1 This request for a preliminary ruling concerns the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
2 The request has been made in proceedings between AirHelp Germany GmbH (‘AirHelp’) and Austrian Airlines AG concerning Austrian Airlines AG’s refusal to compensate a passenger whose connecting flight was affected by a long delay.
3 Recitals 1, 14 and 15 of Regulation No 261/2004 state: …
4 Article 5 of the regulation, entitled ‘Cancellation’, provides, in paragraphs 1 and 3 thereof: ‘1. In case of cancellation of a flight, the passengers concerned shall: … … … 3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, 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.’
5 Article 7 of that regulation, entitled ‘Right to compensation’, provides, in paragraph 1 thereof: ‘Where reference is made to this Article, passengers shall receive compensation amounting to:
6 A passenger had a confirmed single booking with Austrian Airlines for a connecting flight from Iași (Romania) to London-Heathrow (United Kingdom) via Vienna (Austria). The first flight of that connection, which was scheduled to arrive in Vienna on 8 March 2022, at 15:50, only reached that destination at 22:53, that is to say, with a delay of more than seven hours. As a result of that delay, that passenger missed his second flight and did not reach London-Heathrow, his final destination, until the following morning.
7 The aircraft that was originally scheduled to operate the flight from Iași to Vienna had, on its preceding flight - also on 8 March 2022 - shortly before it landed in Iași under storm clouds, been struck by lightning. Following a first safety inspection, which is mandatory after such an event, the technicians found visible damage to an instrument on the outside that aircraft, which is essential for flight safety and which is responsible, inter alia, for the measuring of air pressure. That finding led to a mandatory detailed safety inspection of that aircraft and, consequently, to its grounding for an indefinite period.
8 In those circumstances, Austrian Airlines decided to charter, on the same day, a replacement aircraft from Vienna in order to be able to operate the flight in question, albeit with a delay of several hours. In the meantime, in Iași, approximately 40 minutes before the departure of that aircraft from Vienna at 19:41, the technicians authorised the aircraft damaged by the lightning strike to fly again only to Vienna, in order to undergo a more thorough inspection on its arrival.
9 The passenger affected by the delay assigned the potential claim arising from that delay to AirHelp, which brought an action before the Bezirksgericht Schwechat (District Court, Schwechat, Austria) seeking to obtain from Austrian Airlines compensation of EUR 400 referred to in Article 7(1)(b) of Regulation No 261/2004. Before that court, AirHelp submitted, first, that a lightning strike does not constitute an extraordinary circumstance capable of releasing an operating air carrier from its obligation to pay the compensation provided for by that regulation and, second, that Austrian Airlines had not taken all reasonable measures to transport the passenger concerned as quickly as possible to his final destination.
10 By contrast, according to Austrian Airlines, both the damage caused to the aircraft struck by lightning and the mandatory safety inspection to which that aircraft was subject were unusual and, to that extent, ‘could not be planned for or influenced’, with the result that they should be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of that regulation. In any event, by choosing to charter a replacement aircraft, Austrian Airlines ensured the fastest alternative transportation of the passenger concerned from Iași to his final destination and, therefore, took all reasonable measures to remedy the delay.
11 By judgment of 30 October 2023, the Bezirksgericht Schwechat (District Court, Schwechat) dismissed AirHelp’s action, holding, inter alia, that the lightning strike must be classified as an ‘extraordinary circumstance’ within the meaning of Article 5(3). According to that court, a sufficient causal link could be established between, on the one hand, the lightning that struck the aircraft which operated the preceding flight and was also intended to operate the flight from Iași to Vienna and, on the other hand, the delay suffered by the passenger concerned. That court also held that, while the chartering of a replacement aircraft had enabled Austrian Airlines to avoid the cancellation of the flight from Iași to Vienna, which ultimately took place, albeit delayed and on the same day, it was reasonable not to carry out a fresh change of aircraft in favour of the aircraft damaged by the lightning strike, which, in practice, had been authorised to fly again from 19:00.
12 The Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), before which AirHelp brought an appeal against that judgment and which is the referring court, considers that the outcome of the dispute which it must resolve depends on the clarification, by the Court of Justice, of whether a lightning strike constitutes, in principle, an extraordinary circumstance within the meaning of Article 5(3) of Regulation No 261/2004. That court explains that, if the lightning strike were to be classified as an extraordinary circumstance, it would be required to examine, in addition, whether Austrian Airlines took all reasonable measures in order to avoid the delay suffered by the passenger concerned.
