OPINION OF ADVOCATE GENERAL

BOT

delivered on 28 July 2016 ( 1 )

Case C‑315/15

Marcela Pešková,

Jiří Peška

v

Travel Service a.s.

(Request for a preliminary ruling from the Obvodní soud pro Prahu 6 (Prague 6 District Court, Czech Republic))

‛Reference for a preliminary ruling — Carriage by air — Compensation of passengers in the event of cancellation of, or a long delay to, a flight — Scope — Exemption from the obligation to pay compensation — Collision between a bird and an aircraft — Concepts of ‘event’ within the meaning of the case-law of the Court and ‘extraordinary circumstances’ within the meaning of Regulation (EC) No 261/2004 — Concept of ‘reasonable measure’ — Event inherent in the normal exercise of the activity of an air carrier)’

1. In the present case, the Court is being asked to rule, in essence, on whether a collision between a bird and an aircraft, which has the effect of causing, for that aircraft, a delay of more than three hours in arrival, constitutes ‘extraordinary circumstances’ within the meaning of Regulation (EC) No 261/2004, ( 2 ) thus exempting the air carrier from its obligation to compensate passengers for that delay.

2. In this Opinion, I shall set out the reasons why I consider that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a collision between a bird and an aircraft, which has the effect of causing a delay of more than three hours in relation to the initially scheduled arrival time, does not constitute ‘extraordinary circumstances’ within the meaning of that provision and cannot therefore exempt the operating air carrier from its obligation to pay compensation.

I – Legal context

3. Recital 14 of Regulation No 261/2004 reads as follows: ‘As under the Montreal Convention, [ ( 3 )] obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. 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.’

4. Article 5(3) of that regulation is worded as follows: ‘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.’

5. Pursuant to Article 7(1)(a) of that regulation, where reference is made to that article, passengers are to receive compensation amounting to EUR 250 for all flights of 1500 kilometres or less.

6. Finally, Article 13 of Regulation No 261/2004 provides as follows: ‘In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. Similarly, no provision of this Regulation may be interpreted as restricting the right of a tour operator or a third party, other than a passenger, with whom an operating air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.’

II – Facts giving rise to the dispute in the main proceedings

7. On 10 August 2013, Ms Marcela Pešková and Mr Jiří Peška were passengers on a flight operated by Travel Service a.s. (‘the defendant in the main proceedings’) from Burgas (Bulgaria) to Ostrava (Czech Republic).

8. That flight had the following itinerary: Prague (Czech Republic) — Burgas — Brno (Czech Republic) — Burgas — Ostrava. During the section from Prague to Burgas, there was found to be a technical failure in a valve, necessitating a repair lasting 1 hour 45 minutes. The defendant in the main proceedings claims that the aircraft collided with a bird during the landing in Brno, which was the reason why an inspection of that aircraft was carried out by a technician from Slaný (Czech Republic) working for the defendant in the main proceedings. The Obvodní soud pro Prahu 6 (Prague 6 District Court) points out that an inspection had already been carried out by another undertaking. However, the owner of the aircraft, Sunwing, had refused to authorise it. Consequently, the technician working for the defendant in the main proceedings again inspected the point of impact, with that inspection revealing nothing.

9. Since the technical failure in a valve and the collision between the aircraft and a bird caused a delay of 5 hours 20 minutes in the arrival at Ostrava, Ms Pešková and Mr Peška, by application received at the national court on 26 November 2013, each claimed from the defendant in the main proceedings the sum of EUR 250 in compensation under Article 7(1)(a) of Regulation No 261/2004.

10. By a judgment of 22 May 2014, the Obvodní soud pro Prahu 6 (Prague 6 District Court) upheld their claim on the ground that those two events had caused the delay and that they could not be regarded as ‘extraordinary circumstances’ within the meaning of Article 5(3) of that regulation. According to the national court, it is clear that it is fully within the powers of the defendant in the main proceedings, as an air carrier, to determine what administrative method it employs to resolve technical problems such as the ‘return to service’ of an aircraft after a collision with a bird. It also stated that the defendant in the main proceedings had failed to establish that it had done everything to avoid a delay to the flight, as it had merely stated that ‘it was necessary’ to await the arrival of the authorised technician after the collision between a bird and the aircraft.

