Fuel spillage onto the runway, and exemption from compensation under Regulation 261/2004

Simon Phippard and Sandra Nicolle, June 2019.

In a case similar to that of Germanwings [1], the Court of Justice of the European Union (CJEU) reaffirmed the definition of "extraordinary circumstances" provided therein, and restated that extraordinary circumstances alone are not enough to exempt an airline from compensating its passengers in case of serious delays: the airline must prove that the delays could not have been avoided even if all "reasonable measures" had been taken as explained in the case of Pešková and Peška [2].

Background

The claimant booked a flight with Ryanair, from Italy to Belgium. The flight was delayed by 4 hours and 23 minutes. The claimant requested compensation of €250 pursuant to Articles 5(1)(c) and 7(1)(a) of Regulation 261/2004.

Ryanair refused, on the grounds that the delay was caused by extraordinary circumstances.

The flight had been delayed because of the presence of fuel on a runway, as a result of which the airport authorities closed the runway for over 2 hours. The fuel that spilled onto the runway came from another aircraft of Ryanair's fleet.

Referral to the CJEU

The referring court addressed three questions to the CJEU for preliminary ruling, which the CJEU replied to in two parts.

The referring court wanted to know whether fuel on the runway which leads to its closure, where the fuel does not come from an aircraft of the carrier that operated that flight, amounts to extraordinary circumstances for the purpose of Regulation 261.

The referring court also inquired as to whether, where that fuel on the runway does amount to an extraordinary circumstance under Regulation 261, it also amounts to a circumstance which could not have been avoided even if all reasonable measures had been taken by the defendant.

The first questions

The CJEU referred to the recent Germanwings case, in which the delay was caused by a screw on the runway. The case followed Wallentin-Hermann [3]which, for the purposes of Article 5(3) of Regulation 261, defined "extraordinary circumstances" as events that are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier's control. The conditions are cumulative.

In the present ruling, the CJEU added that the assessment must be made in light only of the circumstances leading to the delay, without any need to first assess whether the circumstances amount to an "event" as listed by recital 14 of Regulation 261.

Aside from this addition, the CJEU referred to the reasoning in Germanwings, and followed the same steps. The fuel on the runway is not tied to the operation of the delayed aircraft; the carrier is not responsible for runway maintenance, and it is bound by the decision of the airport authorities to close it. Therefore, the CJEU determined that fuel on the runway, which did not come from the carrier's own fleet (according to the referred question), cannot be held to be inherently linked to the operation of the delayed aircraft, and therefore is an extraordinary circumstance.

The last question

The CJEU relied on the case of Pešková and Peška to clarify what amounts to "reasonable measures" for an airline to take.

The CJEU concluded that an airline is expected to prevent delays caused by extraordinary circumstances by deploying measures which are technologically and economically viable for the airline, and which come under their own responsibility. Whether or not an airline meets this test is to be determined on a case by case basis by the national courts.

On the facts of the underlying case, and in light of the wording of the referred questions, the airline did not have any choice but to comply with the airport authorities' decision to close the runway. It did not have the option to avoid the extraordinary circumstance via reasonable measures. The CJEU therefore replied to the last question of the referring court that the presence of fuel on the runway, which did not come from an aircraft of the defendant's fleet and which causes its closing, is a circumstance that could not have been avoided even if all reasonable measures had been taken, for the purposes of Regulation 261.

Conclusion

In its reasoning and answers, the CJEU stood close to existing case law on Regulation 261, consolidating its position on the interpretation of its Article 5(3).
However, the facts of the underlying case differed from previous case law: the fuel came from the defendant's own fleet. This fact was not made apparent in the referral to the CJEU. As a result, the CJEU interpreted the questions as to mean that the origin of the spillage was not the defendant's fleet, and replied only to those specific questions. The judgment therefore leaves scope for future argument where the initial cause of the delay could in fact be linked to the operations of the defendant.

[1] Judgment of 4 April 2019, Germanwings, C-501/17 – for more information, please click here

[2] Judgment of 4 May 2017, Pešková and Peška, C‑315/15 - for more information, please click here

[3] Judgment 22 December 2008, Wallentin-Hermann v Alitalia - Linee Aeree Italiane SpA, Case C-549/07