Opinion of the Advocate General — ECLI:EU:C:2018:1040
Date: 2018-12-19
Language of the case: French
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary of the observations of the parties 5. Mr Moens submits that the spillage of fuel on a runway which caused that runway to be closed falls to be classified under the notion of an ‘event’; an event qualifies as an ‘extraordinary circumstance’ if it meets the two cumulative conditions established by the Court’s case-law. Ryanair takes the view that recital 14 of the Flight Passenger Rights Regulation may not be considered to impose a supplementary legal criterion, according to which a circumstance must also be considered to constitute an ‘event’ under that recital. The German and Polish Governments submit that the Court does not need to address Question 1. The European Commission considers that the event at issue does not constitute per se an ‘extraordinary circumstance’ and that, therefore, all the facts of the dispute should be examined. 2. Assessment 6. By this question, the referring court seeks to ascertain whether the spillage of fuel on a runway which caused that runway to be closed constitutes: (a) an ‘event’ (which may give rise to an ‘extraordinary circumstance’) or (b) an ‘extraordinary circumstance’ or (c) both at the same time (if those notions are to be conflated). 7. In its judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 22), the Court held that ‘it is apparent from [recital 14] [of the Flight Passenger Rights Regulation] that the [EU] legislature did not mean that those events, the list of which [in that recital] is indeed only indicative, themselves constitute extraordinary circumstances, but only that they may produce such circumstances. It follows that all the circumstances surrounding such events are not necessarily grounds of exemption from the obligation to pay compensation provided for in Article 5(1)(c) of that regulation’ (emphasis added) — thus requiring a case-by-case assessment. 8. In paragraph 23 of that judgment, the Court characterised as ‘extraordinary circumstances’ only circumstances ‘relat[ing] to an event which, like those listed in recital 14 [of the Flight Passenger Rights Regulation], is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin’ (emphasis added). 9. It follows from the order for reference — and it is not disputed before the Court — that it was the spillage of fuel on the runway that caused that runway to be closed for more than two hours. This closure led the airport authorities to take decisions so as to reschedule take-offs of aircraft and to attribute new time slots to them. This rescheduling caused in turn the delay in the departure of Mr Moens’s flight. 10. On the basis of the above citation from the Court’s case-law, the notions ‘event’ and ‘extraordinary circumstance’, as invoked by the referring court, are closely linked, but should not be conflated. 11. As the Commission points out, it is clear that there cannot be any extraordinary circumstance without the occurrence of an event which triggers it. However, the opposite is not always true. Indeed, the closure of a take-off runway will not necessarily trigger an ‘extraordinary circumstance’: for instance, in a situation where the airport has at its disposal other runways which may be used so as to get round that closure. It will be for the referring court to verify this issue in the context of its examination of the facts of this case. 12. This reading is implicitly confirmed by the Court’s judgment of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342, paragraph 17), in which the Court was asked a practically identical question. Question 1 referred in the present case and the questions referred in Pešková and Peška, but also in van der Lans, (3) show that national courts struggle with the wording of Article 5(3) of the Flight Passenger Rights Regulation as well as with that of its recital 14. Thus, I consider — in contrast to the German Government — that Question 1 is not merely academic and requires a clear answer from the Court. 13. Up to now the Court has answered that question merely implicitly when it held that ‘events may be classified as extraordinary circumstances, within the meaning of Article 5(3) of [the Flight Passenger Rights Regulation], if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control’ (paragraph 22 of Pešková and Peška, emphasis added). 14. Conversely, an event such as ‘the premature failure of certain parts of an aircraft does not constitute extraordinary circumstances, since such a breakdown remains intrinsically linked to the operating system of the aircraft. That unexpected event is not outside the actual control of the air carrier, since it is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business’ (paragraph 23 of Pešková and Peška, emphasis added). 15. The Court concluded that ‘Article 5(3) of [the Flight Passenger Rights Regulation], read in the light of recital 14 of that regulation, must be interpreted as meaning that a collision between an aircraft and a bird is classified under the concept of “extraordinary circumstances” within the meaning of that provision’ (paragraph 26 of Pešková and Peška). 16. When one applies the Court’s case-law cited above to the present case, it follows that the event consisting in the spillage of fuel on a runway which caused that runway to be closed does not constitute per se an ‘extraordinary circumstance’ within the meaning of Article 5(3) of the Flight Passenger Rights Regulation. Thus, in order for that event to be classified as an ‘extraordinary circumstance’, it is necessary for the referring court to examine all the facts of the case before it. B. Second and third questions 1. Brief summary of the observations of the parties 17. In relation to the second question, all the parties (save for Mr Moens) agree that the spillage of fuel on a runway which caused that runway to be closed resulting in a significant delay to a flight constitutes an ‘extraordinary circumstance’. However, the reasoning underlying this conclusion varies among the parties. 