11. The defendant in the main proceedings appealed against that decision on 2 July 2014. That appeal was dismissed by an order of 17 July 2014 of the Městský soud v Praze (Prague City Court, Czech Republic) on the ground that it was inadmissible given that, by that decision, a ruling had been given on two separate claims, neither of which exceeded CZK 10000 (approximately EUR 365).

12. The defendant in the main proceedings therefore appealed to the Ústavní soud (Constitutional Court, Czech Republic) against the judgment of 22 May 2014 by the Obvodní soud pro Prahu 6 (Prague 6 District Court). By a judgment of 20 November 2014, the Ústavní soud (Constitutional Court) set aside the judgment of 22 May 2014 on the ground that it violated the fundamental right of the defendant in the main proceedings to a fair trial and the fundamental right to a hearing before the proper statutory court, since the Obvodní soud pro Prahu 6 (Prague 6 District Court), as a court of last instance, was required to refer a question for a preliminary ruling to the Court under Article 267 TFEU. The Ústavní soud (Constitutional Court) also noted that the Court had not yet given a comprehensive interpretation of Regulation No 261/2004 as regards the nature of the liability following a collision between an aircraft and a bird in conjunction with other events of a different nature, in the present case technical events. Moreover, in its view, it is not clear from the case-law of the Court or from that regulation whether such circumstances may be considered ‘extraordinary circumstances’ within the meaning of Article 5(3) of that regulation.

13. It is in that context that Obvodní soud pro Prahu 6 (Prague 6 District Court) decided to refer the matter to the Court for a preliminary ruling.

III – The questions referred for a preliminary ruling

14. Having doubts as to the interpretation to be given to Regulation No 261/2004, the Obvodní soud pro Prahu 6 (Prague 6 District Court) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) Is a collision between an aircraft and a bird an event within the meaning of paragraph 22 of the judgment of [22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771)], or does it constitute extraordinary circumstances within the meaning of recital 14 … [of] Regulation … No 261/2004 …, or is it impossible to classify it under either of those concepts? (2) If the collision between an aircraft and a bird constitutes extraordinary circumstances within the meaning of recital 14 … [of] Regulation [No 261/2004], may preventative control systems established in particular around airports (such as sonic bird deterrents, cooperation with ornithologists, the elimination of spaces where birds typically gather or fly, using light as a deterrent and so on) be considered to be reasonable measures to be taken by the air carrier to avoid such a collision? What in this case constitutes the event within the meaning of paragraph 22 of [the judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771)]? (3) If a collision between an aircraft and a bird is an event within the meaning of paragraph 22 of [the judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771)], may it also be considered to be an event within the meaning of recital 14 … [of] Regulation [No 261/2004], and may, in such a case, the body of technical and administrative measures which an air carrier must implement following a collision between an aircraft and a bird which nevertheless did not result in damage to the aircraft be considered to constitute exceptional circumstances within the meaning of recital 14 [of that] regulation? (4) If the body of technical and administrative measures taken following a collision between an aircraft and a bird which nevertheless did not result in damage to the aircraft constitutes exceptional circumstances within the meaning of recital 14 … [of] Regulation [No 261/2004], is it permissible to require, as reasonable measures, the air carrier to take into consideration, when it schedules flights, the risk that it will be necessary to take such technical and administrative measures following a collision between an aircraft and a bird and to make provision for that fact in the flight schedule? (5) How must the obligation on the air carrier to pay compensation, as provided for in Article 7 of … Regulation [No 261/2004], be assessed where the delay is caused not only by administrative and technical measures adopted following a collision between the aircraft and a bird which did not result in damage to the aircraft, but also to a significant extent by repairing a technical problem unconnected with that collision?’

IV – My analysis

A – Preliminary observations

15. The examination of the case before the Court requires me to consider, in the interests of clarity, the following issue.

16. With regard to compensation for passengers in cases of air transport delays, the case-law of the Court has, in my view, the twofold characteristic of being precise and safeguarding passengers. Reading some of the arguments in the written observations submitted to the Court, certain of which refer, in particular (even if only concerning compensation for potential damage), to ‘unbearable costs’, I cannot help but wonder whether the parties are seeking a reorientation of the case-law, because, in my view, that is what it is, because the case-law as it now stands is regarded as placing an excessive financial burden on airlines.

