/ TRANSPORT NEWS / AIR CARRIER EXEMPTION: The gasoline spill resulting in the closure of a runway is an "extraordinary circumstance" exonerating the carrier from its liability to passengers

AIR CARRIER EXEMPTION: The gasoline spill resulting in the closure of a runway is an “extraordinary circumstance” exonerating the carrier from its liability to passengers

Case C‑159/18 (Mr Moens v Ryanair), 29 June 2019

“Article 5 (3) of Regulation (EC) no 261/2004 of the European Parliament and of the Council of 11 February 2004 laying down common rules on compensation and assistance to passengers in the event of refusal to board and cancellation or significant delay of a flight and repealing Regulation (EEC) no 295/91, read in the light of recitals 14 and 15 thereof, is to be interpreted as meaning that the presence of petrol on a runway at an airport the closure thereof, and, consequently, the significant delay of a flight to or from that airport falls under the concept of “extraordinary circumstances”, within the meaning of that provision, where the gasoline in question does not originate from an aircraft of the carrier that made that flight.

Article 5 (3) of Regulation no 261/2004, read in the light of recitals 14 and 15 thereof, is to be interpreted as meaning that the presence of petrol on a runway at an airport which resulted in the closure of the runway, the character of which is established as an ‘extraordinary circumstance’, 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’.

The CJEU has just handed down an important decision on the thorny issue of exemption of the air carrier due to “extraordinary circumstances” within the meaning of Article 5 (3) of Regulation (EC) no 261/2004 of 11 February 2004 on air passenger rights.
In this case, Mr Moens made a reservation with Ryanair for a flight from Treviso (Italy) to Charleroi (Belgium).

This flight was carried out on 21 December 2015 with a delay on arrival of 4 hours and twenty-three minutes, this delay having its origin in the presence of gasoline on a runway at Treviso airport resulting in the closure of said runway for a period of more than 2 hours and the postponement of the take-off of the aircraft operating the flight in question. As a result of this delay of more than three hours, Mr Moens requested Ryanair to pay the compensation of EUR 250 provided for in Article 5 (1) (c) of the Regulation. In view of the refusal of Ryanair’s claim for compensation on the ground that the significant delay in the flight was due to an “extraordinary circumstance” within the meaning of Article 5 (3) of the aforementioned Regulation, the passenger referred the matter to the Justice of the peace of the third canton of Charleroi (Belgium) for compensation.
The Belgian judges therefore referred a question to the CJEU for a preliminary ruling, namely whether or not the closure of a runway due to the presence of petrol constitutes the extraordinary circumstance for the air carrier.

Through its previous jurisprudence on the concept of extraordinary circumstances, the CJEU continues to point out that the qualification of “extraordinary circumstances” is subject to two cumulative conditions :

– The damaging event must not by its nature or cause be inherent in the normal exercise of the activity of the air carrier concerned ;

– The event must escape the effective control of the air carrier.

It should be noted that the case law of the CJEU in this area has always been very protective of passengers in that it restricted to the maximum the content of the concept of extraordinary circumstances :

– CJEU, 22 Dec. 2008, aff. C-549/07 : technical problems arising during the maintenance of aircraft or due to maintenance defects did not qualify under extraordinary circumstances.

– CJEU, ord., 14 Nov. 2014, aff. Case C-394/14, Siewert v Condor Flugdienst GmbH : impact of a moving boarding staircase against the aircraft is not an extraordinary circumstance within the meaning of Article 5 of Regulation 261/2004 because an aircraft is by definition inherent in the activity of the air carrier, hence the predictability and “surmountability” of such a shock.

– CJEU, judgment ‘Corina van der Lans v Koninklijke Luchtvaart Maatschappij’ of 17 Sept. 2015, aff. C-257/14 : this was a significant delay on arrival (more than 25 hours). The air carrier encountered unexpected technical problems and relied in its defence on the unexpected defect of the parts. Unsurprisingly, the CJEU rejects the carrier aiming to se and recalls that Article 5 of Regulation 261/2004, inherent in extraordinary circumstances, is of a strict interpretation. For the Court, a technical problem that even occurred unexpectedly and even not attributable to faulty maintenance does not fall under the concept of ” extraordinary circumstances » ;

– CJEU, 17 April 2018, aff. Case C-195/17, Krüsemann and others : a “wild strike” by the staff following the announcement of a restructuring by the air carrier does not constitute an “extraordinary circumstance” allowing it to release itself from its obligation to compensate in the event of cancellation or significant flight delays.

