Revising Air Passenger Rights in the European Union
Extraordinary circumstances clause in the Regulation 261/2004: unexpectedflight safety shortcomings from a legal certainty perspective.
Revising Air Passenger Rights in the European Union
Extraordinary circumstances clause in the Regulation 261/2004: unexpected flight safety shortcomings from a legal certainty perspective.
Willem Weijland Student no. 6192041
Master International and European Law, Competition Law and Regulation. University of Amsterdam
Table of contents
1. Introduction 2
2. Extraordinary circumstances in the Regulation 261/2004 5
2.1. Unexpected flight safety shortcomings from a legal certainty perspective 7
2.1.1. Airlines vs. passengers: possibility of divergent interpretations? 8
2.1.2. Restrictive interpretation of the Court of Justice of the European Union 9
2.1.3. Extensive interpretation of the National Enforcement Bodies 9
2.1.4. National Courts on unexpected flight safety shortcomings 12
2.2. Conclusion on the current level of legal certainty 16
3. Alternative systems of air passenger protection 18
3.1. Self-‐regulation of air passenger protection 18
3.1.1. Situation before the introduction of the Regulation 261/2004 20
3.2. Unlimited liability of airlines in case of delays and cancellations 21
3.2.1. Unlimited liability currently in the Regulation 261/2004 23
4. Amendment proposals of the European Commission and European Parliament 25
4.1. Commission proposal of a non-‐exhaustive list 25
4.2. European Parliament proposal of an exhaustive list 27
5. Conclusion 28 6. Bibliography list 31
1. Introduction
The airline industry is a very dynamic marketplace. Over the past few decades, flying has changed from being a luxury for the happy few to a mode of transport for the masses.1 With ticket prices sometimes lower than train fares and oil prices at an all-‐time high, airlines face thin profit margins and more than ever struggle to stay alive.2 Governments have tried to keep up with the fast changing industry in trying to ensure a level playing field and protecting consumer interests at the same time. This has resulted in an airline industry governed by a complex system of regulations, voluntary codes of conduct and mandatory rules.
These mandatory rules and regulations are implemented through international conventions such as the Chicago Convention3 and the Montreal Convention4, but also by national and regional consumer protection authorities. The European Union (hereafter, the “EU”) is a good example of a regional authority that has far reaching powers in the area of consumer protection and transportation. Currently binding measure of the EU in this field is the Air Passenger Rights Regulation 261/2004 (hereafter, the “Regulation”), which came into force on February 17, 2005. 5 It repealed Regulation (EEC) No 295/91, which only addressed the issue of passengers denied boarding.6 The Regulation additionally established minimum levels of assistance and compensation for passengers affected by long delays or cancellations. Although the Regulation undoubtedly has helped in creating an internal air passenger market where consumers departing from European airports are equally protected everywhere around the
1 For example the Massachusetts Institute of Technology has established that Low Cost Carriers Domestic Traffic in the USA alone has more than tripled between 1995 and 2005. Source:
http://web.mit.edu/airlines/analysis/analysis_airline_industry.html [accessed 31 October 2014].
2 According to research conducted by IATA, airlines make an average profit of $5,65 per passenger with a profit margin of only 2,5%. http://www.iata.org/whatwedo/Documents/economics/IATA-‐economic-‐briefing-‐financial-‐
forecast-‐March-‐2014.pdf [accessed 23 November 2014].
The following list provides an overview of the many airlines (recently) going out of business in Europe.
http://en.wikipedia.org/wiki/List_of_defunct_airlines_of_Europe [accessed 23 November 2014].
3 Convention on International Civil Aviation, conclusion date 7 December 1944, 61 Stat. 1180; 15 U.N.T.S. 295, entry into force 4 April 1947.
4 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, conclusion date 28 May 1999, 2242 U.N.T.S. 309; S. Treaty Doc. No. 106-‐45 (2000), entry into force 4-‐11-‐2003 (hereafter, the “Montreal Convention”).
