Information;Order — ECLI:EU:C:2022:254
Date: 2022-03-30
Language of the case: Portuguese
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-659/21 – 1 
Case C-659/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 November 2021 
Referring court: 
Tribunal da Relação de Lisboa (Portugal) 
Date of the decision to refer: 
14 September 2021 
Appellant: 
Orbest, S. A. 
Respondents: 
CS, QN, OP and Others 
  
Subject matter of the main proceedings 
Appeal brought against the judgment delivered by the Tribunal Judicial da 
Comarca de Lisboa – Juízo Local Cível de Lisboa – Juiz 3 (District Court, 
Lisbon – Local Civil Court, Lisbon – Court No 3) ordering the appellant, Orbest, 
S.A., an air carrier operating charter flights, to pay compensation in the amount of 
EUR 600 to each of the 15 respondents. The latter were passengers of a flight 
from Lisbon to the Dominican Republic which was cancelled for safety reasons 
following the collision of a catering vehicle with the wheels of the aircraft [due to 
operate the flight] while the latter was parked at Lisbon Airport. The air carrier 
claims that the accident which led to the cancellation constitutes an extraordinary 
circumstance within the meaning of Article 5(3) of Regulation (EC) No 261/2004. 
Subject matter and legal basis of the request for a preliminary ruling 
A request is made to the Court of Justice under Article 267 TFEU for a 
preliminary on the interpretation of the concept of ‘extraordinary circumstances’ 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-659/21 
 
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within the meaning of recitals 14 and 15 and Article 5(3) of Regulation (EC) 
No 261/2004 of the European Parliament and of the Council of 11 February 2004. 
Question referred for a preliminary ruling 
‘Does the collision of a catering vehicle with an aircraft parked at the airport 
constitute an “extraordinary circumstance” within the meaning and for the 
purposes of recitals 14 and 15 and Article 5(3) of Regulation (EC) No 261/2004 of 
the European Parliament and of the Council of 11 February 2004?’ 
Provisions of European Union law relied on 
Recitals 14 and 15 and Articles 5(3) and 7 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 (OJ 2004 L 46, p. 1). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The respondents had scheduled a trip from 16 to 24 August 2018 through a tour 
operator and had concluded with the appellant, Orbest S. A., a contract for the 
operation of a flight routed Lisbon LIS – Samaná AZS (Dominican Republic) – 
Montego Bay MBJ (Jamaica). 
2 The flight was scheduled to leave Lisbon Airport at 14.30 and to arrive in Samaná, 
Dominican Republic, at 17.35 on the same day. 
3 The orthodromic distance of the Lisbon-Samaná route is in excess of 6 000 km. 
4 At 12.30 on 16 August, the respondents approached the boarding gate after having 
checked in for the flight and checked in their luggage. However, the scheduled 
boarding time was successively delayed until the respondents were informed that 
there was an operational problem and they would have to wait.  
5 They were later informed that a catering lorry had collided with the aircraft [due 
to operate the flight] and a report from the aircraft manufacturer was being 
awaited before their trip could proceed. 
6 At the time of the collision, the aircraft was parked at the airport, waiting only for 
the flight in question. 
7 For safety reasons, the airport authorities decided that the flight could not be 
operated without the necessary checks and repairs, and, as a result, the flight was 
delayed and later cancelled. 
ORBEST 
 
