C. van der Lans v Koninklijke Luchtvaart Maatschappij NV.
Date: 2015-09-17
15. Ms van der Lans argues that, in this case, KLM cannot rely on the occurrence of extraordinary circumstances. The delay to that flight was caused by a technical problem. In the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771), the Court held that the resolution of technical problems is inherent in the exercise of the activity of the air carrier concerned and cannot be classified as extraordinary circumstances.
17. In that connection, the referring court seeks to clarify the interpretation to be given to the expressions ‘extraordinary circumstances’ and ‘all reasonable measures’ in that provision, in particular, whether account must be taken, in that regard, of recital 14 in Regulation No 261/2004 and the relevant case-law of the Court, in particular the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771).
18. In those circumstances, the Rechtbank Amsterdam decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling:
‘(1) How must the concept of “event” in recital 14 of the preamble in Regulation No 261/2004 be interpreted?
(2) Having regard to paragraph 22 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771), extraordinary circumstances such as those referred to in recital 14 do not coincide with the occurrences listed as examples in the second sentence of recital 14, occurrences cited as events by the Court of Justice in paragraph 22. Is it correct that the events as referred to in the paragraph 22 of that judgment are not the same as the “event” in recital 14 of the preamble?
(3) What should be understood by the concept of extraordinary circumstances which, according to paragraph 23 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771), surround the event and which are “unexpected flight safety shortcomings” as referred to in the aforesaid recital 14 if, in the light of paragraph 22, unexpected flight safety shortcomings cannot themselves constitute extraordinary circumstances but may only produce such circumstances?
(4) It is apparent from paragraph 23 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771) that a technical problem can be considered to be covered by “unexpected flight safety shortcomings” and is therefore an “event” within the meaning of paragraph 22 of that judgment; the circumstances surrounding that event may nevertheless be regarded as extraordinary if they relate to an event which is not inherent in the normal exercise of the activities of the air carrier and beyond the actual control of that carrier on account of its nature or origin, as provided in paragraph 23 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771); according to paragraph 24 thereof, the resolution of a technical problem which can be traced back to poor maintenance of an aircraft is inherent in the normal exercise of an air carrier’s activity; therefore, according to paragraph 25 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771) such technical problems cannot constitute extraordinary circumstances. It appears to follow from those paragraphs that a technical problem which is covered by “unexpected flight safety shortcomings” is simultaneously an event which may be surrounded by extraordinary circumstances and may itself constitute an extraordinary circumstance. How should paragraphs 22 to 25 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771) be interpreted in order to resolve that apparent contradiction?
(5) The words: “inherent in the normal exercise of an air carrier’s activity” are consistently interpreted in the case-law of the lower courts as: “associated with the normal activities of the airline” — which is moreover an interpretation which is compatible with the Netherlands word “inherent” (not the authentic text of the judgment) — so that, for example, collisions with birds or ash clouds are also not regarded as events within the meaning of paragraph 23 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771). Other case-law emphasises the words: “and is beyond the actual control of that carrier on account of its nature or origin”, likewise in paragraph 23 of that judgment. Must “inherent in” be interpreted as meaning that only events which are within the actual control of the air carrier are covered by that concept?
(6) How should paragraph 26 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771) be read, or rather, how should that paragraph be interpreted, in the light of the answer of the Court of Justice to questions 4 and 5?
(7) (a) If question 6 is answered to the effect that technical problems which may be considered to be unexpected flight safety shortcomings constitute extraordinary circumstances which may justify invoking Article 5(3) of Regulation No 261/2004 if they arise from an event which is not inherent in the exercise of the activities of the airline and is beyond the actual control of the latter, does that then mean that a technical problem which arose spontaneously and is not attributable to poor maintenance and was moreover not detected during routine maintenance checks (the “A-D Checks” and “the Daily Control”) can or cannot constitute an extraordinary circumstance — on the assumption that it could not be detected during the regular maintenance operations — because then no event as referred to in paragraph 26 can be identified and it is therefore also not possible to determine whether such an event is inherent in the exercise of the activities of the airline and is thus beyond the control of the air carrier?
(b) If question 6 is answered to the effect that technical problems which may be considered to be unexpected flight safety shortcomings are events as referred to in paragraph 22 and the technical problem arose spontaneously and is not attributable to poor maintenance and was moreover not detected during routine maintenance checks (“the A-D Checks” and “the Daily Control”), is that technical problem inherent or not inherent in the exercise of the activities of the airline and is it or is it not thus beyond the actual control of the airline within the meaning of the aforementioned paragraph 26?