5 Regulation (EC) 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) 295/91, OJ L46/1 (hereafter, the “Regulation”), available at http://eur-‐lex.europa.eu/legal-‐
content/EN/TXT/HTML/?uri=CELEX:32004R0261&from=NL [accessed 5 January 2015].
6 Council Regulation (EEC) 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport (1991), OJ L 36/5-‐7.
continent7, the Regulation has also received wide criticism from air carriers and their shareholders since it imposes a potentially large financial burden on them.8
The Regulation however contains an ‘extraordinary circumstances clause’ which relieves airlines of their obligation to pay compensations in case a delay or cancellation was caused by circumstances that cannot be attributed to the air carrier (force majeure), such as bad weather conditions and acts of terrorism. Airlines can also escape liability under this clause in case of ‘unforeseen flight safety shortcomings’.9 The Regulation is unclear though about when exactly this defense may be invoked, which has created confusion regarding the correct explanation of this concept.10 This can be harmful to air passengers as they might not receive the intended level of protection, but also to airlines as they will be unsure about the scope of their liability.
In this thesis I will evaluate the effectiveness of the extraordinary circumstances clause pertaining to unforeseen flight safety shortcomings from a legal certainty standpoint. Legal certainty, as a general principle in European Union law, means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial rights or obligations.11 As subjects to a passengers rights system, passengers and
airlines should be able to clearly identify situations in which compensation is due, which ideally results in consensus on the interpretation of a Regulation. In case a disagreement does arise, decisions by government institutions should be consistent and in accordance with the correct interpretation, thereby improving the predictability of the legal implications of the passenger rights system for passengers and for airlines. When those conditions are satisfied, this will result in a more efficient passenger rights process that needs less government involvement and that results in fewer cases of litigation. By following the typical steps a passenger would (ultimately) have to take in controversial cases I will assess the legal certainty of passengers and airlines in the current situation and identify weak spots. Additionally, now
7 The Regulation additionally applies to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, if the operating air carrier of the flight concerned is a Community carrier, unless the passengers received benefits or compensation and were given assistance in that third country.
8 See the IATA press release regarding proposed legal measures against Regulation 261/2004:
http://www.iata.org/pressroom/pr/Pages/2004-‐04-‐21-‐01.aspx [accessed 31 October 2014].
9 The Regulation, Article 5(3).
10 See for example Heere, Wybo P. "From Lowlands to High Skies–A Multilevel Jurisdictional Approach towards Air Law. Essays in Honour of John Balfour, edited by Mendes de Leon, Pablo." Air and Space Law 39.6 (2014), pp.257. 11 Eijsbouts, Willem Thomas, et al. "Europees recht, algemeen deel: sinds het Verdrag van Lissabon" (2010), pp. 267-‐273.
that the European Commission has proposed to revise the Regulation, I will not only evaluate the proposed amendment but also two alternative systems that in my opinion have the potential to improve legal certainty and could replace the current system.
In the first chapter of this thesis, I will analyze how the extraordinary circumstances clause and more specifically the concept or unexpected flight safety shortcomings has been drafted in the Regulation and how it has been interpreted in the period after the introduction of the Regulation. My research will show that high levels of legal certainty can for example only be achieved if the National Enforcement Body (hereafter “NEB”, the national authority where consumers should first report when they believe the airline has wrongfully denied their claim) and the respective national court draw similar conclusions, what in reality is often not the case. Different outcomes of the passenger rights process between Member States in similar situations would also be a strong indication of low legal certainty. Therefore I have chosen to compare the passenger rights process in the UK and the Netherlands. Special attention will be paid to cases in which the various parties (CJEU, national courts and NEBs) have disagreed. From this I will be able to draw conclusions regarding the foreseeability of the legal implications of the Regulation. To get a better insight on the airlines’ perspective and its behavior in extraordinary circumstances cases I have interviewed the Legal Counsel Consumer Rights of KLM Royal Dutch Airlines.12
Next, I will analyze two alternative systems of air passenger protection, starting with the option of removing the Regulation altogether and leaving it to the free market process to establish acceptable (to EU standards) levels of consumer protection. For this I will look into whether the airlines offered air passengers any compensation for flights’ delays and cancellations in the period before the implementation of the Regulation. Was the Regulation really necessary or did airlines manage to create transparent and effective policies (legal certainty) without the interference of the European institutions? The second alternative to the current situation is the introduction of an unlimited liability of airlines for flights’ delays and cancellations. The evaluation thereof will be conducted to determine whether, and if so, why
12 The Legal Counsel Consumer Rights decides on a daily basis if delayed or cancelled KLM passengers are entitled to compensation under Regulation 261/2004 and which claims are denied due to extraordinary circumstances. He/she advises the Operations Control Centre which flights should be cancelled in case of expected capacity reductions, taking into account short connections and facilities at different airports. In general the Legal Counsel Consumer Rights oversees judicial developments and makes sure the airline complies with the most recent legislation and regulations. Finally he/she coordinates KLM’s defense in legal proceedings regarding consumer rights.
