Summary;Judgment — ECLI:EU:C:2024:497
Date: 2024-06-13
Language of the case: Finnish
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Finland

Translation C-385/23 – 1 
Case C-385/23 
Request for a preliminary ruling 
Date lodged: 
22 June 2023 
Referring court: 
Korkein oikeus (Finland) 
Date of the decision to refer: 
22 June 2023 
Applicant: 
Passenger A 
Defendant: 
Finnair Oyj 
  
KORKEIN OIKEUS  ORDER   [– –]  
      DATE   [– –]   
      22 June 2023      
 
APPLICANT:  Passenger A 
DEFENDANT:  Finnair Oyj 
SUBJECT MATTER: Dispute concerning a contract for services 
DECISION OF THE KORKEIN OIKEUS (SUPREME COURT) 
Subject matter of the proceedings 
1 This case concerns the interpretation of Article 5(3) of Regulation (EC) 
No 261/2004 of the European Parliament and of the Council establishing common 
rules on compensation and assistance to passengers in the event of denied 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 6. 2023 – CASE C-385/23 
 
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boarding and of cancellation or long delay of flights, and repealing Regulation 
(EEC) No 295/91 (OJ 2004 L 46, p. 1). It falls to be decided whether the airline 
has an obligation to pay the passenger the lump-sum compensation provided for in 
Article 7 of Regulation No 261/2004, or whether the situation in question 
constituted an extraordinary circumstance, within the meaning of Article 5(3) of 
that regulation, which exempts [the airline] from the obligation to pay 
compensation and could not have been avoided even if all reasonable measures 
had been taken. 
Relevant facts 
2 Passenger A had booked with Finnair Oyj a flight from Helsinki to Bangkok on 
25 March 2016. The flight was to be operated by an Airbus A350 which had been 
in service for 5.5 months. During refuelling shortly before take-off, the system for 
measuring the quantity of fuel in the aircraft malfunctioned. That defect was 
considered so fundamental to the safety of the flight that the flight operated by the 
aircraft in question was cancelled and was operated by a replacement Finnair 
aircraft on 26 March 2016. The flight reached its destination some 20 hours late. 
3 The type of aircraft used was new and the fault was unknown before the 
aforementioned incident during which the malfunction occurred for the first time 
anywhere in the world. Consequently, neither the aircraft manufacturer nor the air 
safety authority had reported the fault. The investigation into the cause of the 
malfunction was launched immediately. After about a day, the fault was rectified 
by removing the fuel from the fuel tank and refilling it. The aircraft was then 
airworthy again. Subsequent investigations by the aircraft manufacturer revealed 
that the aforementioned malfunction in the fuel quantity measurement system was 
due to a hidden design defect affecting the entire aircraft type. 
4 The aircraft type in question continued to fly for several months before a software 
update in February 2017 eliminated the fault for good. Since then, there have been 
no further such malfunctions on the Airbus A350. 
Procedure 
5 Passenger A brought before the Käräjäoikeus (District Court) an action against 
Finnair Oyj for lump-sum compensation in the amount of EUR 600 under 
Regulation No 261/2004. Finnair Oyj contested that action. It argued that the 
incident in question had been due to a hidden design defect which constituted for 
the airline an extraordinary circumstance within the meaning of Article 5(3) of 
that regulation. What is more, it had taken all reasonable measures. 
6 The Käräjäoikeus considered that Finnair Oyj should have expected, when using a 
new aircraft type, to be faced with difficult to predict repair needs arising from 
design and manufacturing defects such as the one at issue. Such breakdowns are 
inherent in the normal activity of an airline, and the mere fact that the aircraft 
manufacturer had not given the airline any instructions on how to proceed in the 
FINNAIR 
 
