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New Ruling of the CJEU on Extraordinary Circumstances under Regulation 261/2004

New Ruling of the CJEU on Extraordinary Circumstances under Regulation 261/2004

On 26 June 2019, the Court of Justice of the European Union (CJEU) has handed down its ruling in André Moens v Ryanair Ltd (C-159/18), holding that a fuel spill on the runway of an airport which led to the runway’s closure falls within the notion of “extraordinary circumstances” within the meaning of Regulation (EC) No 261/2004 (Regulation EU261).

This judgment, which is in line with the judgment of the CJEU in Germanwings GmbH v Wolfgang Pauels (C-501/17), is notable in that the CJEU held not only that there were extraordinary circumstances present but also decided that the extraordinary circumstances in question could not have been avoided even if all reasonable measures had been taken.

Background
Mr Moens booked a flight from Treviso to Charleroi with Ryanair. The flight arrived at destination with more than three hours delay and Mr Moens claimed for compensation. Ryanair refused to pay compensation on the grounds that the delay was due to “extraordinary circumstance” with the meaning of Article 5(3) of Regulation EU261. Indeed, the delay was caused by the presence of a fuel spillage on the runway of the airport which led to the closure of the runway.

The Local Magistrates Court of the third Canton of Charleroi (Belgium) decided to stay the proceedings and to refer the following questions to the CJUE for a preliminary ruling which can be summarized as follows:

  1. “whether Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, must be interpreted as meaning that the presence of petrol on a runway which led to its closure and, consequently, the long delay of a flight to or from that airport, falls within the concept of ‘extraordinary circumstances’ within the meaning of that provision, where the petrol in question does not come from an aircraft of the carrier which operated the flight”
  2. “whether Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, must be interpreted as meaning that the presence of petrol on a runway of an airport which has led to the closure of that runway, the nature of which is established as an ‘extraordinary circumstance’, must be regarded as a circumstance which could not have been avoided even if all reasonable measures had been taken within the meaning of that provision.”

CJEU’s Ruling
In order to check whether the presence of a fuel spill on the runway, which led to its closure and, consequently, delayed the flight, falls within the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation EU26, the CJEU applied the two-limb test already identified in its previous case-law (see our previous article for more details on the two-limb test).

When applying that test, the CJEU found that the presence of a fuel spillage on the runway which led to its closure (i) is an event which is not inherent in the normal exercise of its activity by the air carrier (Inherency test), and (ii) that the presence of the fuel spillage, not caused by the airline itself, on the runway leading to its closure was outside the airline’s actual control (Control test).

However, in order to be exempted from its obligation to compensate under Article 5(3) of Regulation EU261, the air carrier must prove that the cancellation or delay of 3 hours or more is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken (hereinafter referred as the “Reasonable Measures Test”). Thus, according to the CJEU’s case law “since not all extraordinary circumstances confer exemption, the onus is on the air carrier seeking to rely on them to establish that they could not, on any view, have been avoided by measures appropriate to the situation — that is to say, by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned” (see judgment of 4 May 2017, Pešková and Peška, C‑315/15, paragraph 28). It is to be noted, as the CJEU points out in this judgment, that “only those measures which can actually be its responsibility must be taken into account, excluding those which are the responsibility of other parties, such as, inter alia, airport managers or the competent air traffic controllers”

This Reasonable Measures Test, which is generally left to the discretion of the referring national court, is interpreted very differently from one national court to another and has led to inconsistency for litigants. However, there are some extraordinary circumstances, as in this case, where it is clear from the circumstances at hand that no action can be taken by the air carrier. Examples of this might include closure of airspace, volcanic eruption, air traffic controllers strike, etc. The CJEU acknowledges this in this ruling by stating that:

“In the present case, as the Advocate General observes, in essence, in points 35 and 36 of his Opinion, faced with a decision of the airport authorities to close a runway of an airport, an air carrier is bound to comply with it and to await the decision of those authorities to reopen that runway or any alternative measure. Therefore, an air carrier, such as that at issue in the main proceedings, did not have the option of taking any reasonable measures to avoid the extraordinary circumstance in question.”

Thus, the Court answers the above-mentioned question b) as follows: “Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, must be interpreted as meaning that the presence of petrol on a runway of an airport which has led to the closure of that runway is to be regarded as a circumstance which could not have been avoided even if all reasonable measures had been taken within the meaning of that provision”.

This judgment is a step forward in the CJUE’s case law since it is the first time that the CJUE has explicitly recognized that in certain extraordinary circumstances no action can be taken by the air carrier in order to avoid the extraordinary circumstances.

By Charles Price & Sébastien Popijn

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