the extraordinary circumstances escape is actually a necessity if airlines’ liability is regulated on a European level. I will consider what consequences the removal of this defense would have on legal certainty of all parties involved.
In the fourth chapter I will look more closely at the proposed amendments of the Regulation as drafted by the European Commission13 and by the European Parliament.14 Here, I consider the refinement and clarification of the extraordinary circumstances clause as the third alternative to the current situation.
After reviewing whether the current system of extraordinary circumstances should be revised, and which alternative would best be able to create and maintain a high level of legal certainty both for air passengers and airlines, I hope to be able to answer the following question: Is
revision of the current extraordinary circumstances clause in the Regulation 261/2004 necessary in order to improve legal certainty of air passengers as to their remedies, but also of airlines with regards to their scope of liability?
2. Extraordinary circumstances in the Regulation 261/2004
Under Article 7 of the Regulation air passengers whose flights are cancelled (or delayed) have the right to financial compensation,15 which can vary between €125 and €600 per ticket,
depending on the distance of the flight and the actual arrival time.16 However, flights cancelled
13 European Commission, Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, 13 March 2013, COM (2013) 130 final -‐ 2013/0072 COD (Hereafter, the “Commission Proposal”). Available at http://eur-‐
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0130:FIN:EN:PDF [accessed 5-‐01-‐2015].
14 European Parliament, European Parliament legislative resolution of 5 February 2014 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, 5 February 2014, COM (2013) 130 – C7-‐0066/2013 – 2013/0072 COD (hereafter, the “European Parliament Proposal”). Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-‐
//EP//TEXT%20TA%20P7-‐TA-‐2014-‐0092%200%20DOC%20XML%20V0//en [accessed 5 January 2015].
15 Article 5 and 7 of Regulation 261/2004 offer passengers the right to compensation in case of cancellation. Article 5(3) relieves the airline of this duty in case the cancellation is caused by extraordinary circumstances. Article 9 offers unlimited care to passengers in case of cancellations as well as delays, irrespective of extraordinary circumstances being present. In the Sturgeon case (see footnote 13) the CJEU has extended the application of the Regulation, establishing that Article 7 compensations should also be paid when delays exceed three hours. 16 In the Germanwings v Ronny Henning case, the CJEU has defined the concept of ‘arrival time’ as the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft. Case C-‐452/13 Germanwings v Ronny Henning (2014)
(or delayed) due to extraordinary circumstances are an exception to this rule pursuant to Article 5(3) of the Regulation. Affected passengers are also entitled to reimbursement or re-‐ routing and basic care such as meals and hotel accommodations for the duration of their delay,
regardless of the existence of extraordinary circumstances.17 In order to successfully avoid compensation under Article 7 of the Regulation, the air carrier has to prove that the cancellation was caused by extraordinary circumstances:
“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.“18
The Regulation does not elaborate on what requirements should be met in order for certain situations to qualify as extraordinary circumstances. Recital 14 in the preamble of the Regulation however, gives five examples as to what events could qualify as extraordinary circumstances:
" 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 have 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." 19
The situations of political instability, adverse weather, security risks and strikes are relatively straightforward. The concept of unexpected flight safety shortcomings is however difficult to define without further explanation. Does it only include damage to the aircraft by foreign objects during the flight? Are technical defects that are discovered after departure also included? If so, what about technical defects discovered during regular maintenance? The Regulation does not clarify unexpected flight safety shortcomings, which is why this concept
ECLI:EU:C:2014:2141, paragraph 27. Available at
http://curia.europa.eu/juris/document/document.jsf?text=&docid=157348&pageIndex=0&doclang=EN&mode=re
q&dir=&occ=first&part=1&cid=396811 [accessed 16 January 2015].