(c) If question 6 is answered to the effect that technical problems which may be considered to be unexpected flight safety shortcomings are events as referred to in paragraph 22 of the judgment in Wallentin-Hermann  (C‑549/07, EU:C:2008:771) and the technical problem arose spontaneously and is not attributable to poor maintenance and was moreover not detected during routine maintenance checks (“the A-D Checks” and “the Daily Control”), what circumstances should then surround that technical problem and when should those circumstances be regarded as extraordinary so that they may be relied upon for the purposes of Article 5(3) of Regulation No 261/2004?
(8) An air carrier can rely on extraordinary circumstances only if it 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. Is it correct to conclude that the taking of all reasonable measures refers to the avoidance of the occurrence of extraordinary circumstances and not to the taking of measures to keep the delay within the three-hour limit referred to in Article 5(1)(c)(iii) of Regulation No 261/2004 in conjunction with paragraphs 57 to 61 of the judgment in Sturgeon and Others  (C‑402/07 and C‑432/07, EU:C:2009:716)?
(9) In principle, there are two types of measures to limit delays caused by technical problems to a maximum of three hours, namely, on the one hand, holding stocks of spare components in various parts of the world, thus not only at the home base of the air carrier, and, on the other hand, the rebooking of the passengers of the delayed flight. In determining the stock levels which they hold and the places in the world where they do so, may the air carriers have regard to what is customary in the aviation world, including for carriers which are only partially covered by the operation of Regulation No 261/2004?
(10) In answering the question whether all reasonable measures were taken to limit the delay which occurred as a result of technical problems which have an effect on the flight safety shortcomings, must the court take account of circumstances which aggravate the consequences of a delay, such as the circumstance that the aircraft affected by the technical problems, before returning to its home base, must, as in the present case, call at a number of airports, which may result in an accumulation of time lost?’
Consideration of the questions referred for a preliminary ruling
Admissibility
20. According to settled case-law, the Court may decline to rule on a question referred for a preliminary ruling by a national court only where, inter alia, it is quite obvious that the provision of EU law referred to the Court for interpretation is incapable of applying (judgment in Caja de Ahorros y Monte de Piedad de Madrid , C‑484/04, EU:C:2010:309, paragraph 19 and the case-law cited).
25. The need for a uniform interpretation of a provision of EU law means that, where there is divergence between the various language versions of the provision, the latter must be interpreted by reference to the context and purpose of the rules of which it forms part (see, to that effect, judgment in DR and TV2 Danmark , C‑510/10, EU:C:2012:244, paragraph 45, and Bark , C‑89/12, EU:C:2013:276, paragraph 40).
26. In that regard, it suffices to state that Regulation No 261/2004, as is clear from recitals 1 and 2 in the preamble thereto, aims to ensure a high level of protection for passengers (see judgments in IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraph 69, and Emirates Airlines , C‑173/07, EU:C:2008:400, paragraph 35).
32. It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court of Justice may have to reformulate the questions referred to it (see, inter alia, judgment in Le Rayon d’Or , C‑151/13, EU:C:2014:185, paragraph 25 and the case-law cited).
35. Next, it should be recalled that 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 (judgment in Wallentin-Hermann , C‑549/07, EU:C:2008:771, paragraph 20).
36. Finally, as regards, more particularly, technical problems encountered by an aircraft, it follows from the case-law of the Court that such problems may be included among ‘unexpected flight safety shortcomings’, and although a technical problem in an aircraft may be amongst such shortcomings, the fact remains that the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 in that regulation, 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 (see, to that effect, judgment in Wallentin-Hermann , C‑549/07, EU:C:2008:771, paragraph 23).
37. Since the functioning of aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course in the exercise of their activity with such problems. In that connection, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004 (see, to that effect, judgment in Wallentin-Hermann , C‑549/07, EU:C:2008:771, paragraphs 24 and 25).
38. Nevertheless, certain technical problems may constitute extraordinary circumstances. That would be the case in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism (see, to that effect, judgment in Wallentin-Hermann , C‑549/07, EU:C:2008:771, paragraph 26).
41. Next, it must be observed, first, that it is true that a breakdown, such as that at issue in the main proceedings, caused by the premature malfunction of certain components of an aircraft, constitutes an unexpected event. Nevertheless, 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.
42. Therefore, it must be 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.
43. Second, the prevention of such a breakdown or the repairs occasioned by it, including the replacement of a prematurely defective component, is not beyond the actual control of that carrier, since the latter is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business.
46. In that regard, it must be recalled that the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of the regulation provides. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of those obligations (judgment in Sturgeon and Others , C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 68 and the case-law cited).