This article briefly explores the judgment of the Court of Justice of the European Union (CJEU) and the application of the two-limb test used to assess the meaning of ‘extraordinary circumstances’ which, if proven, may relieve the air carrier from having to compensate the passenger(s) under Regulation 261.
In Germanwings GmbH v Wolfgang Pauels , the applicant, Mr Pauels, was delayed by almost three hours on a flight from Dublin to Dusseldorf. The delay was due to Germanwings’ tyre being damaged by a screw lying on the runway. The passenger claimed compensation under Regulation 261 but Germanwings disputed this on the grounds that the delay was as a result of ‘extraordinary circumstances’, under Article 5(3) of Regulation 261.
The German court referred the question to the CJEU as to whether damage to an aircraft tyre caused by a screw lying on the take-off runway constitutes an extraordinary circumstance for the purposes of Article 5(3).
In answering this question, the CJEU applied a two-limb test: the inherency test and the control test.
The inherency test considers whether the delay or cancellation of the flight was as a result of an event that is not inherent in the regular activities or normal exercise of an air carrier. The CJEU had to determine whether the tyre damaged by the screw was inherent to the normal activity of Germanwings.
Previous determinations by the CJEU have often caused some uncertainty as to what events can be clearly deemed intrinsically linked to an everyday activity or normal exercise of an air carrier. Indeed, while it is clear that the collision with boarding stairs falls into this category (Case C-257/14 Van der Lans), and that collision with a bird does not (case c-315/15, Pešková), it is not always obvious to national courts how to apply these to different scenarios.
This time, the CJEU held that the damaged tyre was not intrinsically linked to the operations of the aircraft. As such, even though there was a delay to the flight, the cause of the delay was considered to be non-inherent to the regular activities of Germanwings and therefore an extraordinary circumstance under the inherency test.
Applying the control test, the CJEU considered whether the damage caused to the tyre was outside of Germanwings’ control.
The CJEU noted that air carriers are subject to particular constraints during take-off and landing operations and the air carrier is not responsible for clearing the runway. For these reasons, the CJEU held that the screw on the runway that damaged the Germanwings’ tyre was outside the control of Germanwings and therefore an extraordinary circumstance under the control test.
Following consideration of the control and inherency tests, the CJEU held that damage to an aircraft tyre caused by a foreign object lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation 261.
Despite this positive ruling for Germanwings, the court further held that in order for Germanwings to be completely released from its obligation to pay Mr Pauels and other passengers, it must prove that it took all reasonable measures to avoid the delay. Such measures could include the deployment of staff, equipment and the financial means required to prevent such an event.
Overall, the judgment strengthens the position of air carriers in relation to the determination of extraordinary circumstances under Regulation 261 and may limit the number of compensation cases from passengers who have experienced delays and/or a cancellation to their flight(s) arising in similar scenarios.
 Judgment of the Court (Third Chamber) of 4 April 2019. Germanwings GmbH v Wolfgang Pauels. (C-501/17)