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event of the occurrence of such a defect did not make that incident extraordinary. 
The Käräjäoikeus upheld the action. 
7 Finnair Oyj appealed the judgment of the Käräjäoikeus to the Hovioikeus (Court 
of Appeal). The Hovioikeus found that there had been an unexpected flight safety 
shortcoming. It its view, since the malfunction was not inherent in the normal 
exercise of the activity of Finnair Oyj and was beyond the actual control of that 
carrier on account of its nature or origin, the incident constituted an extraordinary 
circumstance. The Hovioikeus released Finnair Oyj from the obligation to pay A 
compensation for the flight delay. 
8 The Korkein oikeus allowed A’s appeal to proceed. A reasserted his claim for 
compensation and Finnair Oyj contended that that claim should be dismissed. 
Applicable legislation 
9 According to Article 5(1)(c) of Regulation No 261/2004, subject to certain 
exceptions, passengers have the right to compensation by the operating air carrier 
in accordance with Article 7. According to Article 5(3) of that regulation, an 
operating air carrier is not to be obliged to pay compensation in accordance with 
Article 7 if it can prove that the cancellation is caused by extraordinary 
circumstances which could not have been avoided even if all reasonable measures 
had been taken. 
10 In accordance with settled case-law of the Court of Justice of the European Union, 
passengers whose flights are delayed by three hours or more may be treated, for 
the purposes of the right to compensation provided for in Article 7 of the 
aforementioned regulation, as passengers whose flights are cancelled (judgment of 
19 November 2009, Sturgeon and Others, C-402/07 and C-432/07, 
EU:C:2009:716, paragraph 69). 
11 The term ‘extraordinary circumstances’ is not defined the aforementioned 
regulation. Recital 14 of that regulation states that such circumstances may, in 
particular, occur in cases of political instability, meteorological conditions 
incompatible with the operation of the flight concerned, security risks, unexpected 
flight safety shortcomings and strikes that affect the operation of an operating air 
carrier. 
Need for the request for a preliminary ruling 
12 In the civil case pending before the Korkein oikeus, the adoption of a reasoned 
decision calls for the interpretation of Article 5(3) of Regulation No 261/2004 
with respect to the conditions under which a hidden design defect may be 
regarded as an extraordinary circumstance. In that case, it has been noted that 
courts in other Member States of the European Union have also adopted decisions 
on claims for compensation for flight delays caused by the same defect. 
REQUEST FOR A PRELIMINARY RULING OF 22. 6. 2023 – CASE C-385/23 
 
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13 The Court of Justice of the European Union has commented in several decisions 
on the question of whether technical problems constitute extraordinary 
circumstances. In its decision in van der Lans (judgment of 17 September 2015, 
van der Lans, C-257/14, EU:C:2015:618) the Court held that, since the 
functioning of aircraft inevitably gives rise to technical problems, air carriers are 
confronted as a matter of course in the exercise of their activity with such 
problems (paragraph 37). However, certain technical problems may constitute 
extraordinary circumstances. That would be the case in the situation where it was 
revealed by the manufacturer of the aircraft comprising the fleet of the air carrier 
concerned, or by a competent authority, that those aircraft, although already in 
service, are affected by a hidden manufacturing defect which impinges on flight 
safety (paragraph 38). In the van der Lans case, the Court considered it relevant 
that neither the manufacturer of the aircraft in the fleet of the air carrier concerned 
nor a competent authority had disclosed that not only that specific aircraft but also 
others in the fleet were affected by a hidden manufacturing defect affecting the 
safety of flights (paragraphs 39 and 40). 
14 In its more recent case-law, (see, for example, the judgment of 7 July 2022, SATA 
International – Azores Airlines, C-308/21, EU:C:2022:533, paragraph 25), the 
Court noted that, when it comes to assessing the concept of ‘extraordinary 
circumstances’, events whose origin is ‘internal’ must be distinguished from those 
whose origin is ‘external’ to the operating air carrier. That concept thus 
encompasses, by way of the occurrence of such ‘external’ events, those which 
result in part from the activity of the air carrier and in part from external 
circumstances which are more or less frequent in practice but which the air carrier 
does not control because they arise from a natural event or an act of a third party, 
such as another air carrier or a public or private operator interfering with flight or 
airport activity. 
15 The assessment of the case to be disposed of here raises the question as to how the 
foregoing is to be interpreted in the case where the flight delay is attributable in 
the first place to a defect which occurred for the first time only on the aircraft 
concerned, which had not previously been discovered by either the aircraft 
manufacturer or the competent authority, but which was later identified by the 
manufacturer as being a hidden design defect affecting the entire new aircraft 
type. 
16 The Korkein oikeus considers it to be open to interpretation whether a technical 
problem such as that at issue in the present case, which occurred on a new aircraft, 
is to be regarded as an ‘external’ or ‘internal’ event. Is an event to be classified as 
‘external’ solely because it became apparent, after the defect had been identified, 
that other aircraft of the type concerned were also affected by the same flight 
security shortcoming? By extension, is the mere fact that the manufacturer 
subsequently discovered that the defect is a ‘type defect’ enough to render the 
circumstances extraordinary, or is the expression ‘act of a third party’ to be 
understood rather as referring, for example, to sudden flight bans for certain types 
of aircraft? 
FINNAIR 
 