13 The referring court also states that, in accordance with its settled case-law, a lightning strike constitutes an extraordinary circumstance within the meaning of Article 5(3). However, it envisages departing from that case-law, which is not shared by other Austrian courts, accepting that the state of the atmosphere is inherent in the normal exercise of the activity of air carriers and that, consequently, unstable atmospheric conditions, including lightning, and aircraft damage arising from it could fall within the sphere of responsibility of those carriers, unlike a collision with a bird, classified as an extraordinary circumstance by the Court of Justice in paragraph 24 of the judgment of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342).
14 In those circumstances the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 5(3) of Regulation [No 261/2004] to be interpreted as meaning that an “extraordinary circumstance” exists where the aircraft with which the flight was to be operated was struck by lightning on its immediately preceding flight, leading to a mandatory aircraft safety check by certified technicians as a result of which the aircraft was cleared for service again only approximately five hours after the scheduled departure?’
15 By its single question, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the concept of ‘extraordinary circumstances’, referred to in that provision, covers a lightning strike to an aircraft with which a flight was to be operated, which led to mandatory safety inspections of that aircraft which resulted in its delayed return to service.
16 According to Article 5(3) of Regulation No 261/2004, an operating air carrier is not to be obliged to pay compensation in accordance with Article 7 of that regulation, if it can prove that the cancellation of a flight is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
17 According to settled case-law, Article 5(3) also applies where, on arrival, passengers suffer considerable delay to their flight, that is to say, equal to or in excess of three hours. Accordingly, that provision allows air carriers to rely on extraordinary circumstances in the event of such a delay in order to be released from the payment of the compensation claimed under Article 7 of Regulation No 261/2004 (see, to that effect, judgment of 7 July 2022, SATA International - Azores Airlines (Failure of the refuelling system), C‑308/21, EU:C:2022:533, paragraph 19 and the case-law cited).
18 Since Article 5(3) constitutes a derogation from the principle that passengers are entitled to compensation, and given the objective pursued by Regulation No 261/2004, which is, as is apparent from recital 1 thereof, to ensure a high level of protection for passengers, the concept of extraordinary circumstances must be strictly interpreted (judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 26 and the case-law cited).
19 The Court has already held that an operating air carrier may be able to rely on an extraordinary circumstance affecting a previous flight which it operates with the same aircraft in order to be released from its obligation to compensate passengers in the event of long delay or cancellation of a flight, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the subsequent flight (see, to that effect, judgment of 11 June 2020, Transportes Aéreos Portugueses, C‑74/19, EU:C:2020:460, paragraphs 53 and 54).
20 The concept of ‘extraordinary circumstances’ referred to in Article 5(3) of Regulation No 261/2004 refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that carrier’s actual control; those two conditions are cumulative and their fulfilment must be assessed on a case-by-case basis (judgment of 11 May 2023, TAP Portugal (Death of the co-pilot), C‑156/22 to C‑158/22, EU:C:2023:393, paragraph 18 and the case-law cited).
21 Recital 14 of Regulation No 261/2004, in the light of which Article 5(3) of that regulation must be read, states that extraordinary 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 operating air carrier.
22 In the present case, as regards, first of all, the first of the two cumulative conditions referred to in paragraph 20 above, it should be noted that an event such as a lightning strike on an aircraft, which has led to mandatory safety inspections of that aircraft, cannot be regarded as inherent in the normal exercise of the activity of the air carrier on the sole ground that the state of the atmosphere is inherent in that exercise and aircraft are designed in such a way as to be able to withstand the effects of a lightning strike. Therefore, such an event cannot, for those reasons alone, be excluded from the concept of ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’, within the meaning of Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation.
23 The EU legislature has, in that recital, included ‘meteorological conditions incompatible with the operation of the flight concerned’ - which includes, inter alia, the risk of the aircraft being struck by lightning - in the concept of ‘extraordinary circumstances’.
24 In that context, it should be noted that a lightning strike is, by its nature, comparable to a collision with a foreign body such as a bird, classified as an extraordinary circumstance by the Court within the meaning of Article 5(3) of Regulation No 261/2004 (see, to that effect, judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 24).
25 Moreover, where the aircraft affected by the lightning strike must undergo safety inspections, whether or not it has been damaged, such inspections, which are the sole result of a lightning strike, cannot be regarded as intrinsically linked to the operating system of that aircraft, even if that system is designed to withstand the lightning strike (see, by analogy, judgments of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 25, and of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 24).
