In the last few years the Court of Justice of the European Union has frequently been asked to issue preliminary rulings on the concept of “extraordinary circumstances” which figures in Flight Compensation Regulation No 261/2004 (“Regulation EU261”).

Article 5.3 of Regulation EU261 provides that an air carrier is to be released from its obligation to pay passengers compensation in accordance with Article 7 if it can prove that the cancellation or the delays are caused by “extraordinary circumstances” which could not have been avoided. The concept of “extraordinary circumstances” is not defined by the Regulation EU261 and thus has been the subject of these requests for preliminary rulings.

Regulation EU261 itself deals only with this concept in its recitals. Recital 14 states that “As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. 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 operating air carrier.” Recital 15 provides that “Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.”

The CJEU has defined the concept of “extraordinary circumstance” in its judgment of 22 December 2008 (CJUE, 22 December 2008, C-549/07, Wallentin-Hermann). According to the Court it is an event which “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.” By referring to the inherence criterion, the CJEU has in fact added a new criterion, which, contrary to the avoidance criterion (see Recital 14), does not feature in the text of the Regulation itself.

Despite other well-known judgments (e.g. CJUE, 4 May 2017, C-315/15, Peskova) dealing with the concept of “extraordinary circumstances”, national courts continue to frequently refer requests for preliminary rulings to the CJEU in order to know whether or not a particular event constitutes an extraordinary circumstance (e.g. lightning, fog, traffic controllers strike, etc.). The number of these cases, linked with the conflicting decisions issued by national courts throughout the EU is an indication of the considerable degree of legal uncertainty that reigns with respect to this important question.

By Charles Price & Sébastien Popijn