal exercise of the activity of the air carrier (para. 28). The reason for taking such a decision seems irrelevant to AG Tanchev (para. 26). AG Tanchev then relies on previous case law, such as McDonagh, Pešková and Peška, Wallentin-Hermann. 

I have some problems with comparing a given case to the previous case law. In the previously mentioned cases the events that were considered to qualify as extraordinary circumstances were all extraneous not only to the airline but also to other parties, upon which the air carrier could seek redress (extreme weather conditions, birds, terrorism). This is not the case here, as the air carrier could potentially claim its losses from the airport authority, or the other air carrier, whose faulty aircraft caused the spillage of the fuel (mentioned in para. 29). This route of compensation is not, however, available to the passenger. Should we, therefore, so easily exclude from the normal exercise of the activity of the air carrier having to deal with the results of the operational decisions caused by airport authorities? This would provide a significant leeway for claiming extraordinary circumstances.

The reasoning that the closing of the runway was beyond the actual control of the air carrier and that he could not otherwise accommodate passengers' timely departure is, in turn, convincing (paras. 35-36). However, the test is twofolds and the event should both not be inherent in the normal activity of the air carrier and lay beyond its actual control. As mentioned above, contrary to AG Tanchev, I would be more hesitant to recommend the national court to consider the first limb of that test as having been met.

An interesting point mentioned in the opinion is that an event such as a spilled fuel on a runway may be classified as extraordinary circumstances, but such a classification depends on all circumstances of a given case, thus should not be automatic. For example, if the airport authorities open other runways upon closing the one, which has been contaminated, there would be no need to delay or cancel flights (para. 11).

‘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. 

Joined cases Krüsemann - the Court disagrees with AG Tanchev

Dear readers, 

it feels like yesterday - and indeed it was just a couple of days ago! - that we were discussing the Advocate General's opinion in the joint cases concerning "wildcat" strikes at Tuifly. With incredible speed, the judgment was published today. 

The main question addressed in the opinion, and also the only question discussed in the judgment, is whether strikes of an airline's own personnel - and in particular informal strikes such as that at stake in the case before the Court - represented extraordinary circumstances within the meaning of the Passenger Rights Regulation. If you had read my previous post, you will know how much as a surprise the AG's opinion had come to me (and a few of my senior co-teachers in consumer and contract law to be honest!). 

Luckily, reading the Court's decision, it seems we will not have to change our teaching after all!

The decision, clearly excludes strikes arising from conflicts internal to the airline from the remit of "extraordinary circumstances"- including, for sound legal reasons, wildcat strikes. 

As to strikes in general, the Court observes that extraordinary circumstances have to meet two cumulative conditions: they must not be inherent to the normal exercise of the carrier's activity and they must not be within the carrier's sphere of control [para 32]. 

In the situation under consideration, according to the Court, it is clear that the strike action followed the unexpected announcement, by the company, of a restructuring plan. As the Commission had apparently submitted, the Court considers restructuring to be a normal component of the exercise of economic activity [para 38-40]. `To the extent that conciliatory actions on the side of the company were effectively able to stop the strike after a few days, the Court also considers the strike not to fall outside Tuifly's sphere of control [para 43-45].

With reference to the possibility of differentiating between "regular" and "wildcat" strikes, the Court raises one important point: namely, a differentiation based on what is legal and illegal industrial action in the country where the dispute originates would make passenger rights dependent on national law and give rise to discrepancies in consumer protection - something that the Regulation by its own nature seeks to eliminate [para 47].

Thus, the CJEU concludes, wildcat strikes following the announcement of a restructuring decision cannot fall within the notion of extraordinary circumstances outlined in the Passenger Rights Regulation. 

Sorry, AG Tanchev, better luck next time!     

AG Tanchev: Wild-cat strikes are extraordinary circumstances (joined cases Krüsemann)

When a large number of British Airways flights were cancelled in 2017 due to strikes of the company's personnel, the competent UK regulator advised disappointed passengers to claim compensation under the Air Passenger Rights regulation: while the point had never been expressly decided upon by the CJEU, it the restrictive way in which the concept of extraordinary circumstances had generally been applied by the court suggested that only strikes truly "external" to the airline would excuse them from paying compensation. 

The opinion issued today by AG Wahl in a number of joint cases Krüsemann brought against TUIfly suggests a different answer to this general question. 

In the case at stake, a wild-cat strike had taken place agains the carrier due to unpopular restructuring plans: without a strike being officially announced by the unions, much of the staff called in sick on a number of consecutive days, effectively disrupting the airline's operations. This is a rather specific case because, technically, strikes of this kind are not legal - which makes it harder to impute them to someone who, like the carrier, is not breaking the law. 

AG Tanchev's opinion makes at points larger, at points smaller differentiations between regular and irregular industrial action.

On the one hand, the AG argues [at para 57] that 

the objectives of Regulation No 261/2004 point toward the inclusion of ‘strikes’ within the concept of ‘extraordinary circumstances’. This is buttressed by the case-law of the Court, detailed above, at least in the context of substantial absences affecting operational capacity, on the interpretation of ‘extraordinary circumstances’ to date. 

On the other hand, the following paragraph [58] states that 

 in a Union governed by the rule of law, so-called ‘wildcat strikes’ are not inherent in the normal exercise of the activity of the air carrier concerned. They are not akin to something that is intrinsically linked to the operating system of the aircraft, so that it is inherent in the normal exercise of an air carrier’s activity. I further take the view that informing the employees of a potential restructuring did not bring the wildcat strike within the control of TUIfly, given that a wildcat strike was not the inevitable consequence of this action.

This last paragraph seems particularly focussed on the illegal nature of the strike at hand, even though the last sentence could be generalised to legal strikes - of course it was not informing employees of the restructuring that led to the strike, but the intention to do so - and this would be no less true of a "regular" strike. 

He also notes in one of the footnotes (fn 35) to the opinion that 

the conclusion to the effect that a wildcat strike is an extraordinary circumstance is in conformity with a recent Commission proposal to amend Regulation No 261/2004 which provides a non-exhaustive list of circumstances considered as ‘extraordinary circumstances’ for the purposes of the regulation. This proposal includes ‘labour disputes at the operating air carrier or at essential service providers such as airports and Air Navigation Service Providers’.

Thus, according to AG Tanchev, it seems that all strikes would fall under the notion of extraordinary circumstances.

The impact of this conclusion on consumer rights, however, is mitigated by the answer he gives to another question raised in the preliminary ruling request: when the Regulation refers to extraordinary circumstances "which could not have been avoided even if all reasonable measures had been taken", does it intend that the circumstances as such could not have been avoided, or that their consequences could not be prevented?

AG Tanchev considers the latter to be the correct interpretation: the fact that a certain event cannot be avoided does not mean that it is impossible to prevent it, through appropriate arrangements, from causing delays or cancellations. It is for the national court invested with the question to determine whether, in the circumstances of a specific case, all reasonable measures have been taken in order to prevent the unforeseen circumstances from causing significant disruptions. 

The opinion seems destined to bring about quite some forehead-scratching. On the one hand, there are bits in it that will be welcome both on the side of the industry and on that of consumer advocates; on the other hand, by making much depend on national courts' appreciation of the circumstances of a specific case, it seems destined to increase uncertainty. It also seems likely that air carriers would use the case, if the opinion were taken up by the court, to oppose all requests a prima facie denial - and then see whether consumers are going to take their claim to court. 

It remains to be seen whether the Court will follow the AG on this path.