17. I can understand that. However, if that is indeed the case, the appropriate solution to redress that potentially excessive effect must, in my view, be a legislative amendment and not an adaptation of the case-law that, first, requires the Court to play a role to which it is not, in my view, entirely suited and, secondly, runs the risk of blurring lines which have already been precisely determined. Furthermore, the Court determined them using its normal method of interpretation and in accordance with both the terms used and the reasons given by the EU legislature.

18. As I shall have occasion to restate when I present my reasoning, a refusal to consider the similarity which nevertheless exists between several situations on account of semantic distinctions (made on the basis of a legal principle unknown to me) amounts, in actual fact, to reliance on a case-by-case approach which would either render the Court — the supreme court of the European Union — an arbiter of the merits of the case or leave the solution to the national court, with all the attendant risks of divergence.

19. It seems to me that there lies therein a risk of vagueness and therefore of legal uncertainty.

20. Moreover, the logical solution which is consistent with the normal roles of the institutions in terms of their respective competences would, in my view, be the adoption of a legislative approach to correct legislation which, as initially worded, has had consequences which the EU legislature considers should not be maintained.

B – The questions referred for a preliminary ruling

21. By its first question, the national court asks, essentially, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a collision between a bird and an aircraft, which has the effect of causing a delay of more than three hours in relation to the initially scheduled arrival time, must be considered ‘extraordinary circumstances’ within the meaning of that provision, thus exempting the air carrier from its obligation to compensate air passengers.

22. I recall that, under Article 5(3) of that regulation, an operating air carrier is not to be obliged to pay compensation in accordance with Article 7 of that regulation, 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.

23. The Court has stated that, since it constitutes a derogation from the principle that passengers have the right to compensation, Article 5(3) must be interpreted strictly. ( 4 )

24. Moreover, the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) only if they relate to an event which, like those listed in recital 14 of Regulation No 261/2004, 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. ( 5 )

25. In that regard, it is clear from the observations submitted to the Court in the present case that there is some confusion between these two conditions. Indeed, I have read that because an event is not foreseeable and is beyond the actual control of the air carrier, it must automatically be classified as ‘extraordinary circumstances’ within the meaning of Regulation No 261/2004.

26. However, the conditions listed by the Court in the abovementioned case-law are cumulative conditions. Thus, an event constitutes extraordinary circumstances where, on the one hand, it is not inherent in the normal exercise of the activity of the air carrier and where, on the other hand, owing to its nature or origin, it is beyond the air carrier’s actual control.

27. Therefore, the absence of one of those conditions prevents the classification of an event as ‘extraordinary circumstances’. This applies in the case of a collision between a bird and an aircraft. Although, owing to its nature or origin, such a collision is beyond the actual control of the air carrier, it cannot be regarded as not inherent in the normal exercise of the air carrier’s activity.

28. The wildlife hazard involved in air transport is a well-known phenomenon and perfectly well understood by the relevant actors. From the stage of manufacturing an aircraft, the parts of it which are the most prone to impact with a bird — that is, in particular, the engine and the windscreen of the cockpit — are subjected to tests before the aircraft is able to obtain an airworthiness certificate allowing it to fly. ( 6 ) Thus, in order to test the resistance of an aircraft to collision with birds, aircraft manufacturers frequently use ‘chicken cannons’ which fire bird corpses at the aircraft’s flight speed at altitudes where such birds are commonly encountered, that is to say during take-off and landing. Thus, the structure of the aircraft must be able to withstand impact with birds of different sizes, according to the model of the aircraft and the model of the engine. ( 7 )

29. It is not only aircraft manufacturers who take into account animal hazards. At most airports, different methods are used to scare away birds and other animals in the vicinity of the runways, such as pyrotechnic shots, laser torches, or imitations of distress calls. Similarly, specific measures can be taken to reduce the attractiveness of an area near an airport, such as draining ponds or prohibiting crops which are too attractive to birds. ( 8 )