26 In that regard, a lightning strike on an aircraft, which consequently makes safety inspections mandatory, differs in particular from the premature, or even unexpected, malfunction of certain components of an aircraft, which constitutes, in principle, an event intrinsically linked to the operating system of that aircraft (see, to that effect, judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraphs 21 and 24 and the case-law cited).
27 Therefore, it must be held that the lightning strike on an aircraft, which led to mandatory safety inspections of that aircraft, satisfies the first of the two cumulative conditions for classification as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.
28 As regards, next, the second condition, relating to the lack of control over the circumstances, relied on by the air carrier, it is apparent from the case-law of the Court that events whose origin is ‘internal’ must be distinguished from those whose origin is ‘external’ to the operating air carrier (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 39).
29 Events which result from the activity of the air carrier and from external circumstances which are more or less frequent in practice, but which the air carrier does not control because they have their origin in a natural event or that of a third party, are thus covered by the concept of ‘external events’. (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 41).
30 In that context, the frequency of the event in question is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded (see, by analogy, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraphs 36 and 37).
31 In the light of the foregoing, the lightning strike on an aircraft, which has led to mandatory safety inspections of that aircraft, must be regarded as an event which is the result of a natural event outside the actual control of the air carrier concerned (see, by analogy, judgment of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 26).
32 It follows that the second cumulative condition for there to be ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 is also satisfied.
33 It is important, in that regard, to note that the classification of such a lightning strike as an ‘extraordinary circumstance’, within the meaning of Article 5(3), makes it possible to ensure the requirement of passenger safety aboard an aircraft - which is an objective pursued by Regulation No 261/2004, as specified in recital 1 thereof - and which means that air carriers must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flights over such a requirement of safety (see, to that effect, judgments of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 25; of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 28; and of 13 June 2024, Finnair (Fuel gauge design defect), C‑385/23, EU:C:2024:497, paragraph 38).
34 As regards the ‘reasonable measures’, within the meaning of Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, which such a carrier ought to have taken in order to avoid the occurrence of extraordinary circumstances, as a condition for its release from the obligation to pay the passenger concerned the compensation provided for in Article 7 of Regulation No 261/2004, it is settled case-law that only the measures which may be the carrier’s responsibility must be taken into account, provided that, in particular at the technical and administrative levels, such measures can actually be taken, directly or indirectly, without requiring the carrier to make intolerable sacrifices in the light of the capacities of its undertaking, and that, in that case, that carrier has shown that those measures have been taken (see, to that effect, judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 48).
35 In that regard, it is important to note that although preventive measures, such as measures to circumvent areas affected by storms, make it possible to avoid a lightning strike, it is particularly difficult, despite the meteorological data and modern routes, and as Austrian Airlines observes in its reply to the written questions raised by the Court, to completely exclude the possibility of crossing some of those areas.
36 As regards, moreover, the ‘reasonable measures’, within the meaning of Article 5(3) of Regulation No 261/2004, read in the light of recital 15 thereof, which an air carrier ought to have taken in order to avoid delays or cancellations of flights which are the result of extraordinary circumstances which could not have been avoided by reasonable measures such as those referred to in paragraph 34 above, it is settled case-law that an air carrier whose flight has been subject to a long delay or has been cancelled as a result of the occurrence of such circumstances must still establish, in order to be released from the obligation to pay compensation provided for in Article 7 of Regulation No 261/2004 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 or long delay of that flight (see, to that effect, judgments of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 28 and 29, and of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 19).
37 It is for the referring court to assess, in the light of all the circumstances of the dispute in the main proceedings and the evidence adduced by the air carrier concerned, whether, short of making intolerable sacrifices in the light of the capacities of its undertaking at the relevant time, the air carrier has adopted such measures, in particular by deploying all the resources at its disposal to ensure a reasonable, satisfactory and timely re-routing of the passenger affected by a long delay or cancellation of a flight, in accordance, in particular, with the objective of guaranteeing a high level of protection for passengers, referred to in recital 1 of that regulation (see, to that effect, judgment of 7 July 2022, SATA International - Azores Airlines (Failure of the refuelling system), C‑308/21, EU:T:2022:533, paragraph 27 and the case-law cited).
38 In the light of all of the foregoing, the answer to the question referred is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the concept of ‘extraordinary circumstances’, referred to in that provision, covers a lightning strike to an aircraft with which a flight was to be operated, which led to mandatory safety inspections of that aircraft which resulted in its delayed return to service.
39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.