3 
8 At around 19.00, the appellant informed the respondents that the flight would not 
be operating that day and that the passengers travelling to Samaná would be 
transferred to a hotel in Lisbon. The appellant provided accommodation and 
meals. 
9 An alternative flight to Punta Cana (Dominican Republic) was found, at 16.00 on 
17 August. The respondents made a bus journey of approximately 300 kilometres 
between Punta Cana and Samaná and arrived at the destination of the original 
flight at 02.00 on 18 August 2018. 
10 Subsequently, the respondents brought an action seeking an order requiring the 
appellant to pay (i) compensation in the amount of EUR 600 to each of them, (ii) 
sums equal to the costs of the transport, meals and overnight accommodation 
which they had paid for but not availed themselves of, (iii) compensation for non-
material damage and (iv) the default interest which had accrued and any which 
might accrue. 
11 The action was partially upheld and the appellant was ordered to pay the sum of 
EUR 600 to each of the passengers and acquitted of the other claims. 
12 Dissatisfied with that decision, [the appellant] appealed to the Tribunal da Relação 
de Lisboa (Appeal Court, Lisbon). 
Essential arguments of the parties to the main proceedings 
13 The appellant raises a ground of appeal alleging that it is excluded from liability 
because the accident in question, which was the reason the flight was cancelled, is 
an extraordinary circumstance for the purposes of Article 5(3) of Regulation (EC) 
No 261/2004.  
14 For, in the first place, the collision of a catering vehicle with an aircraft is not a 
situation which is inherent in the activity and the normal exercise of operations of 
an air carrier. Secondly, this is an exceptional, unforeseeable situation which is 
entirely beyond the actual control of the carrier. 
15 According to the appellant, catering is not a service inherent in the activity of air 
carriers because it is not an essential element of the contract of carriage. 
Consequently, any damage arising from a break-down in that service cannot be 
regarded as being inherent in the activity of the air transport of passengers either.  
16 The cancellation of the flight in question was due precisely to the collision with an 
aircraft of a vehicle owned by a catering company which, in these proceedings, is 
a third party whose services are not be regarded as essential. The reason for this, 
according to the appellant, is that catering services are not mandatory, in particular 
because they are not offered on all flights, unlike, for example, refuelling services 
or services connected with mobile boarding stairs or aircraft jetties. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-659/21 
 
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17 Furthermore, the appellant submits that, although the undertaking providing the 
catering service is one which it has contractually engaged, the accident in question 
constitutes a totally exceptional and unforeseeable situation which is clearly 
beyond its control. 
18 The collision, after all, occurred while the aircraft was properly parked at the 
airport. Consequently, although the appellant and its employees acted with the 
utmost diligence and took all of the safety measures they could reasonably have 
been required to take in order to avoid the damage, it was the reckless conduct of 
the driver of the vehicle which caused the collision with the wheels of the aircraft. 
19 The appellant therefore concludes that a right to compensation under Article 7 of 
Regulation No 261/2004 is ruled out by the existence of extraordinary 
circumstances. It also claims that the judgment ordering it to pay EUR 600 to each 
of the respondents should be set aside and replaced. 
20 The respondents have not submitted a response. 
Succinct presentation of the grounds of the request for a preliminary ruling 
21 The referring court notes that the interpretation of Article 5(3) of Regulation (EC) 
No 261/2004 has a central role to play in the resolution of the dispute in the main 
proceedings. 
22 In its opinion, the interpretation of Article 5(3) of Regulation (EC) No 261/2004 
given by the Court of Justice in the order of 14 November 2014, Siewert 
(C-394/14, EU:C:2014:2377) does not provide a solution to the dispute in the 
main proceedings. 
23 For, in the first place, the similarities between the two cases are obvious, since 
both sets of proceedings are concerned with collisions of moving objects with an 
aircraft due to operate a flight which was delayed or cancelled. 
24 The referring court points out, however, that a reading of the decision in Siewert 
does not make it clear whether, at the time of the collision between the mobile 
boarding stairs and the aircraft, someone was at the controls of the stairs or 
whether the aircraft was moving or stationary, whereas, in the dispute in the main 
proceedings, it has been shown that the catering vehicle belonging to the airport 
operator collided with the aircraft and the aircraft was parked, from which it 
follows that there was a driver at the controls of the vehicle. 
25 This means that, in the dispute in the main proceedings, it is clear and manifest 
that the collision was due to a human act attributable to a third party and that the 
air carrier had no involvement in the collision, which is not obviously the case in 
Siewert. 
ORBEST 
 
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26 Furthermore, the referring court notes that the case-law of the courts of first 
instance is divided on this question, inasmuch as, in proceedings before other 
courts of first instance concerning the same flight, the appellant’s position has 
been upheld, whereas, in the judgment under appeal, the proposition put forward 
by the respondents was upheld.