Germanwings GmbH v Wolfgang Pauels.
Date: 2019-04-04
18


It must be borne in mind 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 (see judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 19 and the case-law cited).
19


Recitals 14 and 15 and Article 5(3) of that regulation, as interpreted by the Court, 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 of three hours or more is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken (see judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 20 and the case-law cited) and, 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 avoid that situation from resulting in the cancellation or long delay of the flight in question, without the air carrier being required to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time (see, to that effect, judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraphs 29 and 34).
20


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 (see, to that effect, judgments of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 23, and of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 22), since both conditions are cumulative (judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 34).
21


As to whether damage to aircraft tyres, which are essential to the operation of aircraft, may be regarded as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, it must, first of all, be noted that the premature, or even unexpected, malfunction of certain components of a particular aircraft constitutes, in principle, an unexpected event intrinsically linked to the operating system of that aircraft (see, to that effect, judgments of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraphs 41 and 42, and of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 23).
22


Air carriers are regularly faced with such malfunctioning in the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 24; order of 14 November 2014, Siewert, C‑394/14, EU:C:2014:2377, paragraph 19 and judgment of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraphs 37 and 42).
24


However, where the malfunctioning in question is the sole result of the impact of a foreign object, which must be proven by the air carrier, such malfunctioning cannot be regarded as intrinsically linked to the operating system of that aircraft.
25


That is, inter alia, true of damage to an aircraft caused by its collision with a bird (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 24) and, as in the case in the main proceedings, of damage to a tyre caused by a foreign object, such as loose debris, lying on the airport runway.
26


Therefore, if the malfunctioning of a tyre is the sole result of impact with a foreign object lying on the airport runway, it cannot be regarded as inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned. In addition, in view of the particular constraints to which the air carrier is subject during take-off and landing operations, related inter alia to the speed at which those operations are conducted and the need to ensure passenger safety aboard, and of the fact that the air carrier is not responsible for clearing the runway, such circumstances are outside that carrier’s actual control.