Judgment;Summary — ECLI:EU:C:2020:204
Date: 2020-03-12
Language of the case: Finnish
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Finland

Translation C-832/18 — 1 
Case C-832/18 
Request for a preliminary ruling 
Date lodged: 
21 December 2018 
Referring court: 
Helsingin hovioikeus (Finland) 
Date of the decision to refer: 
20 December 2018 
Applicants/appellants: 
A and Others 
Defendant/respondent: 
Finnair Oyj 
 
Helsingin hovioikeus (Court of Appeal, Helsinki)  
Order    […] 
Date of issue   […] 
20.12.2018   […] 
Decision under appeal 
Helsingin käräjäoikeus (District Court, Helsinki), 21 June 2017, No 33919 
[…] 
Subject 
Request for a preliminary ruling by the Court of Justice of the European 
Union in a case regarding the minimum rights of air passengers 
Applicants/appellants 
A 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20. 12. 2018 — CASE C-832/18 
 
2  
B 
C 
D 
E 
F 
G 
H 
represented by Mikko Mantere, oikeustieteen kandidaatti […] 
Defendant Finnair Oyj 
represented by Tapio Väätäinen, asianajaja […] 
Subject matter of the dispute 
1 The case concerns the interpretation 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 (hereinafter: Regulation No 261/2004), in particular 
the interpretation of Article 5(3) and Article 7(1) and (2) of that regulation. 
2 More specifically, it concerns the question of whether a passenger is entitled to 
further compensation within the meaning of Article 7 of Regulation No 261/2004 
if he has received compensation for a cancelled flight and the re-routed flight after 
the cancelled flight was delayed to such an extent that the passenger arrived at the 
final destination over three hours after the scheduled time of arrival of the [Or. 2] 
re-routed flight. The case also concerns the interpretation of the term 
‘extraordinary circumstances’ within the meaning of Article 5(3). 
Relevant facts 
3 A, B, C, D, E, F, G and H (hereinafter: the applicants) had to travel from Helsinki 
to Singapore on the direct flight AY 0081 departing at 11:55 p.m. on 11 October 
2013. The operating air carrier was Finnair Oyj (hereinafter: Finnair).  
4 Finnair cancelled the aforementioned flight AY 0081 on 11 October 2013 due to a 
technical defect that appeared in the aircraft. As a result of the cancellation, 
Finnair offered the applicants re-routing, which they had chosen from the 
alternatives under Article 8, pursuant to Article 5(1)(a) of Regulation 
FINNAIR 
 
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No 261/2004. Finnair re-routed the applicants onto flight AY 55, which was 
departing the next day, on 12 October 2013, from Helsinki to Singapore, via 
Chongqing. Finnair issued the applicants new tickets for the Helsinki–Chongqing–
Singapore flight. 
5 In accordance with the applicants’ claim, during the court proceedings Finnair 
acknowledged that each applicant was entitled to compensation of EUR 600 for 
the cancellation of the original Helsinki–Singapore flight AY 0081. 
6 Finnair was the operating air carrier of the re-routed Helsinki–Chongqing–
Singapore flight AY 55, after the cancelled flight AY 0081. The scheduled time of 
departure of flight AY 55 from Helsinki was 5:40 p.m. on 12 October 2013 and 
the scheduled time of arrival in Chongqing was 7:10 a.m. on 13 October 2013. For 
the Chongqing–Singapore flight, the scheduled time of departure from Chongqing 
was 12:35 p.m. on 13 October 2013 and the scheduled time of arrival in Singapore 
was 5:25 p.m. on 13 October 2013. 
7 The new, re-routed flight AY 55 was delayed due to damage to the aircraft’s 
rudder steering servo. Flight AY 55 took off from Helsinki on 12 October 2013 
seven hours and 38 minutes later than its scheduled time of departure and arrived 
in Chongqing on 13 October 2013 with a delay in relation to its scheduled time of 
arrival. Due to the delayed departure of flight AY 55, the applicants did not make 
the connecting flight MI971 from Chongqing to Singapore, which departed at 
12:35 p.m. on 13 October 2013. 
8 In Chongqing, Finnair had organised a new flight connection for the applicants on 
the same day, 13 October 2013, for flight CX715 from Chongqing to Singapore 
via Hong Kong. The Chongqing–Hong Kong–Singapore flight, CX715, was 
operated by Dragon Air. The applicants received boarding passes from Dragon 
Air arranged by Finnair. 
