| AIRCRAFT — Carriage by air — Carrier’s obligation to compensate passengers for cancellation of flight — No obligation if cancellation caused by “extraordinary circumstances” — To what extent technical problem revealed in routine check “extraordinary circumstance” — European Parliament and Council Regulation (EC) No 261/2004 on compensation to passengers in event of inter alia cancellation of flights, art 5(3)
Wallentin-Hermann v Alitalia—Linee Aeree Italiane SpA (Case C-549/07); WLR (D) 3
ECJ: President of Chamber Lenaerts, Judges von Danwitz, Juhász, Arestis and Malenovský: 22 December 2008
A technical problem such as an engine defect that came to light during a routine check on an aircraft and resulted in cancellation of a flight did not normally justify the carrier in refusing to pay compensation to passengers on the ground that the flight had been cancelled owing to “extraordinary circumstances”.
The Fourth Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference for a preliminary ruling by the Handelsgericht Wien, Austria.
Art 5(1)(c) of Regulation No 261/2004 (“the Regulation”) entitles passengers to compensation on the cancellation of a flight in accordance with art 7 (which specifies the amount of compensation, depending inter alia on the length of the flight), unless, inter alia, where they are informed of the cancellation less than seven days before the scheduled departure time, they are offered an alternative flight which inter alia arrives at the final destination less than two hours after the scheduled time of arrival, but by art 5(3), the carrier is absolved from the obligation to pay compensation if it can prove that the cancellation was “caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. The Montreal Convention of 28 May 1999 for the Unification of Certain Rules for International Carriage by Air also contains provisions on limitation of a carrier’s liability for damage occasioned by delay.
Five minutes before the scheduled time of departure of a flight from Vienna on which the claimant was booked, the passengers were informed by the defendant carrier that the flight had been cancelled. In consequence, the claimant arrived at her final destination in Italy some 3½ hours after her scheduled arrival time. The reason for the cancellation of the flight was an engine defect that had been discovered during a routine check of the aircraft. In an action by the claimant following the defendant’s refusal to pay her compensation, the question was referred to the European court, inter alia, whether a technical defect in the aeroplane, and in particular damage to the engine, constituted an “extraordinary circumstance” within art 5(3) of the Regulation.
THE COURT, for reasons stated by it, ruled as follows. (1) Art 5(3) of the Regulation meant that a technical problem in an aircraft which led to the cancellation of a flight was not covered by the concept of “extraordinary circumstances” within the meaning of that provision, unless that problem stemmed from events which, by their nature or origin, were not inherent in the normal exercise of the activity of the air carrier concerned and were beyond its actual control. The Montreal Convention was not decisive for the interpretation of the grounds of exemption under art 5(3) of the Regulation. (2) The frequency of the technical problems experienced by an air carrier was not in itself a factor from which the presence or absence of “extraordinary circumstances” within the meaning of art 5(3) could be concluded. (3) The fact that an air carrier had complied with the minimum rules on maintenance of an aircraft could not in itself suffice to establish that that carrier had taken “all reasonable measures” within the meaning of art 5(3) and, therefore, to relieve that carrier of its obligation to pay compensation.
|
