Reasonable measures in cases of extraordinary circumstances

According to Regulation 261, airlines can be exempted from paying compensation in the event of a cancellation or a delay at arrival if the airline can prove that the cancellation or delay was caused by extraordinary circumstances which could not have been avoided. Furthermore, airlines must prove that they have taken all reasonable measures in order to avoid such extraordinary circumstances.

What constitutes a "reasonable measure"?

There is no definition of what constitutes Reasonable Measures within the meaning of Regulation 261. This is assessed from case to case. However, the newly issued guidelines provide guidance on the basis of two judgments from the Court of Justice of the European Union (CJEU).

Time buffers

In 2011, the CJEU handed down a judgment in a case (C-294/10, Eglitis et Ratnieks) regarding Reasonable Measures. The case concerned a flight that was delayed due to failure in the power supply leading to a breakdown in radars and air navigation systems concerning the Malmö Region, thus the air space was closed. Two hours after boarding the airplane, the passengers were informed that the flight was cancelled. The reason for the cancellation was – following the power outage – that the maximum working hours of the crew had run out. Thus, the operation of the flight could not be completed in its entirety.

There is no doubt that the closure of the airspace amounted to an extraordinary circumstance. Thus, the issue was whether the airline had taken all reasonable measures to avoid the following cancellation. The CJEU found that an airline must - at the stage of organising the flight – reasonably take into account the risk of delay connected to the possible occurrence of extraordinary circumstances. Therefore, airlines must provide for a certain reserve time – or time buffer – to allow such circumstances to pass in order to operate the flight in its entirety.

However, the court did not indicate how long such a time buffer should last. On the contrary, the Court stated that a general minimum time buffer applicable to all airlines in all situations could not be made. The court continued by stipulating that the length of the required time buffer should not result in intolerable sacrifices made by the airline; consequently, not exceed the capacity of the airline.

Thus, airlines are obligated – as a part of the “two tier duty” in article 5(3) of Regulation 261 – to take all Reasonable Measures – and to reserve time in order to allow for extraordinary circumstances to pass. However, the required length of such reserve time has to be assessed on a case-by-case basis and must not result in the airline encountering intolerable sacrifices of its capacity. It is stipulated in the guidelines that the available resources generally will be higher at the hub compared to other outbound destinations. It is therefore the view that there are more possibilities to limit the impact of extraordinary circumstances at hubs.

Minimum rules on maintenance

In another case from 2008, a flight had been cancelled due to a complicated engine failure in one of the turbines of the airplane. This was discovered on a routine check the night before the day of departure. In the following legal dispute, one of the general issues assessed by the CJEU was the question of whether an airline can be said to have taken all Reasonable Measures if the air carrier is in compliance with the minimum rules on maintenance of the airplane.

The Court found that the fact that an air carrier complies with the minimum rules on maintenance of an airplane is insufficient to establish that the airline has taken all Reasonable Measures. Thus, an airline would not – on this basis – be relieved from its obligation to pay compensation in cases of delay or cancellation.

What we have seen

Reasonable Measures is a topic in almost every case handled at IUNO which concerns article 5(3) of Regulation 261.

In one of our recent Swedish cases, air traffic control did not give the airplane clearance for take-off until an hour after scheduled time of departure. The District Court of Gothenburg found that it was difficult for it to see what type of Reasonable Measures the airline could have taken in order to avoid the delay.

In another very recent case, a flight was planned to fly over the Central African Republic – a country in which there for some time had been political instability. The airspace was closed on the day of a presidential election. The operating airline was notified of the closure of the airspace just two hours before planned time of departure. Thus, the flight’s route was altered which resulted in a delay. The District Court of Gothenburg found that political instability does not automatically mean that the airspace will be closed and therefore it was found as an extraordinary circumstance. Furthermore, the court found that the event could not have been prevented even if the airline had taken all Reasonable Measures.

So, what constitutes reasonable measures?

This question can only be answered on a case-by-case basis. However, if we were to establish some general rules, the threshold for what constitutes Reasonable Measures is higher when an extraordinary circumstance occurs at the hub than if it occurs at another airport. It is also important to note that compliance with the minimum rules on maintenance of the plane is not enough to meet the criteria of taking all Reasonable Measures.

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Stay tuned

In the next period of time, we will take a closer look on some of the most highlighted issues in the guidelines which the airlines face very often.