17 The Regulation, Article 9. 18 The Regulation, Article 5(3). 19 The Regulation, Recital 14.
caused (and still causes) much controversy.20 It can be seen as a weak spot in the
extraordinary circumstances clause, which has the ability to severely disturb the intended balance of the Regulation.
2.1. Unexpected flight safety shortcomings from a legal certainty perspective
As touched upon in the introduction, the principle of legal certainty means that the law must be certain, in that it is clear and precise and its legal implications foreseeable. I will evaluate the current level of legal certainty on the basis of these two characteristics. First, I will assess the clarity and precision of the extraordinary circumstances clause by comparing different interpretations. Without further clarification of the extraordinary circumstances clause, are divergent interpretations by parties subjected to the Regulation possible? The possibility of divergent interpretations would suggest that the Regulation is not clear and precise, which is a first indication of legal uncertainty. Next, I will evaluate how the CJEU and the National Enforcement Bodies (hereafter “NEBs”, the national authorities where consumers should first report when they believe the airline has wrongfully denied their claim21) have interpreted the Regulation. Acceptable levels of legal certainty under a Regulation that lacks clarity and precision are still possible when the interpretation of different authorities is unambiguous and consistent. Finally, I will look at how national courts have adjudicated regarding the concept of unexpected flight safety shortcomings, as these have the final say in any individual passenger rights case. Thereby I will assess the predictability of the legal implications of extraordinary circumstances clause.
This analysis will be conducted by tracking the typical steps an affected passenger would take when her claim is rejected. 1st STEP: If a flight is delayed or cancelled beyond the Regulation thresholds, a passenger has to turn to the airline with her request for compensation. 2nd STEP:
When the airline rejects this claim relying on the extraordinary circumstances clause, passengers who are convinced this decision is wrong have to contact the relevant NEB.22 This
government body will then investigate the corresponding flight’s circumstances and give a non-‐binding decision on whether the claim was correctly denied. 3rd STEP: When the NEB
decides the claim was correctly denied, but the passenger disagrees, or when the NEB decides the claim was incorrectly denied, but the airlines still doesn’t pay, the affected passenger has
20 Lee, Jae Woon, and Joseph Charles Wheeler. "Air carrier liability for delay: a plea to return to international uniformity." J. Air L. & Com. 77 (2012), pp. 63 and further.
21 The Regulation, Recital 7. 22 The Regulation, Article 16(2).
to turn to the associated national court. 4th STEP: Finally, if the national court is uncertain
about the correct interpretation of the applicable EU law, that is to say about the scope of the definition of extraordinary circumstances used in the Regulation, it can refer the case to the CJEU for a preliminary ruling.
These steps will be discussed in chronological order, with one exception: before examining whether and when the air passenger should take STEP 2 and approach the NEB with her claim, I will first look at how the CJEU has interpreted the concept of unexpected flight safety shortcomings. The CJEU had the chance to elaborate on this particular issue shortly after adoption of the Regulation; therefore, its decisions have been relevant for almost the entire period the Regulation has been in force. Since NEBs (STEP 2) and national courts (STEP 3) have an obligation to uphold the judgments of the CJEU in their decisions23 and often refer to these
judgments in extraordinary circumstances cases, it is appropriate to discuss the CJEU interpretation first.