9 The applicants’ claim was based on the view that the re-routed flight AY 55 after 
flight AY 0081, which was cancelled on 11 October 2013, was scheduled to arrive 
in Singapore at 5:25 p.m. on 13 October 2013 and they actually arrived in 
Singapore at 12:15 a.m. on 14 October 2013. The actual time of arrival at the final 
destination, Singapore, exceeded the scheduled time of arrival of the re-routed 
flight by over three [Or. 3] hours. 
Decision of the District Court on the claims regarding the right to 
compensation 
10 The applicants requested before the Helsinki District Court that Finnair be ordered 
to pay each of them EUR 600 plus interest for the cancellation of the original 
flight AY 0081 from Helsinki to Singapore. In accordance with the applicants’ 
claim, during the court proceedings Finnair acknowledged the claim of each 
applicant to compensation of EUR 600 for the cancellation of the original flight 
REQUEST FOR A PRELIMINARY RULING OF 20. 12. 2018 — CASE C-832/18 
 
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AY 0081 from Helsinki to Singapore, and the district court of first instance 
allowed the claim to that extent. 
11 In addition, the applicants requested that Finnair be ordered to pay each of them 
compensation of EUR 600 plus interest for the delay of the re-rerouted AY 55 
Helsinki–Chongqing–Singapore flight. The applicants based their claim on the 
fact that, owing to the delay of the re-routed flight, they were entitled to a second 
compensation payment of EUR 600 within the meaning of Article 5(1)(c) and 
Article 7(1)(c) of Regulation No 261/2004, as the flight arrived at the final 
destination with a delay of over three hours. 
12 Finnair requested that the action be dismissed on the ground that the claim for the 
second compensation payment of EUR 600 for the delay of the re-routed AY 55 
Helsinki–Chongqing–Singapore flight was unfounded. There was no provision in 
Regulation No 261/2004 regarding a duty to compensate on the part of the 
operating air carrier that related to a delay of a flight on which passengers were re-
routed due to a cancelled flight. Furthermore, Finnair asserted that the re-routed 
flight was delayed due to extraordinary circumstances within the meaning of 
Article 5(3) of Regulation No 261/2004. 
13 The District Court ruled on the case on 21 June 2017. It dismissed the action for 
compensation for the delay of the re-routed flight AY 55 on the ground that the 
applicants were not entitled to a second compensation payment on the basis of 
Regulation No 261/2004 due to the delay of the re-routed flight. In view of the 
final outcome of the case, the District Court did not comment on whether the 
technical defect that had caused the delay of the re-routed flight constituted an 
extraordinary circumstance within the meaning of Article 5(3) of Regulation 
No 261/2004. 
Appeal before the Court of Appeal regarding the claim relating to the right 
to compensation 
14 The proceedings before the Court of Appeal no longer concern compensation of 
EUR 600 for the cancelled original flight AY 0081 from Helsinki to Singapore. 
15 The applicants requested before the Court of Appeal that Finnair be ordered to pay 
each of them compensation of EUR 600 plus interest for the delay of the re-
rerouted AY 55 Helsinki–Chongqing–Singapore flight. The applicants submitted 
that for the delay of the re-routed flight they were entitled to compensation of 
EUR 600 in accordance with Article 5(1)(c) and Article 7(1)(c) of Regulation 
No 261/2004, as the flight arrived at the final destination with a delay of over 
three hours. The fact that Finnair had already granted the applicants such a 
compensation payment for the cancelled original flight was irrelevant. [Or. 4] 
16 Finnair requested that the appeal be dismissed. On the one hand, Finnair takes the 
view that the applicants did not have a right to further compensation due to the 
delay of the re-routed AY 55 Helsinki–Chongqing–Singapore flight. 
FINNAIR 
 
5 
Compensation could be obtained only once. On the other hand, Finnair asserts that 
the re-routed flight was delayed due to extraordinary circumstances within the 
meaning of Article 5(3) of Regulation No 261/2004. 
