The issue examined by the Court of Justice in the merits of case C-­‐394/15 originates from the claim brought by two passengers, who claimed compensation for the damage suffered as a result of the delay of a flight that took them from Antalia (Turkey) to Frankfurt and of the subsequent refusal of the air carrier to pay damages to the plaintiffs1.

To dismiss the claim for compensation on the basis of the Court’s case law, pursuant to the joint provisions of Articles 5 and 7 of Regulation no. 261/2004, the airline argued that the aforesaid delay was attributable to the damages suffered, the evening before, by an aircraft of the company that was leaving from Stuttgart airport.

A set of mobile boarding stairs had allegedly collided with the airplane – due to the conduct of third parties, entrusted by the same airline – causing structural damage to the wing, as a result of which the plane had to be replaced. Consequently,  according  to  the  air  carrier,  the «exceptional circumstances» under Article 5 of Regulation no. 261/2004 existed, that had legitimated Condor not to pay any compensation to the passengers.

The German court referred the case to the Court of Justice to obtain its interpretation according to the following preliminary issues:

  1. Whether or not the exceptional circumstance under Article 5 of Regulation no. 261/2004 is to be considered as directly affecting the flight booked.
  2. In the event that even exceptional circumstances arisen in connection with flights previously flown may affect a subsequent flight, if the measures that the air carrier is reasonably expected to adopt pursuant to Article 5 of Regulation 261/2004 must only be aimed at preventing the occurrence of the exceptional circumstance or also at avoiding a greater delay.
  3. Whether or not the interventions of third parties, acting under their responsibility and entrusted with tasks falling within the activities of the operating air carrier are to be considered as exceptional circumstances pursuant to Article 5 of Regulation no. 261/2400.
  4. Should the third question have a positive answer: whether or not, when making a decision, the entity (airline, airport operator, etc.) which appointed the third party was is relevant».

By order issued on 21 November 2014, the Court decided to examine only the issues under numbers 3 and 4, thus determining the nexus of meanings of the said “exceptional circumstances”.

The reasoning of the European Judges starts from the assumption that, considering recitals 14, 15 and Article 5 and 7 of the Regulation at issue, the air carrier is released from the obligation to pay compensation to passengers if it can prove that the cancelation or delay of the flight are due to exceptional circumstances that could not have been avoided even if all necessary measures had been taken, or in the event that circumstances beyond the control of the air carrier had occurred.

In such respect the Court established that, since the mentioned Article 5 is a derogation from the principle of pecuniary compensation to the passengers, the same should be restrictively construed; therefore not all exceptional circumstances determine an exemption. Consequently, the air carrier wishing to avail itself of the same, shall prove that such circumstances could not have been avoided even with the adoption of all measures that, at the time of the occurrence of the exceptional circumstances, had been technically and economically affordable for the air carrier.

As concerns, more in particular, technical problems concerning an aircraft, the Court specified that circumstances may be considered as «exceptional» only if they are connected to an event that that is not inherent in the normal exercise of the activity of the air carrier and that gets out  of its control because of its  nature or origin.

The Court ruled that «Article 5 of (EC) Regulation no. 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights must be interpreted in the sense that an event such as the collision of airport mobile boarding stairs with an aircraft, as in the case at issue, cannot be regarded as «exceptional circumstance», valid to exempt the air carrier from its obligation to pay compensation to passengers in case of long delay of a flight operated by such aircraft».

Therefore, the collision of an aircraft with mobile stairs must be considered as an event inherent in the normal exercise of the air carrier activity.

So, according to the principle expressed by the court, the air carrier can in no way invoke, in its defense, events that are directly or indirectly connected to the air transport activity, with the consequence that the application of the exemption in favour of airlines is being progressively reduced, obviously to the benefit of passengers.

Indeed, at this point, exceptional circumstances may, in brief, be referred to an unexpected and unavoidable natural event (adverse unpredictable weather conditions), strikes and/or equivalent events referred to the personnel of a different company, other than the airline liable for the delay, which have actually affected the operation of the flight (by way of example sudden strike of air-­‐traffic controller), or to war or terrorist acts that determined the requisition or closure of air space.

Instead, circumstances will have to be excluded such as technical problems of the aircraft, delays in its maintenance or operation irregularities that may put at risk the safety of the flight, all events often invoked by airline companies to defend themselves.