2.1.1. Airlines vs. air passengers: possibility of divergent interpretations?
If a flight is delayed or cancelled beyond the Regulation thresholds, passengers have to turn to the airline with their request for compensations (1st STEP). The airline will then evaluate the
circumstances under which the flight was disrupted, after which it will decide whether compensations will be paid or if the airline can successfully invoke the extraordinary circumstances clause, thereby escaping liability. The position of the airline in the first step is curious, since as a subject of the Regulation, the airline has to decide about its own liability.24 When a rule is clear and precise, this exercise should not be problematic. However, when divergent interpretations are possible, different parties can be expected to prefer the explanation that benefits them most.
Regarding the different possible explanations of the concept of unexpected flight safety shortcomings, passengers are expected to prefer an explanation that does not include technical issues, which can be qualified as a ‘restrictive interpretation’ (few cases in which the airline escapes liability). This interpretation benefits a passenger as it results in more cases in which she receives compensation. The airlines, on the other hand, are expected to prefer an
23 Explained in Correia, Vincent. "Air Passengers' Rights," Extraordinary Circumstances," and General Principles of EU Law: Some Comments After the McDonagh Case." Issues in Aviation Law and Policy 13.2 (2014).
24 It must be noted however that airlines are not free to simply deny every claim as they see fit, only because this would make sense financially. If an airline persistently and willfully denies claims contrary the Regulation, it risks receiving a fine from its NEB.
explanation that includes technical defects, a so called ‘extensive interpretation’ (more cases in which the airline escapes liability) of the unexpected flight safety shortcomings escape; after all they are economic entities that want to minimize costs and maximize profits.
It has been argued that the adoption of an extensive interpretation of unexpected flight safety shortcomings by the airline industry after the introduction of the Regulation (before NEBs, national courts or the CJEU had decided on the matter) was an almost standard reaction by unwilling airlines to ward off air passengers’ claims.25 The airline interpretation however was
not completely unfounded, as under the Montreal Convention – to which Recital 14 of the Regulation refers – technical failures can under certain circumstances relieve the carrier of liability.26 Since the Regulation does not provide further explanation of unexpected flight safety shortcomings, it seems logical to make the analogy with a similar notion already in use in existing legislation (in this case the Montreal Convention).27
Regarding the possibility of widely divergent explanations (including or excluding all technical issues), it can be concluded that the concept of unexpected flight safety shortcomings is not unambiguously clear from the text of the Regulation. This has the potential to (severely) disturb the balance that the Regulation tries to strike between airline industry interests and consumer protection. This is a first indication of low legal certainty in the current situation. In the next sections I will evaluate whether the CJEU, the NEBs and the national courts have developed a single consistent interpretation after introduction of the Regulation and whether this resulted in foreseeability of the legal implications of the Regulation.
2.1.2. Restrictive interpretation of the Court of Justice of the European Union
Less than three years after the entry into force of the Regulation, the CJEU delivered its judgment in the Wallentin-‐Hermann v Alitalia case, after a German national court referred for a preliminary ruling regarding Alitalia’s use of the defense of extraordinary circumstances.28 The cancellation of the Alitalia flight in question resulted from a complex engine defect in the turbine that had been discovered the day before the scheduled flight, during regular maintenance. The Court ruled that the Regulation must be restrictively interpreted meaning
25 See for example http://www.huffingtonpost.co.uk/jakub-‐kotan/air-‐passengers-‐face-‐anoth_b_5988110.html [accessed 23 January 2015].
26 Wegter, Jorn J. "The ECJ Decision of 10 January 2006 on the Validity of Regulation 261/2004: Ignoring the Exclusivity of the Montreal Convention." Air and Space Law 31.2 (2006): 133-‐148.
