Aviation: “extraordinary circumstances” within the Flight Passenger Rights Regulation – no use crying over spilled fuel and runway closures

In Moens v Ryanair Ltd, a Belgian Magistrate’s Court asked the Court of Justice of the European Union (CJEU) to give a preliminary ruling on the meaning of “extraordinary circumstances” in the Flight Passenger Rights Regulation (EC261/2004). The regulation sets out certain obligations of air carriers to passengers in the 'event’ of a cancellation or delay.

There was a fuel spillage on the runway at Treviso Airport (Venice), which caused the runway to be closed for over two hours and the claimant’s flight to land over four hours late. The claimant subsequently sought compensation for the delay under the Regulation. Ryanair refused to compensate the claimant as it considered the delay was caused by an “extraordinary circumstance”.

The CJEU agreed with Ryanair. However, it ruled that whether or not the closure of a runway due to fuel spillage constitutes an “extraordinary circumstance” would be fact dependant. In Moens the runway closure did constitute an extraordinary circumstance.

Inherency and Control

Previous jurisprudence established a two-limb test to define an ‘extraordinary circumstance’: (1) is the problem attributable to an event, which is not inherent to the normal exercise of the air carrier’s activities; and (2) is it beyond the control of the air carrier, on account of its nature or origin? The CJEU further affirmed this test in Moens, with the issue to be decided on a case-by-case basis.

In this instance, the CJEU ruled that because the petrol spillage did not originate from one of Ryanair’s planes, the spillage and consequential runaway closure could not be considered as a circumstance intrinsically linked to Ryanair’s operation. The first part of the two-limb test was therefore satisfied. Additionally, the CJEU confirmed the position from Germanwings (C-501/17) by upholding that: (a) maintenance of the runways is in not within the air carrier’s competence; and (b) the decision of the competent airport authority to close a runway at an airport is binding on the air carrier. Thus, Ryanair also satisfied the (lack of) control part of the ‘extraordinary circumstance’ two-limb test.

It is worth noting that in the opinion of Advocate General Tanchev, delivered in December 2018, the concepts of “event” and “extraordinary circumstance” are closely connected but should not be conflated. There could be no extraordinary circumstance without an event, but the reverse is not always true. Nevertheless, the CJEU confirmed that it is not necessary to assess, in advance, whether a fact constitutes an ‘event’ in order to establish whether it is an extraordinary circumstance. Instead, the classification of extraordinary circumstances within the Regulation is to be made solely in the light of the circumstances giving rise to the cancellation or delay of the flight concerned.

Interestingly, the Advocate General also noted that the list at recital 14 of the Regulation provides a record of events that could (but not necessarily would) constitute an extraordinary circumstance; however, it is for the court to examine the factual context and decide whether such event is indeed an extraordinary circumstance.

Extraordinary circumstances – reasonable measures to take

Air carriers are only released from their obligation to pay compensation under the Regulation if the carrier can prove that the cancellation or delay was caused by “extraordinary circumstances” that could not have been avoided even if all reasonable measures had been taken. Previous jurisprudence established that courts should apply an individualised and flexible interpretation of the concept of “reasonable measures”.

Ryanair had no advance notice of, and could not have foreseen, the closure decision. Therefore, it was not in a position to take preventative measures. Moreover, even if Ryanair had anticipated the closure of the runaway, it is not clear that there was anything they could have done to mitigate or avoid the delay. Ryanair had to obey the instructions of the air authorities and had no role in the closure decision. Further, closure of a runaway during the clean-up process is a requirement under EU law. It is clear from the CJEU’s decision that Ryanair was not in a position to speed up the spillage clean up (and this would not be expected of them) and they were not required to take active steps to secure a new departure slot. Instead, Ryanair were obliged to follow the instructions issued by the traffic control.

Comment

The majority of previous CJEU rulings on the issue only characterised an event as an extraordinary circumstance when the delay was caused by an extraneous issue to all parties – for example, birds, terrorism and adverse weather conditions. The CJEU’s decision in Germanwings (C-501/17) started to widen the types of issues that could be accepted as extraordinary circumstances under the Regulation and the CJEU ruling in Moens follows the same approach. This is a positive development for air carriers and their insurers as it is likely to result in fewer delay claims being payable when such delays are outside of the air carrier’s control.

Further, Moens affirms the precedent that whether or not an event constitutes an “extraordinary circumstance” is fact dependant. It is for the national courts to make a decision, using the two limb-test and a context-specific analysis of the facts.

Further reading:

Moens v Ryanair Ltd C-159/18.

Moens v Ryanair Ltd Opinion of Advocate Genral Tanchev delivered 19 December 2018.

Germanwings v Pauels C-501/17.