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17 If a defect such as that at issue is not be regarded as an extraordinary circumstance 
solely because it became apparent, after the discovery of the defect that prevented 
the fight from operating, that other aircraft of the type concerned were affected by 
the same hidden defect, it falls to be examined whether such a defect, which 
occurred on one aircraft and was eventually rectified, may constitute an 
extraordinary circumstance on other grounds. In accordance with settled case-law 
of the Court of Justice of the European Union, in the case of technical problems, 
the extraordinary circumstances must concern an event which fulfils two 
cumulative conditions. First, the event must not be inherent in the normal activity 
of the air carrier concerned. Second, it must be beyond the actual control of that 
carrier on account of its nature or origin (see, for example, the judgment of 
22 December 2008, Wallentin-Hermann, C-549/07, EU:C:2008:771, 
paragraph 23). 
18 The judgment in Lans (paragraphs 41 and 43) states that a breakdown caused by 
the premature malfunction of certain parts of an aircraft is intrinsically linked to 
the very complex operating system of the aircraft, which is operated by the air 
carrier in conditions which are often difficult or even extreme. In such a case, it is 
assumed that not even the prevention of such a breakdown or of the repairs 
occasioned by it is beyond the actual control of the air carrier concerned, since the 
latter is required to ensure the maintenance and proper functioning of the aircraft 
it operates for the purposes of its business. The Court has thus held, in judgments 
including that in Finnair, for example, that the premature, even unexpected, 
failure of certain parts of an aircraft does not constitute an extraordinary 
circumstance, since such a breakdown is, in principle, intrinsically linked to the 
operating system of the aircraft (see, for example, the judgment of 12 March 2020, 
Finnair, C-832/18, EU:C:2020:204, paragraph 41). 
19 The question arises as to whether the abovementioned interpretation of the 
premature failure of certain parts of an aircraft also applies to a hidden 
manufacturing or design defect such as that at issue here, which occurred for the 
first time on a new aircraft type and the rectification of which required a software 
update. The defect in the present case differs from the hidden manufacturing or 
design defect discovered (in a technical follow-up) in the Finnair case inasmuch 
as neither the manufacturer nor the air carrier knew at the time when the flight 
was cancelled what had caused the defect in the new aircraft type at issue here or 
how it could be rectified. On the other hand, according to the evidence presented 
in this case, it is not unusual for a new aircraft type to have hidden defects during 
the initial phase of its entry into service. 
Questions referred for a preliminary ruling 
The Korkein oikeus, after giving the parties an opportunity to submit their 
observations on the content of the request for a preliminary ruling, has decided to 
stay the further proceedings and to seek from the Court of Justice of the European 
Union a preliminary ruling on the following questions: 
REQUEST FOR A PRELIMINARY RULING OF 22. 6. 2023 – CASE C-385/23 
 
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1. Can an air carrier rely on extraordinary circumstances within the 
meaning of Article 5(3) of Regulation No 261/2004 on the sole ground that the 
aircraft manufacturer discovered the existence of a hidden design defect 
detrimental to flight safety and affecting the entire aircraft type, even though 
that discovery was not made until after the flight was delayed and cancelled? 
2. If the first question is answered in the negative, and it falls to be 
examined whether the circumstances in question are the result of events 
which are inherent in the normal exercise of the activity of the air carrier 
concerned and are not beyond the actual control of that carrier on account of 
their nature or origin, is the case-law of the Court of Justice of the European 
Union on the premature failure of certain technical parts of an aircraft 
applicable in a case such as that here, in which, at the time when the flight 
was cancelled, neither the manufacturer nor the air carrier knew the nature 
of the defect in the new aircraft type at issue or how it could be rectified? 
After receiving a preliminary ruling, the Korkein oikeus will give judgment in this 
case. 
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