27 Montreal Convention, Article 19.
28 Case C-‐549/07 Wallentin-‐Hermann v Alitalia (2008) ECLI:EU:C:2008:771, (hereafter, the “Wallentin-‐Hermann case”).
that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of extraordinary circumstances within the meaning of that provision, unless that problem stems from 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 its actual control.29 However, what qualifies as ‘not inherent in the normal exercise of the activity of the air carrier’ and as ‘beyond its actual control’ remains for the national courts to decide on a case-‐by-‐ case basis.30 On top of this, the Court requires that the cancellation or delay could not have been prevented, even if the air carrier had taken ‘all reasonable measures’.31 The CJEU provides some guidance for this decision, explaining that the specific conditions of air carriage and the degree of technological sophistication of aircrafts today have made the occurrence of technical problems inherent in the normal course of business of airlines.32 From this judgment it can be concluded that technical issues can only qualify as unexpected flight safety shortcomings under strict conditions. As the CJEU already suggests, probably the only situations that can be qualified as unexpected flight safety shortcomings will be confirmed manufacturing defects or acts of sabotage and terrorism.33
Very recently, the CJEU has confirmed its restrictive interpretation in the Siewert v Condor order.34 Prior to departure, a Condor Flugdienst aircraft was damaged when a set of mobile boarding stairs were driven into its side. The structural damage this caused to the wing and the fuselage prevented the aircraft from operating the scheduled flight. The CJEU ruled that mobile stairs or gangways can be regarded as indispensable to air passenger transport which means that air carriers are regularly faced with situations arising from the use of such equipment.35 A collision between an aircraft and a set of mobile boarding stairs should therefore be seen as inherent in the normal exercise of the activity of the air carrier. As a consequence, the air carrier is not relieved of its payment obligation.
The Wallentin-‐Hermann judgment has clarified the concept of unexpected flight safety shortcomings. The CJEU introduces the three criteria of ‘not inherent in the normal operation’,
29 Wallentin-‐Hermann v Alitalia case, paragraph 26. 30 Ibid, paragraph 27 and 42.
31 Ibid, paragraph 42. 32 Ibid, paragraph 24. 33 Ibid, paragraph 26.
34 Case C-‐394/14 Siewert v Condor Flugdienst (2014) ECLI:EU:C:2014:2377, inherent in the normal operation of flight (hereafter, the “Siewert v Condor Flugdienst order”).
‘beyond its actual control’ and ‘all reasonable measures’, which give guidance when to qualify situations as unexpected flight safety shortcomings. Theoretically, this could improve certainty about the scope of the extraordinary circumstances clause for both passengers and airlines. However, before being able to draw conclusions on whether the CJEU interpretation has indeed improved legal certainty, I will first have to look at whether the NEBs and the national courts implemented the CJEU interpretation and how they have decided in individual cases.
2.1.3. National Enforcement Bodies about unexpected flight safety shortcomings
When the air passenger believes the airline has wrongfully denied her claim, the 2nd STEP
would be to submit her claim to the National Enforcement Body. Per Article 16 of the Regulation, each Member State shall designate a body responsible for the enforcement of the Regulation as regards flights from airports situated on its territory and flights from a third country to such airports.36 The Inspectie Leefomgeving en Transport (hereafter, the “ILT”) is the Dutch National Enforcement Body, while the UK (the second Member State that will be discussed) has appointed the Civil Aviation Authority (hereafter, the “CAA”) as its NEB. Where appropriate, these bodies shall take the measures necessary to ensure that the rights of passengers are respected.37 The Regulation does not define in detail the competences and
tasks to be accomplished by the NEB. However, in practice the NEBs give non-‐binding decisions regarding specific delays or cancellations. Both the ILT and the CAA are not able to impose payment of compensation in individual cases. 38
When it comes to explaining the concept of unexpected flight safety shortcomings, the NEBs do not share the CJEU’s restrictive interpretation of the Regulation. This can be concluded primarily from the draft list of extraordinary circumstances prepared following the National Enforcement Bodies meeting held on 12 April 2013.39 This list is published on the European
Commission website. The list purports to provide information and guidance on what circumstances should and should not be considered extraordinary under the current
36 The Regulation, Article 16. 37 The Regulation, Article 16(1).
38 The CAA and the ILT are both unable to impose their findings on airlines, see
http://www.caa.co.uk/default.aspx?catid=2211&pageid=12725 and
http://www.ilent.nl/onderwerpen/transport/passagiersrechten/passagiersrechten_luchtvaart/vertraging_annuleri
ng_en_instapweigering/veelgestelde_vragen/verzoek_om_handhaving/index.aspx [accessed 16 January 2015].
