The Interpretation of ‘extraordinary circumstance’ in Air Passenger Rights in recent CJEU case-law

Author: Ann Bugeja

Flight cancellations and delays are not a novel concept. Luckily, the EU Regulation 261/2004 provides rules and conditions whereby passengers can seek compensation and assistance in cases of cancellation or long delays. The regulation is arguably ambitious, in that it grants the ordinary passenger a set of rights which in turn, imposes legal obligations on the airline to cater for those same rights.

It provides that in the case of an ‘extraordinary circumstance’ an airline shall have no legal obligation to pay the compensation stipulated in Article 7 of the same regulation, if proven that the cancellation was caused by an extraordinary circumstance which could not have been avoided even if all standard and reasonable measures are taken. This brings the question as to what qualifies as an ‘extraordinary circumstance’?

This question was brought up in the case Germanwings GmBH vs. Wolfgang Paules. The situation arose on the 28^th of August 2015, the defendant, Mr. Pauels booked a flight with the plaintiff company, Germanwings GmBH which was delayed for 3 and a half hours as a result of a screw being found in a tyre of the aircraft which was set for take-off, while preparations for take-off of the flight were being made. The German Courts decided in favour of Mr. Pauels, and followed the rule, as prescribed by the aforementioned regulation, Article 7(1) (1) that where a passenger is entitled to compensation, they shall receive compensation amounting to EUR 250.00 if the flight distance between the destination of departure and the destination of arrival is, or less than, that of 1,500 kilometres.

The case was however appealed by Germanwings GmB and the German Courts made a preliminary reference to the European Court of Justice. The reason for this was to ascertain the considered outcome of the case after the interpretation on Regulation No 261/2004. However, there were similar, yet conflicting proceedings which gave different interpretations as to what amounts to an ‘extraordinary circumstance’ for a flight to be delayed or cancelled. To answer this question, the CJEU had to make reference to previous case law to examine what was previously interpreted to be qualified as an ‘extraordinary circumstance’ and to see if the circumstances that lead to this incident were inherent or common practice of the activity of the airline concerned and if they go beyond the carrier’s actual control.

The Court also took into consideration whether the malfunctioning of the aircraft was a result of a sole foreign object, which in turn must be proven by the air carrier, the malfunctioning cannot be interpreted to be linked to the operating system of the aircraft. In conclusion, it also established that the burden of proof lies on the defendant air carrier to prove that it made use of all its resources and staff or equipment at its disposal to avoid the changing of the object lying on the runway and to prevent the foreseeability of a delay. As a result, from these following observations, the Court ruled that such a situation falls within the meaning of ‘extraordinary circumstances’ as stipulated by Article 5(3) however, to be released from the legal obligation established in Article 7 of the Regulation, the burden of proof to show that every measure possible has been done,  lies on the air carrier.

It is to be said that the judgement has set precedent for similar cases, mainly for the very reason that since the regulation poses no definition as to what constitutes an ‘extraordinary circumstance’ the CJEU analyses the merits of the case and elaborates on what can be considered as an ‘extraordinary circumstance’. However, it can be interpreted to limit the consumer rights granted to the ordinary passenger, thus, limiting the criteria by which passengers may claim compensation. The aviation sector is of imperative significance, not just to Malta as a member state of the European Union, but of the European Union as a whole, deeming 2.1% of the European Union’s GDP and therefore, there must be a balance between consumer protection in and limiting financial burdens on airlines.

Should this happen to me, what steps can I take and what damages can I be awarded?

As aforementioned, while  Regulation 261/2004 is somewhat ambitious, a contributing factor for this train of thought is that its ultimate priority is to protect the rights of air passengers by setting the bar and imposing a legal obligation of care on the air carrier. The Directive entitles the passenger in the case of a delay, cancellation, overbooking of a flight or a connection flight, the following compensation:

• In the case of a flight less than or up to 1500km: EUR 250.00
• In the case of a flight up to 3500km: EUR 400.00
• In the case of a flight longer than 3500km: EUR 600.00[1]

There are many forms of redress that one can pursue if they believe that their rights have not been looked upon. The first step is to file a complaint with an airline and/or the national enforcement body of a Member State to lodge a complaint in the case of denied boarding, downgrading, cancellation or a long delay of their flight, which in the case of Malta, is the Malta Competition and Consumer Rights Authority. Despite this, while it gives the national enforcement body the discretion to monitor activities in order to uphold consistency in the safeguarding of passengers’ rights, it is to be said that the Regulation does not pose a requirement on the national enforcement body to take enforcement action against an air carrier with a view to compel them to pay the compensation in question.

Alternatively, the person complaining may also resort to alternative dispute resolution, or in the case of airline tickets which were purchased online, submitted via the Online Dispute Resolution platform. Should one prefer a formal legal action and present a claim for compensation under European Union Law, the person can make use of the European Small Claims procedure. [2]

Should you require more information about how GVZH Advocates can assist you with your rights, please get in touch with us on aviation@gvzh.mt

[1] Directive 261/2004

[2] https://europa.eu/youreurope/citizens/travel/passenger-rights/air/index_en.htm#next-steps