On 17 September 2015, judgment was handed down by the Court of Justice for the European Union (‘CJEU’) in the much--awaited case of Corina van der Lans v Koninklijke Luchtvaart Maatschappij NV (C--257/14) (‘van der Lans’). For those hoping it would provide a glimmer of hope to air carriers in circumstances where technical or mechanical defects lead to delays and cancellations of flights, the decision will come as a bitter disappointment.
Under Article 5(3) of Regulation (EC) 261/2004, an air carrier is not obliged to pay fixed compensation for delays or flight cancellations if it can prove that they were caused by ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’.
The case arose when Ms van der Lans’s flight from Ecuador to the Netherlands was delayed by 29 hours. The delay was caused by defects in two engine components. The air carrier claimed that this constituted an extraordinary circumstance (‘EC’), thereby removing their obligation to pay compensation for the delay.
In finding against the airline, the CJEU arguably narrowed what might constitute ‘technical defect ECs’ from the previous guidance found in Friederike Wallentin-- Hermann v Alitalia--Linee Aeree Italiane SpA (C--549/07, 22 December 2008) (‘Wallentin’).
In Wallentin, the CJEU confirmed what would not amount to ECs: technical defects that come to light during maintenance of aircraft or on account of failure to carry out such maintenance [para. 25]. The Court then postulated examples capable of amounting to ECs: hidden manufacturing defects which impinge on flight safety revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, or damage to aircraft caused by acts of sabotage or terrorism [para. 26].
In van der Lans, the CJEU stated that aircrafts are operated in “often difficult or even extreme” meteorological conditions, and it is “understood moreover that no component of an aircraft lasts forever” [para.41].
The Court went on to find that the prevention of 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 a carrier is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business [para.43]. This seems a somewhat unfair conclusion to draw given that in Wallentin the Court acknowledged by implication that technical defects can occur which do not come to light during maintenance of aircraft or on account of failure to carry out such maintenance. However, in the following passage of van der Lans the Court clarified that even these defects could not constitute ECs [at para. 49]:
"…a technical problem, such as that at issue in the main proceedings, which occurred unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ within the meaning of that provision.”
The central points of the judgment can be summarised as follows:
Air carriers should therefore be alive to the Court’s very narrow interpretation of what can constitute an EC when aircraft components fail.
In order to escape the confines of van der Lans then, an air carrier would have to prove that the cause of a component failing, whilst under warranty say, and/or at an earlier stage in its life than anticipated by a programmed maintenance schedule, was not inherent in the normal exercise of the activity of that air carrier and was beyond its actual control. In other words, the cause of the failure of a component cannot not be due to the activity of the air carrier, or the aircraft in question, for example due to wear and tear, even if that cause is unexpected or unforeseen.
In reality such a scenario is going to be rare. Short of a manufacturer or component authority (e.g. the CAA) issuing an airworthiness directive grounding aircrafts on the basis of a hidden manufacturing defect, it is unlikely a technical fault causing a delay or cancellation will amount to an EC. Furthermore, the Court in van der Lans implied that in order to rely on article 5(3) in these circumstances, it will not be enough for the air carrier to assert the event was a hidden manufacturing defect, evidence will also have to be provided by the manufacturer or component authority [see para. 45]. Such evidence can of course be provided after an air carrier itself has revealed a hidden defect, as the EC need not be predicated on the defect coming to the attention of a manufacturer or authority first.
As the Court declined to provide further guidance on the reasonable measures air carriers should take to deal with ECs, the ‘intolerable sacrifices’ test laid out in Eglitis v Air Baltic Corporation AS (C--294/10, 12 May 2011) remains good law.
As well as emphasising the high degree of protection that Regulation (EC) 261/2004 affords to passengers, the CJEU’s continued narrow interpretation of what constitutes ECs in the context of technical defects likely marks the end of such cases being taken to Luxembourg.