# C_2009044EN.01003201.xml

| 21.2.2009 | EN | Official Journal of the European Union | C 44/32 |
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21.2.2009

EN

Official Journal of the European Union

C 44/32

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 December 2008 — Friedrich Schulze, Jochen Kolenda, Helmar Rendenz v Deutsche Lufthansa AG

(Case C-529/08)

(2009/C 44/52)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Claimants: Friedrich Schulze, Jochen Kolenda, Helmar Rendenz

Claimants:

Defendant: Deutsche Lufthansa AG

Defendant:

Questions referred

| 1. | Can a technical defect which causes a cancellation be an extraordinary circumstance within the meaning of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1)? |
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1.

Can a technical defect which causes a cancellation be an extraordinary circumstance within the meaning of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1)?

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| 2. | If so, does the concept of an extraordinary circumstance in the form of a technical defect include also those faults which affect the airworthiness of the aircraft or the safe completion of the flight? |
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2.

If so, does the concept of an extraordinary circumstance in the form of a technical defect include also those faults which affect the airworthiness of the aircraft or the safe completion of the flight?

| 3. | Has the operating air carrier taken all reasonable measures where it has complied with the manufacturer's servicing and maintenance programme for the aircraft in question and with the safety standards and instructions of the competent authority or manufacturer, or where the fault could not have been avoided even if the carrier had complied with that programme or those directions? |
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3.

Has the operating air carrier taken all reasonable measures where it has complied with the manufacturer's servicing and maintenance programme for the aircraft in question and with the safety standards and instructions of the competent authority or manufacturer, or where the fault could not have been avoided even if the carrier had complied with that programme or those directions?

| 4. | If the answer to question 3 is in the affirmative, is that sufficient to release the air carrier from its obligation to pay compensation, or is further evidence required that the cancellation, that is to say, the fact of the relevant aircraft being taken out of operation and the cancelling of the flight owing to the lack of a replacement aircraft, would also not have been avoided by the taking of all reasonable measures? |
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4.

If the answer to question 3 is in the affirmative, is that sufficient to release the air carrier from its obligation to pay compensation, or is further evidence required that the cancellation, that is to say, the fact of the relevant aircraft being taken out of operation and the cancelling of the flight owing to the lack of a replacement aircraft, would also not have been avoided by the taking of all reasonable measures?

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(1)  OJ 2004 L 46, p. 1.

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