18. Ryanair considers that the condition of inherency in the normal exercise of the air carrier’s activity is neither opportune nor necessary: it does not appear in the Flight Passenger Rights Regulation and creates a state of uncertainty. Ryanair points to the problematic classification by national courts of events such as lightning strikes or bird strikes. The Court, it submits, ought to abandon this subjective and uncertain criterion, limiting itself to the criterion of ‘circumstances which could not have been avoided even if all reasonable measures had been taken’. The German Government and the Commission argue in essence that the relevant circumstance here is not the spillage of fuel on the runway, but the subsequent decision of the airport authorities to close that runway. The Polish Government expresses the view that the delay was caused by two closely linked circumstances: a malfunction of an aircraft different to the Ryanair aircraft carrying out the flight concerned and a decision of air traffic control to close the runway, both of which constitute ‘extraordinary circumstances’. By contrast, Mr Moens considers that the spillage of fuel on a runway is by nature inherent in the normal exercise of the activity of an air carrier: it is a normal event in aviation in view of the presence of valves on aircraft which are designed for avoiding excessive pressure of the fuel present in the tanks. Moreover, such a spillage is not beyond the control of the air carrier in so far as there is often a technical issue resulting from insufficient maintenance, from a premature failure of those valves or from incorrect manipulation. Mr Moens adds that in all likelihood the spillage of fuel at issue will find its source in another aircraft belonging to Ryanair, which would confirm that the air carrier had control over the situation. 19. In relation to the third question, Mr Moens, as well as the German and Polish Governments, submits in essence that the notion of ‘extraordinary circumstance’ implies that the event in question is unforeseen. The German and Polish Governments, as well as the Commission, do not see what measures Ryanair could possibly have taken to avoid the delay. Ryanair considers that, given the answer to the second question, it is necessary to assess only whether the circumstances could not have been avoided if all reasonable measures had been taken by the carrier — this, however, it submits, is a factual appreciation which is the responsibility of the referring court. 2. Assessment 20. By the second and third questions, which should be dealt with together, the referring court seeks to ascertain whether an event consisting of the spillage of fuel on a runway which caused that runway to be closed must be classified as an ‘extraordinary circumstance’ capable of exonerating the air carrier from its obligation to compensate passengers in the case where a flight operated by that carrier is subjected to a significant delay. 21. As I explained in my Opinion in Germanwings (C‑501/17, EU:C:2018:945, point 48), the Court’s case-law on extraordinary circumstances under Article 5(3) of the Flight Passenger Rights Regulation has established a two-limb test: (i) the problem must be attributable to an event — such as the events set out in recital 14 of that regulation — which is not inherent in the normal exercise of the activity of the air carrier concerned (first limb); and (ii), owing to its nature or origin, it is beyond the air carrier’s control (second limb). It should be pointed out that these two limbs (conditions) — (i) inherency and (ii) control — need to be assessed on a case-by-case basis and are cumulative. I will deal with them in turn below. (a) Inherency 22. First of all, which causal event must be taken into account in this context: the spillage of fuel or the decision to close the runway or both? 23. I consider (as do the German Government and the Commission) that the relevant circumstance here is not the spillage of fuel on the runway, but the subsequent decision of the airport authorities to close that runway — and it is not pertinent to establish the reason for that decision, as long as the closure was not foreseeable, planned or announced in advance. 24. Following the example of meteorological conditions, which may prevent the planned carrying-out of a flight, the decisions of airport authorities too may influence in an ‘extraneous fashion’ (that is to say, from the outside) the planned carrying-out of a flight. 25. As has been pointed out by the German Government, such decisions do not form part of the activities of the air carrier concerned in the context of carrying out air transport; they fall within the activities and competences of airport authorities, which must be distinguished from those of the air carrier concerned. 26. It is not necessary to know the reasons that led the airport authorities to order the closure of a runway, in so far as it is solely that decision itself that has a negative impact on the planned carrying-out of the flight concerned, whilst the air carrier has no influence over it. If the decision leads to delays or cancellations, it is in that decision that there resides an ‘extraordinary circumstance’ within the meaning of Article 5(3) of the Flight Passenger Rights Regulation. Arguably, recital 15 of the Flight Passenger Rights Regulation also supports an approach to the effect that the way in which the decision of the airport authorities was motivated is not pertinent. That recital explicitly includes as ‘extraordinary circumstances’ an ‘air traffic management decision’ in relation to a particular aircraft which gives rise to a long delay or to the cancellation of one or more flights by that aircraft. 