39 Draft list of extraordinary circumstances following the National Enforcement Bodies (NEB) meeting held on 12 April 2013 (hereafter, the “NEB list”), available at
http://ec.europa.eu/transport/themes/passengers/air/doc/neb-‐extraordinary-‐circumstances-‐list.pdf [accessed 3
Regulation. The enforcement bodies conclude that manufacturing defects and damage to the aircraft caused by third parties constitute unexpected flight safety shortcomings. Parts that fail prematurely or failing parts that should not require unscheduled maintenance also receive this qualification. Finally, any other technical defect that becomes apparent immediately prior to departure or in-‐flight and which requires repair before the aircraft is airworthy for the intended flight qualifies as an unexpected flight safety shortcoming according to the NEB list.40 While the CJEU reasons that the occurrence of technical problems is inherent in the normal operation of airlines, the NEBs are of the opinion that airlines cannot be held accountable for technical issues that they have no influence on. This has resulted in curious situations in which the NEB decides that the airline correctly denied a claim, while the national court subsequently judges that the passenger should receive compensations (see further on this in point 2.1.4).41
It can be concluded that despite the CJEU’s effort to clarify the extraordinary circumstances clause, passengers and airlines are still confronted with divergent interpretations of the concept of unexpected flight safety shortcomings. In case of delays or cancellations due to technical faults these can, as established in point 2.1.1, result in different conclusions as to the liability of the air carrier. This harms the predictability of the legal implications of the extraordinary circumstances clause, a strong indication of low legal certainty. What the final outcome for our persistent passenger will be however depends on the judgment of the associated national court, which has the final say in any individual passenger rights case.
2.1.4. National courts on unexpected flight safety shortcomings
Finally then, it is appropriate to look at the 3rd STEP. When the NEB decides a claim was correctly denied by the airline, but the passenger disagrees, or when the NEB decides a claim was incorrectly denied, but the airline still doesn’t pay, she has to turn to the associated national court. Different courts of the Member States have also struggled (and still struggle) with the correct interpretation of the Regulation, which has resulted in many preliminary reference procedures, some of which previously described in point 2.1.2. It will be interesting to see whether, irrespective of the dissenting NEB interpretation, the Wallentin-‐Hermann judgment has led to a consistent and uniform approach of national courts to the concept of
40 NEB list, paragraph 26.
41 This happened for example in the following three Dutch cases in which the judge refers to the preceding NEB decision in his judgment: Rechtbank Den Haag 07-‐05-‐2014, ECLI:NL:RBDHA:2014:6147, Rechtbank Amsterdam 27-‐ 06-‐2014, CV EXPL 13-‐22678 and Rechtbank Amsterdam 13-‐10-‐2014, ECLI:NL:RBAMS:2014:6924.
unexpected flight safety shortcomings throughout the EU. I will look at court cases dealing with delays or cancellations caused by technical faults in the Netherlands and in the UK.
The Netherlands
Dutch judges have adjudicated many times on the extraordinary circumstances defense with respect to technical defects. I will list three specific flights that were delayed or cancelled due to a technical fault, after which I will describe the resulting judgment(s) and (when available) the preceding NEB decision.