Grounds of the request for a preliminary ruling 
Question 1 
Legal rules on compensation under Article 7 of Regulation No 261/2004 
17 The right of a passenger to compensation owing to the cancellation of a flight is 
laid down in Article 5(1)(c) and Article 7 of Regulation No 261/2004 as follows: 
Article 5(1)(c) 
1. In case of cancellation of a flight, the passengers concerned shall: 
(c) have the right to compensation by the operating air carrier in 
accordance with Article 7, unless: 
(i) they are informed of the cancellation at least two weeks before 
the scheduled time of departure; or 
(ii) they are informed of the cancellation between two weeks and 
seven days before the scheduled time of departure and are offered re-
routing, allowing them to depart no more than two hours before the 
scheduled time of departure and to reach their final destination less 
than four hours after the scheduled time of arrival; or 
(iii) they are informed of the cancellation less than seven days before 
the scheduled time of departure and are offered re-routing, allowing 
them to depart no more than one hour before the scheduled time of 
departure and to reach their final destination less than two hours after 
the scheduled time of arrival. 
Article 7 
1. Where reference is made to this Article, passengers shall receive 
compensation amounting to: 
(a) EUR 250 for all flights of 1500 kilometres or less; 
(b) EUR 400 for all intra-Community flights of more than 1500 
kilometres, and for all other flights between 1500 and 3500 kilometres; 
(c) EUR 600 for all flights not falling under (a) or (b). 
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In determining the distance, the basis shall be the last destination at which 
the denial of boarding or cancellation will delay the passenger’s arrival after 
the scheduled time. 
2. When passengers are offered re-routing to their final destination on an 
alternative flight pursuant to Article 8, the arrival time of which does not 
exceed the scheduled arrival time of the [Or. 5] flight originally booked 
(a) by two hours, in respect of all flights of 1500 kilometres or less; or 
(b) by three hours, in respect of all intra-Community flights of more than 
1500 kilometres and for all other flights between 1500 and 3500 kilometres; 
or 
(c) by four hours, in respect of all flights not falling under (a) or (b), 
the operating air carrier may reduce the compensation provided for in 
paragraph 1 by 50%. 
3. The compensation referred to in paragraph 1 shall be paid in cash, by 
electronic bank transfer, bank orders or bank cheques or, with the signed 
agreement of the passenger, in travel vouchers and/or other services. 
4. The distances given in paragraphs 1 and 2 shall be measured by the 
great circle route method. 
18 In its judgment of 19 November 2009 in Cases C-402/07 and C-432/07, 
Christopher Sturgeon, Gabriel Sturgeon and Alana Sturgeon v Condor Flugdienst 
GmbH and Stefan Böck and Cornelia Lepuschitz v Air France SA 
(ECLI:EU:C:2009:716), the Court of Justice took the view that passengers have 
the right to the same flat-rate compensation as that in the case of cancellation of 
the flight if the passengers arrive at the final destination at least three hours later 
than the scheduled time of arrival, unless the delay was due to extraordinary 
circumstances within the meaning of Article 5(3) of Regulation No 261/2004 
which could not have been avoided even if all reasonable measures had been 
taken. In that judgment the Court of Justice stated, inter alia: 
69 In the light of the foregoing, the answer to the second part of the 
questions referred is that Articles 5, 6 and 7 of Regulation No 261/2004 
must be interpreted as meaning that passengers whose flights are delayed 
may be treated, for the purposes of the application of the right to 
compensation, as passengers whose flights are cancelled and they may thus 
rely on the right to compensation laid down in Article 7 of the regulation 
where they suffer, on account of a flight delay, a loss of time equal to or in 
excess of three hours, that is, where they reach their final destination three 
hours or more after the arrival time originally scheduled by the air carrier. 
Such a delay does not, however, entitle passengers to compensation if the air 
carrier can prove that the long delay was caused by extraordinary 
FINNAIR 
 
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circumstances which could not have been avoided even if all reasonable 
measures had been taken, namely circumstances beyond the actual control of 
the air carrier. 
19 In Commission Notice (2016/C 214/04) on Interpretative Guidelines on 
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 boarding and of cancellation or long delay of flights and on 
Council Regulation (EC) No 2027/97 on air carrier liability in the event of 
accidents as amended by Regulation [Or. 6] (EC) No 889/2002 of the European 
Parliament and of the Council, the following is stated: 
4.2 … Any new right to compensation according to Article 7 will apply to 
the re-routed flight accepted under Article 8(1)(b) or (c) if it is also 
cancelled or delayed at arrival … 
20 In the Commission Proposal for a Regulation of the European Parliament and of 
the Council amending Regulation (EC) 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, 
the following is stated: 
7. Article 7 is amended as follows: 
… 
(b) Paragraphs 2, 3 and 4 are replaced by the following: 
2. Where the passenger has opted for the continuation of his travel 
pursuant to Article 8(1)(b), the right to compensation can arise only once 
during his travel to the final destination, even if a new cancellation or missed 
connection should arise during rerouting. 
