Andrejs Eglītis and Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija.
Date: 2011-05-12
23. As a preliminary point, it should be noted that, under Article 5(1) of Regulation No 261/2004, in the event of cancellation of a flight, the passengers concerned are to be offered by the air carrier, on the conditions laid down in that paragraph, firstly, assistance in accordance with Article 8 of that regulation, that is, the right to reimbursement or re-routing, secondly, free of charge, meals, accommodation and telephone calls as provided for in Article 9 of the regulation and, thirdly, flat-rate compensation in accordance with the rules laid down in Article 7 of the regulation, unless they have been informed in good time that the flight has been cancelled.
24. However, under Article 5(3) of Regulation No 261/2004, by way of exception to the provisions of Article 5(1), the air carrier is released from one of its obligations, that is, the one requiring that passengers be paid compensation, 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.
25. In that regard, at paragraph 40 of Case C‑549/07 Wallentin-Hermann [2008] ECR I‑11061, the Court held 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. Indeed, that air carrier must, as the Court specified at paragraph 41 of that judgment, 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.
29. With regard, firstly, to the determination, generally, of a minimum reserve time to which the national court refers, it should be noted that, at paragraph 42 of Wallentin-Hermann , the Court held, in that connection, that it was necessary to ascertain whether the air carrier concerned had taken measures appropriate to the particular situation, that is to say, measures which, at the time of the occurrence of the extraordinary circumstances whose existence the air carrier is to establish, met, inter alia, conditions which were technically and economically viable for that carrier.
30. The Court therefore 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.
33. In the context of such an assessment, the only issue to matter is the ability of the air carrier to operate the programmed flight in its entirety – the flight being regarded as a ‘unit’ of transport performed by an air carrier which fixes its itinerary (see, to that effect, Case C‑173/07 Emirates Airlines [2008] ECR I‑5237, paragraph 40) – despite the fact that extraordinary circumstances have given rise to some delay. A delay as initially noted, at the time when those extraordinary circumstances come to an end or in relation to the time scheduled for departure, may increase thereafter, on account of a series of various secondary complications connected to the fact that the flight at issue could not be properly operated, in accordance with the scheduled timetable, such as difficulties related to the reallocation of air corridors or accessibility conditions at the destination airport, including the possible total or partial closure of that airport for part of the night. The result could be that, by the end of the flight, the delay will ultimately be appreciably longer than the delay as initially noted.