30. It is also known that the likelihood of collisions with birds is greater at certain periods than at others, the most dangerous periods being migration seasons and when young birds unaccustomed to aircraft take flight, and the most dangerous times of day being dawn and dusk. ( 9 )

31. Collisions between one or several birds and an aircraft are therefore a common occurrence experienced by various economic actors operating in air transport. According to a 2011 US study on animal hazards, 99411 collisions between animals and aircraft have been reported since the creation of the Federal Aviation Administration (FAA) database in 1990. In the overwhelming majority of cases — that is 97.4% — the collision involved a bird. ( 10 ) In France, around 700 collisions between birds and aircraft are identified each year. ( 11 )

32. Pilots themselves have an important role in the management of wildlife hazards, whether before, during or after the flight. Before the flight, pilots acquaint themselves, in particular, with any available information on whether or not birds are present at or near the airport of departure and the airport of destination by means of messages published by Government air traffic control agencies. ( 12 ) If there is a risk, pilots may request an intervention in order to deter the birds. While taxiing, pilots must also carefully observe the runway to detect whether any birds are present and, if so, report that this is the case. Finally, a report must be submitted in the case of any bird strike. ( 13 )

33. It is therefore clear that a collision between a bird and an aircraft is in no way an event which is ‘out of the ordinary’, ( 14 ) in fact, it is quite the opposite. The frequency of such collisions and the fact that they are taken into consideration in the design of the aircraft, in the management of airports and at the different phases of a flight sufficiently demonstrate, in my view, that such an event is very much inherent in the normal exercise of the activity of an air carrier. Any other conclusion would lead to the legal classification as ‘extraordinary’ of an event which is perfectly ordinary.

34. The risk is certain, known, allowed for and present from the time the aircraft takes off or lands, that is to say it is inseparable from aeronautical activity itself. It seems clear, moreover, that nobody seriously disputes that characteristic.

35. The desired aim is, in fact, to transfer to the passenger the inconvenience which will result if that risk materialises.

36. To achieve that result, it would be necessary, as I pointed out it in my preliminary observations, for the Court to reconsider the rule it established in the judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618). However, in my view, there is an undeniable similarity between the two situations considered, even though the parties dispute this.

37. In fact, I see no reason for adopting reasoning different from that which the Court adopted in that judgment. It stated that a breakdown caused by the premature malfunction of certain components of an aircraft certainly constitutes an unexpected event. Nevertheless, it added, such a breakdown remains intrinsically linked to the very complex operating system of the aircraft, which is operated by the air carrier in conditions, particularly meteorological conditions, which are often difficult or even extreme, it being understood moreover that no component of an aircraft lasts forever. ( 15 ) The Court held that, in the course of the activities of an air carrier, that unexpected event is inherent in the normal exercise of an air carrier’s activity, as air carriers are confronted as a matter of course with unexpected technical problems. ( 16 )

38. It was argued at the hearing that an event such as a breakdown caused by the premature malfunction of an aircraft component and an event such as a collision between an aircraft and a bird were incomparable in as much as the first is an endogenous cause and the second an exogenous cause, that is to say, in plain language, according to whether the cause is internal or external to the aircraft. However, the question arises as to what legal basis would allow the Court to draw from that factor alone conclusions which are so diametrically opposed and so strongly undermine consumer protection.

39. That argument, which renders the application of a legal principle dependant on whether the risk is situated within the structure of the aircraft or outside it, in no way alters the legal nature of the event. Whether that risk is inside or outside the cabin, the only relevant feature in the light of the case-law of the Court is whether or not it is inherent in the normal exercise of the activity of the air carrier, which I believe I have demonstrated.

40. In other words, upholding the criterion proposed by the parties would amount to a reversal of settled case-law by substituting one legal criterion for another purely material criterion which cancels the first. Whether inside or outside the aircraft, the risk is inherent in the exercise of the normal activity of the air carrier.

41. It is quite clear that there would be an advantage for airlines, which, incidentally, the parties do not dispute, and a corresponding disadvantage for consumers. That is why, if there is a need to strike an economic balance between those differing interests by changing the law, it seems to me that it is for the EU legislature alone to act.