… 
Necessity of the request for a preliminary ruling on the right to a second 
compensation payment under Article 7 
21 In this case, it is open to interpretation whether Regulation No 261/2004 is to be 
interpreted as meaning that a passenger is entitled to a new compensation payment 
pursuant to Article 7 if he has received compensation for a cancelled flight and the 
re-routed flight after the cancelled flight was delayed to such an extent that the 
passenger suffered a loss of time of at least three hours due to the delayed flight, 
in other words arrived at the final destination at least three hours later than the 
scheduled time of arrival communicated by the operating air carrier. 
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22 Regulation No 261/2004 does not provide a clear answer for the situation 
described above. It does not contain any provision that expressly excludes the 
possibility of receiving a new compensation payment under Article 7 in the event 
that the re-routed flight is delayed beyond its scheduled time of arrival to such an 
extent that it entitles the passenger to compensation. 
23 The Commission Notice and the Commission Proposal to amend Regulation 
No 261/2004 contradict one another in the manner described above. 
24 The Court of Justice has neither given a judgment regarding the right to a second 
compensation payment pursuant to Article 7, nor is such a decision pending. The 
Court of Appeal takes the view that the Court of Justice’s case-law relating to 
Regulation No 261/2004 does not provide a clear [Or. 7] answer for the situation 
described above either. 
25 The Danish request for a preliminary ruling of 24 June 2015, C-305/15, Delta Air 
Lines Inc v Daniel Dam Hansen, Mille Doktor, Carsten Jensen, Mogens Jensen, 
Dorthe Fabricius, Jens Ejner Rasmussen, Christian Bøje Pedersen, Andreas 
Fabricius, Mads Wedel Rasmussen, Nicklas Wedel Rasmussen, Thomas Lindstrøm 
Jensen, Marianne Thestrup Jensen, Erik Lindstrøm Jensen, Jakob Lindstrøm 
Jensen, Liva Doktor and Peter Lindstrøm Jensen, was pending before the Court of 
Justice. The request for a preliminary ruling concerned inter alia the question of 
whether Article 5 and 7 of Regulation No 261/2004 are to be interpreted as 
meaning that airline passengers may be entitled to compensation under the 
regulation more than once on the basis of the same reservation, when the flight on 
which the operating air carrier has re-routed the passenger is cancelled or delayed 
by more than three hours, with the result that the compensation under Article 7 of 
the regulation is not fixed but rather is contingent on the number of cancellations 
or on the scope of the cancellation and the associated delay. The Danish court that 
had requested the preliminary ruling withdrew the request, however, and it was 
removed from the register of the Court of Justice on 24 May 2016. For this reason, 
the Court of Justice did not take a position on the matter. 
26 The aim of Regulation No 261/2004 of ensuring a high level of protection for 
passengers could in particular militate in favour of a right to a second 
compensation payment. The preamble to Regulation No 261/2004 states the 
following, inter alia: 
(1) Action by the Community in the field of air transport should aim, 
among other things, at ensuring a high level of protection for passengers. 
Moreover, full account should be taken of the requirements of consumer 
protection in general. 
