The CJEU: Collision with foreign objects an extraordinary circumstance

Passengers are entitled to compensation if the flight is more than three hours delayed, unless the event which caused the delay is not considered an ‘extraordinary circumstance’. Circumstances which could not have been avoided even if all reasonable measures had been taken.

The case involved a passenger who had booked a flight from Dublin to Düsseldorf with Germanwings. The flight was delayed for 3 hours and 28 minutes due to a screw in a tyre that was found during the preparations for take-off which meant the tyre needed to be changed.

Due to the delay, the passenger claimed 250 euro in compensation in accordance with art 7 of regulation 261/2004. Germanwings refused to pay compensation because the delay of the flight in question was due to ‘extraordinary circumstances’.

At first, Amtsgericht Köln (Local Court, Cologne, Germany) held that the reason for the delay constituted a circumstance which is inherent in the normal exercise of the activity of an air carrier, thus, inside of their actual control and not under the notion of extraordinary circumstances. The court ruled for Germanwings to pay the plaintiff 250 euro in compensation for the delay.

Germanwings contested that the screw in the tyre was within their control as they argued that it can impossibly be an assessment of air carriers to clean the runways from foreign objects, this should be within the scope of the airport, and not the air carrier.

Consequently, Germanwings brought an appeal against that decision before the Landgericht Köln (Regional Court, Cologne). The court requested in turn for a preliminary ruling in order to achieve clarity of whether this situation is to be considered as an extraordinary circumstance or not.

The CJEU acknowledge the strict demands on air carriers regarding regular safety as an everyday operating procedure.

However, the obligation is not limitless and CJEU found that damage to an aircraft tyre caused by a foreign object, such as loose screws, falls within the notion of ‘extraordinary circumstances’. Germanwings was, therefore, not obliged to pay compensation to the passenger if they can prove it deployed all its resources in order to avoid the changing of a tyre damaged by a foreign object.

IUNO’s opinion

The compensation responsibility would be too comprehensive if it was air carriers’ obligation to clean the runways. Cleaning and clearing the airport runway is to be attributed to general air traffic and not to the specific tasks of an air carrier. However, it is currently unclear exactly how Danish and Swedish law will react to CJEU’s judgment. We will closely follow future cases concerning the interpretation of extraordinary circumstances and report relevant information further on.

(European court of justice ruling of 4^th of April 2019 C‑501/17)