Extraordinary circumstances defence takes off in Europe

On 17 September 2015, the European Court of Justice (CJEU) gave judgment in Van Der Lans v KLM (C-257/14).

The hope was the CJEU would comprehensively clarify the scope of the ‘extraordinary circumstances’ and ‘reasonable measures’ defences under article 5(3) of the Flight Delay Compensation Regulation (EC) No 261/2004 – a hope largely dashed when the court potboiled the ten questions put to it into one composite question, which was namely whether the regulation ‘must be interpreted as meaning that a technical problem… which is not attributable to defective maintenance and which was not detected during regular tests falls within the definition of “extraordinary circumstances’’.’

The case involved faults with two engine components, which came to light while the plane was awaiting pushback at Quito Airport in Ecuador. Within their normal life spans, the parts failed unexpectedly. KLM had to fly in replacement parts before the aircraft could continue its journey, causing a delay of 29 hours. 

KLM argued that, for all practical purposes, it was impossible to avoid the technical failure, so it was outside their ‘actual control’ and thus an extraordinary circumstance. 

The CJEU rejected an argument that, under recital 14 of the regulation, extraordinary circumstances should comprise ‘any unexpected flight safety shortcoming’. It held that although the defects were an ‘unexpected safety shortcoming’, it was still necessary for KLM to fulfil the requirements of the well-worn test in Wallentin v Hermann (C-567/07). These were that ‘circumstances surrounding an event can only be characterised as “extraordinary” if: (1) They relate to an event which is not inherent to the normal exercise of the activity of the aircraft carrier; and (2) Are beyond the actual control of that carrier on account of its nature or origin.’ 

Normal activity

Applying this two-stage test, the CJEU ruled the defence did not apply. It held first that the failure of the components arose from the normal activity of the airline, because it is an intrinsic part of operating aircraft that unexpected component failure is a ‘matter of course’ arising from the use of the aircraft. 

It held second that the technical failure was not ‘beyond the control of the carrier’, despite KLM not having any realistic way to prevent the parts failing. The airline was deemed to have control because it had a responsibility for keeping its aircraft in a serviceable condition, equating control to the airline’s ambit of responsibility.

No explicit clarification was given as to whether both limbs of the Wallentin test must be met before an airline can qualify for the defence, but Siewert v Condor (C-394/14) implies they do (paragraph 19 of that judgment applying only the first limb of the Wallentin test when determining the given circumstances were not extraordinary).

The court also hinted that it might not allow the extraordinary circumstances defence to apply to ‘hidden manufacturing defects’ if the airline has recourse against its aircraft or parts supplier for its losses. Whether this will apply if the supplier has clauses exempting such liability is yet to be seen.

Non-EU compensation 

The CJEU also examined a little-used defence under article 3(1)(b). Incoming flights to the EU may be outside the scope of the regulation if the non-EU country from which the aircraft departs offers comparable compensation rights to those afforded by the regulation. 

The Dutch/English text of the regulation provides that the defence only applies if the passenger has actually received benefits under the non-EU compensation scheme, but the French text states the defence applies if the mere entitlement to make such a claim exists, irrespective of whether the passenger has actually received such benefits. No version of the regulation takes precedence.

However, the CJEU ruled that for this defence to apply at all, the non-EU compensation must correspond to the purpose of the compensation guaranteed by the regulation, and that the conditions of entitlement and means of implementing it are equivalent to the regulation. 

As there was no evidence to show the Ecuadorian compensation scheme was comparable to the regulation, the CJEU could not conclude that the existence of the Ecuadorian scheme excluded any claim under the regulation, and so remitted this issue back to the Dutch Court. The judgment seems to imply that the CJEU preferred the French text, but it gave no reason for doing so beyond a comment that the French edition was not in conflict with the ‘high level principle’. Possibly the only point the CJEU was making was that it did not matter for its purposes which interpretation was correct, because either way the argument for non-admissibility failed. The counter- rgument is that the French version affords greater consistency of rights.

Following Ryanair’s appeal in Kimberley Allen/Lazare v Jet2.Com; Dombovich v Wizz Air; and Kelly Barnes v Ryanair, several hundred small claims cases are subject to ongoing stays, pending this judgment which will now be lifted. SJ

Mark Walker is director of Hughes Walker Solicitors, whose firm represented the claimant in Barnes v Ryanair www.hughes-walker.co.uk