Case C‑315/15

Marcela Pešková

and

Jiří Peška

v

Travel Service a.s.

(Request for a preliminary ruling from the Obvodní soud pro Prahu 6)

(Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Scope — Exemption from the obligation to pay compensation — Collision between an aircraft and a bird — Notion of ‘extraordinary circumstances’ — Notion of ‘reasonable measures’ to avoid extraordinary circumstances or the consequences thereof)

Summary — Judgment of the Court (Third Chamber), 4 May 2017

Transport—Air transport—Regulation No 261/2004—Compensation and assistance to passengers—Cancellation or long delay of flights—Exemption from the obligation to pay compensation—Condition—Extraordinary circumstances—Delay also attributable to other circumstances—Calculation of the delay attributable to extraordinary circumstances to determine whether there is an entitlement to compensation

Transport—Air transport—Regulation No 261/2004—Compensation and assistance to passengers—Cancellation or long delay of flights—Exemption from the obligation to pay compensation—Condition—Extraordinary circumstances—All reasonable measures taken by the air carrier to avoid cancellation or delay—Concept of reasonable measure—Measures to reduce the risk of collision between an aircraft and a bird—Included—To be determined by the national court

Transport—Air transport—Regulation No 261/2004—Compensation and assistance to passengers—Cancellation or long delay of flights—Exemption from the obligation to pay compensation—Condition—Extraordinary circumstances—Definition—Use by the air carrier of an expert of its choice to carry out fresh safety checks necessitated by a collision with a bird after those checks had already been carried out by an expert authorised under the applicable rules who found no damage to the aircraft—Precluded

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, read in the light of recital 14 thereof, 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. In the present case, a collision between an aircraft and a bird, and any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. In that regard, it is irrelevant whether the collision actually caused damage to the aircraft concerned. The objective of ensuring a high level of protection for air passengers pursued by Regulation No 261/2004, as specified in recital 1 thereof, means that air carriers must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flights over the objective of safety. (see paras 24-26, operative part 1)

See the text of the decision. (see paras 27-30)

Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that cancellation or delay of a flight is not due to extraordinary circumstances when that cancellation or delay is the result of the use by the air carrier of an expert of its choice to carry out fresh safety checks necessitated by a collision with a bird after those checks have already been carried out by an expert authorised under the applicable rules. In that regard, it must be noted that it is for the air carrier, faced with extraordinary circumstances, such as the collision of its aircraft with a bird, to adopt measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid, as far as possible, the cancellation or delay of its flights. Thus, although Regulation No 261/2004 does not infringe the freedom of air carriers to use the experts of their choice to carry out the checks necessitated by a collision with a bird, the fact remains that, when a check has already been carried out after such a collision by an expert authorised to do so under the applicable rules, which it is for the referring court to ascertain, the view cannot be taken that a second check inevitably leading to a delay equal to or in excess of three hours to the arrival of the flight concerned constitutes a measure appropriate to the situation for the purposes of the case-law cited in paragraph 28 of this judgment. (see paras 34, 35, 37, operative part 2)

Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that the ‘reasonable measures’ which an air carrier must take in order to reduce or even prevent the risks of collision with a bird and thus be released from its obligation to compensate passengers under Article 7 of Regulation No 261/2004 include control measures preventing the presence of such birds provided that, in particular at the technical and administrative levels, such measures can actually be taken by that air carrier, that those measures do not require it to make intolerable sacrifices in the light of the capacities of its undertaking and that that carrier has shown that those measures were actually taken as regards the flight affected by the collision with a bird, it being for the referring court to satisfy itself that those conditions have been met. (see para. 48, operative part 3)

Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that, in the event of a delay to a flight equal to or in excess of three hours in arrival caused not only by extraordinary circumstances, which could not have been avoided by measures appropriate to the situation and which were subject to all reasonable measures by the air carrier to avoid the consequences thereof, but also in other circumstances not in that category, the delay caused by the first event must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival of that flight must be paid as provided for in Article 7 of that regulation. (see para. 54, operative part 4)