27. Indeed, the Court has taken the view that the following circumstances do not constitute events which are inherent in the normal exercise of the activity of the air carrier concerned: the closure of (a part of) air space due to the eruption of the Icelandic volcano Eyjafjallajökull, this extraneous event falling outside the air carrier’s control (judgment of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43)); a collision between an aircraft and a bird, as well as the damage caused by it, in so far as they are not intrinsically linked to the operating system of the aircraft and are not by their nature or origin inherent in the normal exercise of the activity of the air carrier, and, furthermore, are outside its actual control (judgment of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342)); hidden manufacturing defects which affect flight safety or damage to aircraft due to sabotage or terrorism (judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771)); and I came to the conclusion in my Opinion in Germanwings (C‑501/17, EU:C:2018:945) that damage to an aircraft tyre caused by a screw lying on the take-off or landing runway comes within the scope of the notion of an ‘extraordinary circumstance’. 28. If one applies the above case-law to the present case, it is clear that a closure of a runway which was unforeseen and unannounced constitutes an ‘extraordinary circumstance’ within the meaning of Article 5(3) of the Flight Passenger Rights Regulation, in so far as it is ‘extraneous’ to the air carrier concerned — it is linked to neither the maintenance nor the proper functioning of its aircraft. 29. Moreover, I agree with the German Government that, even if the reason for the closure were to be taken into account (quod non), that would not exclude the conclusion that there is an ‘extraordinary circumstance’ here. This is so because the spillage of fuel at issue is, it appears from the order for reference, attributable to a different air carrier to the one concerned and is, therefore, beyond the latter’s responsibility (in the same way as was the decision to close the runway), and nor does it follow from the order for reference that it was the air carrier’s responsibility to clean up that spillage. (4) 30. The foregoing analysis is supported also by the Commission’s proposal COM(2013) 130 final for a new regulation amending the Flight Passenger Rights Regulation, (5) which now expressly provides a clarification to that effect: the unforeseen closure of an airport must be considered an ‘extraordinary circumstance’. (6) 31. Finally, I would point out that German case-law is particularly rich in this connection and appears to go in the same direction as the one I am proposing. (7) (b) Control 32. The Court held in the judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraphs 39 to 41), that ‘the [EU] legislature intended to confer exemption from the obligation to pay compensation to passengers in the event of cancellation of flights not in respect of all extraordinary circumstances, but only in respect of those which could not have been avoided even if all reasonable measures had been taken’. Thus, ‘since not all extraordinary circumstances confer exemption, the onus is on the party seeking to rely on them to establish, in addition, 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’. That party must establish that, ‘even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able — unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time — to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight’. 33. The Court has held that ‘Article 5(3) of [the Flight Passenger Rights Regulation] cannot be interpreted as requiring, as a “reasonable measure”, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise’ (judgment of 12 May 2011, Eglītis and Ratnieks, C‑294/10, EU:C:2011:303, paragraph 31). 34. Moreover, ‘it is for the referring court to ascertain whether, in the circumstances of the case in the main proceedings, the air carrier concerned took measures appropriate to the situation, that is to say measures which, at the time of the extraordinary circumstances whose existence the air carrier is to establish, met, inter alia, conditions which were technically and economically viable for that carrier’ (judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 42). 35. I agree with the German Government that it does not follow from the order for reference in the present case that the air carrier concerned had any advance information or indications as to the closure of the runway, which would have allowed it to take preventive measures. And even if the air carrier had had at its disposal such information, it is not clear what measures it could have effectively taken to avoid the extraordinary circumstance. In casu, the air carrier was in a situation which was exclusively passive and it was obliged to follow the instructions of the airport authorities. It follows from the file before the Court that the air carrier itself had no necessary authority which would have allowed it to take corrective measures on its own initiative — and this neither in a preventive manner (by way of taking off earlier for instance, before the runway was closed) nor a posteriori, once the decision to close the runway had been taken. Nor was it obliged or able to take active measures to obtain a new time slot as soon as possible in the context of the airport authorities’ rescheduling of planned take-offs. 36. Indeed, the air carrier is in a situation in which it does not obtain immediate information of the occurrence of the event, does not participate in deciding whether to close the runway, may not seek on its own initiative alternative solutions and is obliged to follow the instructions issued by air traffic control. 