On the other hand, the CJEU and the Court of Cassation have also rendered a number of judgments in favour of air carriers which should be recalled.

– CJEU 31 Jan. 2013, aff. Case C-12/11, Mc Donagh v Ryanair Ltd : the closure of part of European airspace following the eruption of the Eyjafjallajökull volcano (a natural event completely beyond the control of the air carrier) was considered to be an “extraordinary circumstance” within the meaning of Regulation no 261/2004 ;

– CJEU, 4 May 2017 in case C-315/15 Marcela Pešková and Jirí Pešká v Travel Service A. S. On landing in Brno, the aircraft collided with a bird. Following several precautionary checks, the aircraft arrived at its final destination with a delay of 5: 20 a.m. Having before it a question for a preliminary ruling, the CJEU considers that ‘the collision between an aircraft and a volatile aircraft and the possible damage caused by that collision [sont] are not, by their nature or origin, inherent in the normal exercise of the activity of the air carrier concerned and are beyond its effective control’. The CJEU points out in this decision that the air carrier must make all reasonable efforts from an economic point of view to avoid the cancellation or delay of a flight.

– Cour de cassation, 12 September 2018 (17-11.361): constitutes an extraordinary circumstance, within the meaning of article 5, § 3, of Regulation (EC) n° 261/2004 of 11 February 2004, such as to exempt the carrier from payment of the compensation provided for in article 7, the fact for an aircraft to be struck. In validating the reasoning of the judges on the merits, the Court of Cassation recalls the case law Peskova and Peska of 4 May 2017 of the CJEU (“even by implementing all the means in personnel or material and financial means at his disposal, he would obviously not have been able, except to make unbearable sacrifices in view of the capabilities of his company at, avoid that the extraordinary circumstances he was faced with lead to the cancellation of the flight or to a delay of this flight equal to or greater than three hours on arrival (Pešková and Peška stop) » ;

In the judgment submitted to that commentary (C‑159/18 ” Mr Moens v Ryanair “, 29 June 2019), the European judges recalled that the “extraordinary circumstance” must be considered as such if the injurious event could not have been avoided, even if all reasonable measures had been taken by the carrier within the meaning of that provision.

The judgment is based on its own case‑law of principle on the matter (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 30) to hold that only those measures which may actually be the responsibility of the carrier, with the exception of those which fall within the competence of third parties, such as, in particular, airport managers or competent air traffic controllers (judgment of 4 May 2017, Pešková and Peška, C-315/15, EU:C:2017:342, paragraph 43).
In this “petrol spill” case, the air carrier was faced with a decision by the airport authorities to close an airport take-off runway and could therefore only comply with it and wait for the decision to end the shutdown or any alternative measure.

Therefore, the air carrier did not have the power to take any “reasonable measures” in order to avoid the extraordinary circumstance at issue, which the Court highlighted in its statement of reasons.

The Court therefore implicitly held that the concept of ” extraordinary circumstances “, within the meaning of that provision, implies that the petrol spilled must not physically come from an aircraft of the carrier in question because, in that case, the cause of the delay is necessarily inherent in the carrier itself, which is incompatible with the “extraordinary” character of this exemption which must remain exceptional, that is, external to the carrier and not dependent on its will.

The decision deserves approval since, in this case, the air carrier had strictly no material possibility to oppose the decision to close the runway.

Of course, the Court’s solution would have been different if the leak, and thus the immobilization of the runway, had been caused by the aircraft of the carrier in question.
As a reminder, even in the presence of extraordinary circumstances, the airline was not released from its obligation to take care of air passengers (meals, refreshments, etc.): CJEU, 3rd ch., 31 Jan. 2013, aff. Case C-12/11 McDonagh v Ryanair Ltd.