Marcela Pešková and Jiří Peška v Travel Service a.s.
Date: 2017-05-04
19


As a preliminary point, it should be noted that the EU legislature has laid down the obligations of air carriers in the event of cancellation or long delay of flights (that is, a delay equal to or in excess of three hours) in Article 5(1) of Regulation No 261/2004 (judgments of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 40).
20


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 Regulation No 261/2004 if the carrier can prove that the cancellation or delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken (see, to that effect, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 69, and of 31 January 2013, McDonagh, C‑12/11, EU:C:2013:43, paragraph 38).
21


In this respect, recital 14 of Regulation No 261/2004 states that 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 air carrier (see judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 21).
22


Thus, the Court has deduced therefrom that 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 (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 23; of 31 January 2013, McDonagh, C‑12/11, EU:C:2013:43, paragraph 29; and of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraph 36).
23


Conversely, it is clear from the Court’s case-law that the premature failure of certain parts of an aircraft does not constitute extraordinary circumstances, since such a breakdown remains intrinsically linked to the operating system of the aircraft. That unexpected event is not outside the actual control of the air carrier, since it is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business (see, to that effect, judgment of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraphs 41 and 43).
24


In the present case, a collision between an aircraft and a bird, as well as 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. Accordingly, that collision must be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.
28


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 (see judgment of 12 May 2011, Eglītis and Ratnieks, C‑294/10, EU:C:2011:303, paragraph 25 and the case-law cited).
29


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 three hours in arrival (see, to that effect, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 61, and of 12 May 2011, Eglītis and Ratnieks, C‑294/10, EU:C:2011:303, paragraph 25).
30


Thus, 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 (see, to that effect, 12 May 2011, Eglītis and Ratnieks, C‑294/10, EU:C:2011:303, paragraph 30).
36


Furthermore, and insofar as it is apparent from the order for reference that the owner of the aircraft had refused to recognise the authorisation of the local firm which carried out the check of the aircraft concerned, it must be recalled that the obligations fulfilled by air carriers under Regulation No 261/2004 are so fulfilled without prejudice to that carrier’s right to seek compensation from any person who caused the delay, including third parties, as provided for in Article 13 of that regulation. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of those obligations (judgment of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraph 46 and the case-law cited).
43


It follows therefrom that, in order to assess whether an air carrier has actually taken the necessary preventative measures in order to reduce and even prevent the risks of any collisions with birds enabling it to be released from its obligation of compensating passengers under Article 7 of that regulation, 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.
57


It is settled case-law that, despite the fact that, having regard to the division of competences in the preliminary ruling procedure, it is solely for the national court to determine the subject matter of the questions which it submits to the Court, the Court may nonetheless refuse to rule on a question referred for a preliminary ruling by a national court where the problem is purely hypothetical or where the Court does not have before it the factual material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment of 17 March 2016, Aspiro, C‑40/15, EU:C:2016:172, paragraph 17 and the case-law cited).