37. As pointed out by the Polish Government, in relation to the decision to close the runway, EU law itself requires that closure for the duration of the clean-up, (8) whilst the air carrier has no influence over that decision (or over the speed of that clean-up operation). 38. Importantly, in the context of assessing the reasonable measures which must be taken by the air carrier, ‘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’ (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 43). 39. Finally, I consider (as does the Commission) that the situation in the present case echoes to a certain extent recital 15 of the Flight Passenger Rights Regulation, (9) which recognises the extraordinary character of a hypothesis which is comparable to that at issue here: a situation in which an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay. 40. It follows that the condition in Article 5(3) of the Flight Passenger Rights Regulation according to which the extraordinary circumstances, and their consequences, such as a long delay, ‘could not have been avoided even if all reasonable measures had been taken’ is satisfied in the present case. As the air carrier was unable to foresee the temporary closure of the runway following the spillage of fuel on it and was unable to shorten the time period over which it was closed and to have recourse to alternative solutions, the decision of the airport authorities was beyond the control of the air carrier and could not have been avoided. IV. Conclusion 41. For those reasons, I propose that the Court should answer the questions referred for a preliminary ruling by the Justice de paix du troisième canton de Charleroi (Magistrate’s Court for the Third Canton of Charleroi, Belgium) as follows: (1) The event consisting in the spillage of fuel on a runway, which caused that runway to be closed, does not constitute per se 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. In order for that event to be classified as an ‘extraordinary circumstance’, it is necessary for the referring court to examine all the facts of the case in the main proceedings. (2) Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the spillage of fuel on a runway, which caused that runway to be closed for more than two hours and gave rise to the delay of the flight concerned, falls within the scope of the notion of ‘extraordinary circumstances’ within the meaning of that provision. This event is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control. 1 Original language: English. 2 Regulation 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 (‘the Flight Passenger Rights Regulation’) (OJ 2004 L 46, p. 1). 3 See the questions referred in the judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 18). The Court answered those questions implicitly; in a way that is analogous to the reasoning in the judgment of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342), which is discussed below. 4 Indeed, for instance, in the Netherlands, the courts have held that a technical failure, such as the leakage of kerosene, had to be regarded as a safety issue and classified as an ‘extraordinary circumstance’. See Plaintiffs v KLM Royal Dutch Airlines, Rb Amsterdam, 9 May 2007, 791233 CV Expl 06-19812; NAS a.O. v Transavia, Rb Utrecht, 27 June 2007, LJN BE9027; Rb Haarlem, 29 October 2009, LJN BG2720; Rb Haarlem, 3 October 2007, LJN AZ5828. 5 Proposal for a Regulation of the European Parliament and of the Council amending Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air. 6 Academic legal writing has also taken the view that, pursuant to the judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771), one may classify as ‘extraordinary circumstances’ the temporary closure or operating restrictions of an airport (Bartlik, M., ‘Der “außergewöhnliche Umstand” nach dem Urteil des Europäischen Gerichtshofs in der Rechtssache Wallentin-He[r]mann gegen Alitalia’, RRa, 2009, p. 278, Balfour, J., ‘The “Extraordinary Circumstances” Defence in EC Regulation 261/2004 after Wallentin-Hermann v Alitalia’, Zeitschrift für Luft- und Weltraumrecht, 58, 2009, pp. 224 and 230). 7 See the judgment of the Amtsgericht Erding (Local Court, Erding, Germany) of 18 April 2011, case 2 C 1053/11. See also other pertinent judgments of: the Amtsgericht Wedding (Local Court, Wedding, Germany) of 28 October 2010, case 2 C 115/10; the Amtsgericht Geldern (Local Court, Geldern, Germany) of 3 August 2011, case 4 C 242/09; the Amtsgericht Königs Wusterhausen (Local Court, Königs Wusterhausen, Germany) of 8 June 2011, case 9 C 113/11; the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main, Germany) of 30 January 2014, case 32 C 3328/13; the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main) of 1 August 2014, case 30 C 2922/13. 8 See paragraph ADR.OPS.C.010 ‘Pavements, other ground surfaces and drainage’, under (a) and (b), of Annex IV to Commission Regulation (EU) No 139/2014 of 12 February 2014 laying down requirements and administrative procedures related to aerodromes pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ 2014 L 44, p. 1). 9 See also point 26 of the present Opinion.