Judgment — ECLI:EU:C:2008:771
Date: 2008-12-22
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Concepts: Air passenger rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Transport – Air transport – Regulation No 261/2004 – Compensation and assistance to passengers in the event of cancellation of flights (European Parliament and Council Regulation No 261/2004, Art. 5(3)) 2. Transport – Air transport – Regulation No 261/2004 – Compensation and assistance to passengers in the event of cancellation of flights (European Parliament and Council Regulation No 261/2004, Art. 5(3); Montreal Convention of 1999, Art. 19 et seq.) 3. Transport – Air transport – Regulation No 261/2004 – Compensation and assistance to passengers in the event of cancellation of flights (European Parliament and Council Regulation No 261/2004, Art. 5(3)) 4. Transport – Air transport – Regulation No 261/2004 – Compensation and assistance to passengers in the event of cancellation of flights (European Parliament and Council Regulation No 261/2004, Arts 5(1)(c) and (3) and 7(1)) 1. Article 5(3) of 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 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. Although the Community legislature included in the indicative list set out in recital 14 in the preamble to that regulation ‘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 that recital, 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. Air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity. (see paras 23-24, 34, operative part 1) 2. The Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) is not decisive for the interpretation of the grounds of exemption under Article 5(3) of 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. That article refers to the concept of ‘extraordinary circumstances’, whereas that concept does not appear in either Article 19 or any other provision of the Montreal Convention. Furthermore, Article 19 of the Montreal Convention relates to delays, whereas Article 5(3) of Regulation No 261/2004 deals with flight cancellations. Moreover, Article 19 et seq. of that convention governs the conditions under which, if a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis. By contrast, Article 5(3) of Regulation No 261/2004 provides for standardised and immediate compensatory measures. Those measures, which are unconnected with those whose institution is governed by the Montreal Convention, thus intervene at an earlier stage than the convention. It follows that the carrier’s grounds of exemption from liability provided for in Article 19 of that convention cannot be transposed without distinction to Article 5(3) of Regulation No 261/2004. (see paras 30-32, 34, operative part 1) 3. The frequency of the technical problems experienced by an air carrier is not in itself a factor from which it is possible to conclude the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of 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. (see para. 37, operative part 2) 4. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures’ within the meaning of Article 5(3) of 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, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)(c) and 7(1) of that regulation. The Community 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. It follows that, 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 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. (see paras 39-41, 43, operative part 3)