André Moens v Ryanair Ltd.
Date: 2019-06-26
14


The EU legislature has laid down the obligations of air carriers in the event of the cancellation or long delay of a flight (that is, a delay equal to or in excess of 3 hours) in Article 5(1) of Regulation No 261/2004 (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 19 and the case-law cited).
15


By way of derogation from Article 5(1) of Regulation No 261/2004, recitals 14 and 15 and Article 5(3) of that regulation state that an air carrier is to be released from its obligation to pay passengers compensation under Article 7 of the regulation if the carrier can prove that the cancellation or delay equal to or in excess of 3 hours in arrival is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken or, where such circumstances do arise, that it adopted 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 prevent that situation from resulting in the cancellation or long delay of the flight in question (judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 19 and the case-law cited).
16


According to settled case-law, events may be classified as ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control, both conditions being cumulative (judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 20 and the case-law cited).
18


With regard to the question as to whether the presence of petrol on a runway of an airport which led to its closure and, consequently, the long delay of a flight to or from that airport, falls within the concept of ‘extraordinary circumstances’ within the meaning of that provision, when the petrol in question does not originate from an aircraft of the carrier that operated that flight, it should be noted that, logically, such a circumstance cannot be regarded as intrinsically linked to the operation of the aircraft that made that flight (see, by analogy, judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 24).
19


Consequently, such a circumstance cannot be regarded as inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned (see, by analogy, judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 26).
20


Furthermore, it is beyond the effective control of the air carrier concerned, given that the maintenance of the runways is in no way within its competence (see, to that effect, judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 26) and that the decision of the competent airport authorities to close runways at an airport is binding on air carriers.
25


Thus, since not all extraordinary circumstances confer exemption, the onus is on the air carrier seeking to rely on them to establish 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 (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 28).
26


That air carrier must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, 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 or its delay equal to or in excess of 3 hours in arrival (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 29).
27


Thus, the Court has established an individualised and flexible concept of ‘reasonable measures’, leaving to the national court the task of assessing whether, in the circumstances of the particular case, the air carrier could be regarded as having taken measures appropriate to the situation (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 30), while stating that only those measures which can actually be its responsibility must be taken into account, excluding those which are the responsibility of other parties, such as, inter alia, airport managers or the competent air traffic controllers (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 43).