42. Similarly, at the hearing, reference was made to situations in which delays were caused by very serious meteorological conditions which would, in that case, warrant classification as ‘extraordinary circumstances’. However, it seems to me wholly unreasonable to equate a collision between an aircraft and a bird during the take-off or landing phase with an event of the nature of that raised at the hearing.

43. It could be otherwise only if the flight of birds arriving in large numbers temporarily prevented an aircraft from taking off or forced it to land at an alternative airport. Only that situation seems to me to be comparable, by analogical reasoning, with that created by exceptional meteorological conditions.

44. Consequently, I consider that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a collision between a bird and an aircraft, which had the effect of causing a delay of more than three hours in relation to the initially scheduled arrival time, does not constitute ‘extraordinary circumstances’ within the meaning of that provision and cannot therefore exempt the operating air carrier from its obligation to pay compensation.

45. Furthermore, I note that, in accordance with Article 13 of that regulation, the air carrier, when paying such compensation, may seek compensation from any person, including third parties, in accordance with the law applicable. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of their obligations under that regulation. ( 17 ) Thus, if an operating air carrier considered, in particular, that it was the responsibility of the airport operator to take adequate measures to deter birds and that this did not occur in its view, that carrier could therefore bring an action for damages.

46. Given the answer given to the first question, the second to fourth questions need not be answered in my view.

47. By its fifth question, the national court seeks to ascertain, in reality, how it is necessary to understand the two events which caused a delay of 5 hours 20 minutes to the arrival time in the light of the right to compensation to which air passengers on a delayed flight are entitled under Regulation No 261/2004.

48. It is apparent from the facts of the dispute in the main proceedings, as described by the national court, that the delay caused by the technical failure amounted to 1 hour 45 minutes. After the collision between a bird and the aircraft, the cumulative delay caused by those two events amounted to 5 hours 20 minutes. Therefore, that collision caused a delay of 3 hours 35 minutes. However, since, as I determined above, a collision between a bird and an aircraft does not constitute ‘extraordinary circumstances’ within the meaning of Regulation No 261/2004, mere delay caused by a collision between a bird and an aircraft is a sufficient basis for the right to compensation enjoyed by air passengers of the flight concerned. There is therefore no need, in my view, to consider the fifth question.

V – Conclusion

49. In the light of the foregoing, I propose that the Court reply to the Obvodní soud pro Prahu 6 (Prague 6 District Court) as follows: 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, must be interpreted as meaning that a collision between a bird and an aircraft, which had the effect of causing a delay of more than three hours in relation to the initially scheduled arrival time, does not constitute ‘extraordinary circumstances’ within the meaning of that provision and cannot therefore exempt the operating air carrier from its obligation to pay compensation.

( 1 ) Original language: French.

( 2 ) Regulation 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).

( 3 ) Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38).

( 4 ) Judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 35 and the case-law cited).

( 5 ) Judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 36 and the case-law cited).

( 6 ) See Decision No 2003/RM of the European Aviation Safety Agency (EASA) of 24 October 2003 at the following internet address: https://www.easa.europa.eu/system/files/dfu/decision_ED_2003_09_RM.pdf/

( 7 ) See p. 60 et seq of that decision.

( 8 ) See the technical information note issued by the French Civil Aviation Authority in March 2007 at the following internet address:

http://www.stac.aviation-civile.gouv.fr/publications/documents/peril_animalier.pdf

( 9 ) Ibid.

( 10 ) See the synthesis of the Airport Cooperative Research Program (ACRP) entitled ‘Bird harassment, repellent, and deterrent technology for use on and near airports’ available at the following internet address: http://onlinepubs.trb.org/onlinepubs/acrp/acrp_syn_023.pdf

( 11 ) See statistics from the Service technique de l’aviation civile (French Civil Aviation Technical Service) at the following internet address:

http://www.stac.aviation-civile.gouv.fr/risque_animalier/picaweb.php

( 12 ) Those messages are called Notices to Airmen (NOTAM).

( 13 ) See the following internet address:

http://www.stac.aviation-civile.gouv.fr/risque_animalier/prevention.php

( 14 ) See judgment of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43, paragraph 29).

( 15 ) Judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 41).

( 16 ) Judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 42).

( 17 ) See judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 46 and the case-law cited).