27 On the other hand, it could be inferred from the case-law of the Court of Justice 
that the first point of departure and the final destination constitute a set of flights 
on the basis of which a passenger is entitled to only one compensation payment 
pursuant to Article 7 of Regulation No 261/2004, irrespective of the cancellations 
FINNAIR 
 
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and delays that may occur several times within that set of flights. This inference 
could be based on the statements made by the Court of Justice regarding the 
concept and meaning of ‘final destination’ in the aforementioned judgment of 
19 November 2009, C-402/07 and C-432/07, Christopher Sturgeon, Gabriel 
Sturgeon and Alana Sturgeon v Condor Flugdienst GmbH and Stefan Böck and 
Cornelia Lepuschitz v Air France SA (ECLI:EU:C:2009:716), and in the judgment 
of 10 July 2008, C-173/07, Emirates Airlines v Diether Schenkel 
(ECLI:EU:C:2008:400). In the latter decision the Court of Justice stated, inter alia, 
the following: 
36 In addition, first, Articles 4(1), 5(1) and 8(1) of Regulation 
No 261/2004 provide for redress for various kinds of damage that may occur 
in connection with a flight, but do not contemplate that one of those 
occasions of damage may occur several times during a single flight. In those 
circumstances, passengers departing originally from an airport located in a 
Member State could claim the benefit of that protection only once if they 
were to suffer the same damage on the outward and the return legs. [Or. 8] 
28 The applicants argue that the scheduled time of arrival of the cancelled original 
flight AY 0081 from Helsinki to Singapore was 4:40 p.m. in Singapore on 
12 October 2013. According to the applicants, the re-routed flight AY 55 after the 
cancelled flight had arrived in Chongqing on 13 October 2013 over eight hours 
later than its scheduled time of arrival. In addition, the applicants argue that the 
last flight of the re-routed journey, flight CX715 from Hong Kong to Singapore, 
operated by Dragon Air, had arrived in Singapore at 12:15 a.m. on 14 October 
2013. Thus, the applicants arrived at the final destination in Singapore one day, 
seven hours and 35 minutes later than the scheduled time of arrival of the 
cancelled original flight AY 0081 and over six hours later than the scheduled time 
of arrival of the subsequent re-routed flight AY 55. 
29 In addition, the applicants take the view that they had entered into a new contract 
for carriage by air with Finnair by choosing, from the alternatives in Article 8 of 
Regulation No 261/2004, re-routing following the cancellation of the original 
flight. The applicants take the view that the original Helsinki–Singapore flight AY 
0081 and the re-routed Helsinki–Chongqing–Singapore flight AY 55, in the 
context of which the new arrangement via Hong Kong had been organised, were 
two separate contracts for carriage by air, which was reflected by the two separate 
tickets and which entitled the passengers to two independent compensation 
payments. 
30 Finnair argues that a single contract for carriage by air, which had started with the 
flight from Helsinki and ended at the final destination in Singapore, was involved. 
The right to the fixed compensation provided for in Article 7 of Regulation 
No 261/2004 existed only once in connection with a single contract for carriage 
by air. Finnair had already granted the applicants compensation in accordance 
with Article 5(1)(c) for the cancellation of the original Helsinki–Singapore flight 
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AY 0081 before the District Court. Accordingly, the request for a second 
compensation payment was unfounded. 
31 In addition, Finnair submits that the cancellation of the flight, the re-routing and 
the arrival of passengers at the final destination at a specific time were connected 
in a legally relevant way. It was apparent from Article 7(2) of the regulation that 
the time at which the passenger reached his final destination compared to the 
scheduled time of arrival of the originally booked flight was essential for the 
contract for carriage by air and the associated rerouting. 
Question 2 
Legal rules on extraordinary circumstances within the meaning of Article 5 of 
Regulation No 261/2004  
32 Article 5(3) of Regulation No 261/2004 provides the following in relation to 
extraordinary circumstances: [Or. 9] 
Article 5(3) 
An operating air carrier shall not 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. 
33 The Court of Justice addressed the term ‘extraordinary circumstances’ in, inter 
alia, its decisions of 22 December 2008, C-549/07, Friederike Wallentin-Hermann 
v Alitalia — Linee Aeree Italiane SpA (ECLI:EU:C:2008:771), and of 
17 September 2015, C-257/14, Corina van der Lans v Koninklijke Luchtvaart 
Maatschappij NV (ECLI:EU:C:2015:618). In the latter decision, the Court of 
Justice stated inter alia the following: 
36 Finally, as regards, more particularly, technical problems encountered 
by an aircraft, it follows from the case-law of the Court that such problems 
may be included among ‘unexpected flight safety shortcomings’, and 
although a technical problem in an aircraft may be amongst such 
shortcomings, the fact remains that the circumstances surrounding such an 
event can be characterised as ‘extraordinary’ within the meaning of 
Article 5(3) of Regulation No 261/2004 only if they relate to an event which, 
like those listed in recital 14 in that 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 (see, to that effect, 
judgment in Wallentin-Hermann, C-549/07, EU:C:2008:771, paragraph 23). 
