Is the ECJ really concerned by passengers’ safety?
In construing the EU Regulation No 261/2004, the European Court of Justice has adopted for several years a position favorable to passengers.
Such a case law is particularly questionable notably in respect of safety issues given the pro-consumer approach followed by the court. Indeed, none of the court’s decisions considered safety issues, despite its particular weight in the air transport of passengers.
The court timidly referred to safety in a case involving birds strike, which caused a significant delay (C-315/15, ECJ 4 May 2017, Peskova et Peska). Based on the first preamble of the above-mentioned regulation, the court finally ruled that safety should prevail on punctuality (see also our comment of this case in : Collision aviaire: sécurité ne rime pas (forcément) avec ponctualité, Note sous CJUE 4 mai 2017 – aff. C315/15, Juristourisme n°201, octobre 2017, pp.44-47).
In the present decision (C-501/17, CJUE 4 avril 2019, Germanwings c/ Pauels) the court seems to retain a safety approach without repealing its former case law.
The air carrier may be released of the payment of the compensation set out in Article 7 of the European Regulation No 261/2004 in cases where an event is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
In the present case, a flight Dublin/Düsseldorf was late by more than three hours upon arrival. However, the air carrier refused to pay compensation, alleging the existence of an extraordinary circumstance. Indeed, it was indicated that the delay was due to the presence of a screw found in a tyre of the aircraft. It was then necessary to change the tyre to operate the flight.
The air carrier was held to compensate the passenger by a first instance judge. The decision was appealed. The German appeal judge considered that the presence of a screw should be qualified as an extraordinary circumstance and that such an event should be assimilated to a collision with birds as set out in a former ECJ case dated 4 May 2017 (C-315/15). However, he noted that in another case, the solution was different. This concerned a collision with a boarding stair (ECJ 14 November 2014, C-394/14). Hence, a preliminary ruling addressed to the European Court of Justice.
First, the ECJ noted that events may be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control.
In the present matter, the court observed that if aircraft tyres are components which are subject to regular safety checks, which form part of an air carrier’s everyday operating conditions (point 23) the situation is different when the malfunctioning of the tyre is the sole result of the impact of a foreign object. This is not intrinsically linked to the operating system of that aircraft. Such an event is also outside the carrier’s actual control, given that the air carrier is not responsible for clearing the runway.
The ECJ further approved the opinion of the Advocate General who considered that this satisfies the objective of ensuring the high level of protection for air passengers. Here again the passengers’ safety should prevail on punctuality.
The ECJ is hereby conscious that it is necessary “to refrain air carriers from taking the necessary measures by prioritising the operation and timeliness of their flights over the objective of flight safety”.
However, the ECJ added that, in the event of ‘extraordinary circumstances’, an air carrier is to be released from its obligation to pay passengers compensation only if it can prove that it adopted appropriate measures, deploying all its resources (staff, equipment, financial) in order to avoid that situation from resulting in the cancellation or long delay of the flight in question, without the air carrier being required to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time (point 31).
In other words, the member States judges will have to verify that the air carrier took all appropriate measures to avoid the changing of the tyre damaged by a foreign object lying on an airport runway from leading to important delay of the flight in question.
The recent evolution of the European case law relating to passengers’ rights should be agreed. The air carrier should not be placed in a position to opt between safety or punctuality.
A strict interpretation of the concept of extraordinary circumstances would have certainly led to an unacceptable situation. However, the court’s approach remains hesitant. And one can ask whether the protection of passengers and the consideration for their safety are not in fact illusory
Indeed, even if an event is qualified as an extraordinary circumstance, the air carrier will not necessarily be released from its obligation of passengers’ compensation under the European Regulation…
The air carrier will also have to establish before the member State judge that it took all appropriate measures to avoid a flight delay or cancellation.
In addition, the judge will have to evaluate such measures and assess whether they were appropriate. Will the judge become a specialist of air operations and commend the air carrier the measures to be adopted, despite the existence various obligations (international aviation norms, aircraft manufacturers’ technical recommendation, etc.) ?