CASE 1 – The first case is that of ArkeFly flight OR357 of 1 March 2011, where a complicated engine defect discovered during pushback delayed the flight for over three hours. In June 2012, the court of Noord-‐Holland decides that ArkeFly correctly invokes the extraordinary circumstances defense because the engine defect qualifies as an unexpected flight safety shortcoming.42 In July 2014 however, the same court decides that ArkeFly has to pay
compensations regarding this flight. This judge reasons that engine defects such as the one experienced by flight OR357 are inherent in the normal operation of flight.43
CASE 2 – The second case deals with the cancelled ArkeFly flight OR712 of 29 September 2012, which returned to the departure airport because the landing gear failed to retract after takeoff. In October 2013, the court of Zeeland-‐West-‐Brabant decides that ArkeFly escapes liability because the gear failure qualifies as an unexpected flight safety shortcoming not inherent in the normal operation.44 The judge refers to the preceding ILT decision that arrives at the same conclusion.45 In February 2014 on the other hand, the court of Noord-‐Holland
decides that a gear failure like that of OR712 is inherent in the normal operation of flight; therefore ArkeFly has to pay compensations to its claimants.46 In July 2014, the court of Zeeland-‐West-‐Brabant adds to the confusion when it rules that even though the gear failure qualifies as an unexpected flight safety that is not inherent in the normal operation, the airline has to pay compensations because it did not take all reasonable measures within the meaning of Article 5(3) of the Regulation to avoid the cancellation.47
42 Rechtbank Haarlem 21-‐06-‐2012, 521649/CV EXPL 11-‐9998, paragraph 5. 43 Rechtbank Noord-‐Holland 22-‐05-‐2014, 586907 CV EXPL 13-‐272, paragraph 4. 44 Rechtbank Zeeland-‐West-‐Brabant 30-‐09-‐2013, 776496-‐CV-‐13/3728, paragraph 2.7. 45 Ibid, paragraph 2.3.
46 Rechtbank Noord-‐Holland 11-‐02-‐2014, 593600 CV EXPL 13-‐2370, paragraph 6.
CASE 3 – The third case deals with KLM flight KL642 of 13 September 2013, which was delayed due to abnormal engine vibrations observed during the preceding flight. After a time-‐ consuming maintenance procedure the flight departed 7 hours behind schedule. In December 2014, the court of Amsterdam decides that the engine problem cannot qualify as an unexpected flight safety shortcoming.48 Only one week later, the court of Den Haag requests proof of the weather conditions that caused the engine vibrations in an interlocutory judgment. When KLM is able to show that these conditions were present, the airline successfully escapes liability.49
These examples clearly show how several outcomes of the current passenger rights process completely contradict each other. Not only do different judges arrive at different conclusions in similar situations, they even do so regarding the same flight. From a passenger/airline standpoint, the situation could not be more confusing. It can be concluded that in the Netherlands, predicting the legal implications of the extraordinary circumstances clause is hard, if not impossible.
United Kingdom
The situation regarding unexpected flight safety shortcomings was quite similar in the UK, in that the outcome of these cases in regional courts was uncertain. This however might have changed, as recently the UK Court of Appeal adjudicated on the matter, in a case that received a lot of (media) attention. The Huzar v Jet2.com Ltd case concerned a delayed flight due to a wiring defect in the fuel valve circuit that could not have been prevented by prior maintenance or prior visual inspection.50 At first instance, the County Court at Stockport held
that the nature of the fault in question was beyond the control of Jet2.com, who had taken all reasonable measures in the routine servicing of its aircraft and following discovery of the fault. The judge therefore dismissed the claim on the basis that such a fault constituted an unexpected flight safety shortcoming.
Upon appeal, the County Court at Manchester reversed the first instance decision.51 The judge
held that the true cause of delay to the flight was "the need to resolve the technical problem
48 Rechtbank Amsterdam 11-‐12-‐2014, 3029031 CV EXPL 14-‐12585, paragraph 14. 49 Rechtbank Den Haag 17-‐12-‐2014, 3055067 CV EXPL 14-‐2955.
50 Court of Appeal 11-‐06-‐2014, Case no. B2/2013/3277/CCRTF Neutral Citation Number [2014] EWCA Civ. 791 (hereafter, the “Huzar v Jet2.com Ltd case”).