37 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. In that connection, technical problems 
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which come to light during maintenance of aircraft or on account of failure 
to carry out such maintenance cannot constitute, in themselves, 
‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004 
(see, to that effect, judgment in Wallentin-Hermann, C-549/07, 
EU:C:2008:771, paragraphs 24 and 25). 
38 Nevertheless, 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. The same would hold for damage to aircraft caused by acts of 
sabotage or terrorism (see, to that effect, judgment in Wallentin-Hermann, 
C-549/07, EU:C:2008:771, paragraph 26). 
Necessity of the request for a preliminary ruling on the interpretation of 
Article 5(3) 
34 The issue to be resolved in this case is how the term ‘exceptional circumstances’ 
within the meaning of Article 5(3) of Regulation No 261/2004 is to be interpreted 
in the case of a defect in an ‘on [Or. 10] condition’ part of an aircraft. In this case, 
it is open to interpretation what is meant by the expression ‘all reasonable 
measures’ when such a part is involved. 
35 The delayed departure of the Helsinki–Chongqing–Singapore flight AY 55 on 
12 October 2013 was attributable to a defect in the aircraft’s rudder steering servo. 
The aircraft in question was an Airbus A330, the rudder of which had three 
steering servos in normal operation. If one of the aircraft’s steering servos failed, 
the rudder would be controlled by the two remaining servos. 
36 The rudder steering servo was a so-called ‘on condition’ part, that is to say always 
maintained so as to be operational, without any major overhaul or replacement on 
account of inspections based on time intervals or flight hours. Such an ‘on 
condition’ part was only changed only in the event of a defect. The said part could 
therefore not have had any premature defects. 
37 Finnair was able to produce a notification from the aircraft manufacturer, Airbus, 
issued prior to the delay of the re-routed flight, in relation to a hidden 
manufacturing or design defect in that aircraft part relating to several aircraft of 
the same type. 
38 According to the aircraft manufacturer’s notification regarding the hidden 
manufacturing defect in the servo, which affected the flight safety of the aircraft 
already in use, a hidden manufacturing or design defect had appeared in the rudder 
steering servo, which was also found in A330 aircraft. The first version of the 
document in question was issued on 29 March 2012 (first issue date). A new, 
improved and more robust version of the servo had been developed just before 
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mid-2013. The last version of the document in question had been published on 
13 August 2015 (last publication date) and the procedure was then closed. It had 
not been possible for the airline to obtain a defect-free part for the part that had the 
hidden manufacturing or design defect when the airplane manufacturer’s 
notification was published or necessarily even when the procedure was closed. 
39 It is not possible to infer directly from the Court of Justice’s previous case-law on 
extraordinary circumstances whether an air carrier can rely on the appearance of a 
defect in an ‘on condition’ part as an exceptional circumstance that affects flight 
safety and exempts it from compensation if, even after a notification issued by the 
aircraft manufacturer, a part that contains a hidden design or manufacturing defect 
is still treated as an ‘on condition’ part, that is to say not replaced by a new part 
before a defect materialises. 
40 The case-law of the Court of Justice does not provide an answer to the question of 
how long, after an aircraft manufacturer’s notification, defects in the described 
part are to be regarded as an unforeseeable defect that affects flight safety, is not 
inherent in the normal exercise of the activity of the air carrier concerned and, by 
its nature, is beyond its actual control. 
41 The parties have different views on the interpretation of exceptional circumstances 
within the meaning of Article 5(3) of Regulation No 261/2004. [Or. 11] 
42 The applicants argue that Finnair could not rely on exceptional circumstances. 
Owing to the aircraft manufacturer’s notification, Finnair had been made aware 
that there could be defects in the rudder steering servo of the A330 aircraft. The 
applicants take the view that the aircraft manufacturer’s notification shows that 
the servo of the same aircraft type explicitly had to be monitored. Taking into 
account, in particular, the fact that the servo was considered to be an ‘on 
condition’ part, Finnair deliberately ran the risk that the part in question would 
become defective one day. 
43 The applicants also submit that in October 2013, when the applicants’ flight had 
been delayed, the occurrence of defect in the servo could no longer be regarded as 
a surprising and unexpected event that Finnair could not have anticipated. The 
defect in question was to be regarded as a technical defect, the repair of which was 
an important part of the activity of an air carrier and was within its actual control. 
44 Finnair argues that the occurrence of a defect in one of three rudder steering 
servos on 12 October 2013 was a surprising and extremely rare technical defect. 
This was Finnair’s newest aircraft type, produced at the end of 2012, and the servo 
defect that occurred on 12 October 2013 was the first in this aircraft type and also 
in previous similar aircraft types. 
45 Finnair had had a replacement part for the servo containing the manufacturing 
defect in its so-called main base kit in Helsinki, and the part could have been 
replaced as soon as the aircraft landed at Helsinki-Vantaa airport on the preceding 
flight. According to Finnair, for flight safety, it was necessary to replace the 
FINNAIR 
 
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defective servo before the flight AY 55 from Helsinki to Chongqing could take 
off. According to Finnair, it took approximately five to six hours to replace a 
servo. 
46 According to Finnair, the A330 aircraft in question and its rudder steering servo 
had been maintained in accordance with the maintenance programmes drawn up 
by the aircraft manufacturer and approved by the authorities. The defect in the 
servo was not attributable to maintenance shortcomings. A defect in the rudder 
steering servo could not be detected at all in the context of regular maintenance, 
but rather only when the defect occurs. Accordingly, Finnair did not have the 
opportunity to avoid the occurrence of the defect in the servo in advance. The 
company had taken all reasonable measures. 
47 Finnair takes the view that the aircraft manufacturer’s notification indicated the 
existence of extraordinary circumstances. According to Finnair, with regard to the 
technical follow-up, attention should be paid to the following circumstances: 
(a) A technical follow-up was carried out if the aircraft manufacturer had 
received several notifications about the occurrence of a particular technical 
defect; 
(b) The ‘first issue date’ in the context of the technical follow-up refers to 
the date on which the first version of the document was published. At the 
point in time in question, in fact, the aircraft manufacturer did not even have 
precise information about what the technical defect was or, therefore, about 
what caused the technical defect. In later versions of technical follow-up, the 
[Or. 12] root cause of the fault was gradually supplemented as the aircraft 
manufacturer received more detailed information on the root causes of the 
technical defect; 
(c) It was very normal for several updated versions of the technical 
follow-up to be issued, in which the aircraft manufacturer reported on 
additional information that it has received about, inter alia, the root causes of 
the defect. 
(d) In the phase in which the aircraft manufacturer had technical 
knowledge of what caused the defect and of the solution with which to 
remedy it, the technical follow-up generally presented the technical solution 
and a timetable for the required remedial measures, such as a re-designed 
part, for instance. 
(e) After the technical solution for remedying the defect had been 
clarified, there was the additional requirement that the part that was the 
subject of the measures be manufactured and available to the airlines either 
from the manufacturer of the part or from the aircraft manufacturer. 
48 Finnair also submits that the technical follow-up did not entail an obligation on 
the part of the airlines to change the aforementioned parts containing a 
REQUEST FOR A PRELIMINARY RULING OF 20. 12. 2018 — CASE C-832/18 
 
14  
manufacturing defect before they malfunctioned. Subsequently, the same defect 
was only detected in the servo of two Finnair aircraft of the same type and it was 
only in those aircraft that the servo had been replaced by a new version. The old 
version of the servo was still being used in other aircraft. 
The questions referred 
After hearing the submissions of the parties regarding the necessity and content of 
the request for a preliminary ruling, the Court of Appeal decided to stay the 
proceedings and refer the following questions to the Court of Justice: 
1. Is Regulation No 261/2004 to be interpreted as meaning that a passenger has 
the right to further compensation in accordance with Article 7(1) if he has 
received compensation for a cancelled flight, the operating air carrier of the re-
routed flight is the same as that of the cancelled flight, and the re-routed flight 
after the cancelled flight is also delayed beyond the scheduled time of arrival to 
such an extent that it entitles the passenger to compensation? 
2. If Question 1 is answered in the affirmative, can the operating air carrier rely 
on extraordinary circumstances within the meaning of Article 5(3) if, following a 
technical follow-up by the aircraft manufacturer in relation to aircraft already in 
use, the part dealt with in that document is in fact treated as a so-called ‘on 
condition’ part, that is to say as a part that is used until it becomes defective, and 
the operating air carrier has prepared to replace the part in question by 
permanently stocking a spare part? 
… [Or. 13] …