Corina van der Lans v KLM (C-257/14) [17.09.15]

The European Court of Justice (CJEU), following a hearing in Luxemburg on 8 May 2015 concerning questions put to the CJEU by the Dutch Court in Van der Lans v KLM, handed down its judgment on 17 September 2015.

The decision, whilst reaffirming the decision in Wallentin-Hermann v Alitalia (C-549/07), and thus preserving the extraordinary circumstances defence in the context of manufacturing defects, provides no relief for airlines from the decision of the Court of Appeal in Huzar v Jet2.com [2014] , that an unexpected and unforeseeable technical fault did not, prima facie, amount to an extraordinary circumstance within the meaning of Article 5(3) EC Regulation 261/2004 (the “Regulation”). 

Background 

Ms van der Lans flew from Ecuador to Amsterdam on 13 August 2009 and arrived in Amsterdam with a delay of 29 hours. KLM maintained that the delay was due to extraordinary circumstances as a result of defects in aircraft components (including the engine fuel pump and the hydro mechanical unit) only identified during ‘push back’. The components required were not available at the Ecuadorian airport and had to be flown in from Amsterdam for installation. KLM argued that the components had not exceeded their average lifetime and the manufacturer had not provided information to suggest when defects may arise within the components’ lifetime. 

Ms van der Lans brought a claim against KLM in the Netherlands stating that KLM could not rely on the extraordinary circumstances defence as the delay was caused by a technical problem. 

The Dutch Court referred 10 questions to the CJEU for a preliminary ruling. The questions included whether a technical problem, which occurred unexpectedly or spontaneously, and was not as a result of routine maintenance issues or discovered during regular maintenance, fell within the definition of extraordinary circumstances as being outside the control of the airline. 

Decision

“Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that a technical problem, such as that at issue in the main proceedings, which occurred unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ within the meaning of that provision.”

The CJEU commented that “the functioning of aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course in the exercise of their activity with such problems”. The CJEU also observed that, although the malfunction of the component would constitute an unexpected event, “nevertheless, such a breakdown remains intrinsically linked to the very complex operating system of the aircraft”. The CJEU therefore concluded that the unexpected event was “inherent in the normal exercise of an air carrier’s activity, as air carriers are confronted as a matter of course with unexpected technical problems”, and that the prevention of such problems was not beyond the control of the carrier. 

Comment 

The decision provides some clarity with regard to technical problems as extraordinary circumstances, but not as much as had been hoped. The CJEU has, essentially, confirmed the outcome of Huzar v Jet2.com in the Court of Appeal of England and Wales, which effectively limited the scope of the extraordinary circumstances defence, in the context of technical events, to those arising from manufacturing defects. 

Previously the Court of Appeal for England and Wales, in Huzar v Jet2.com, confirmed that technical problems were inherent in the normal activity of the airline operator and not beyond the control of the carrier, prima facie precluding technical issues from amounting to an extraordinary circumstance, albeit preserving the defence in the context of a manufacturing defect. This decision confirms that “certain technical problems may constitute extraordinary circumstances” where a “hidden manufacturing defect which impinges on flight safety” is discovered to affect in-service aircraft. Therefore, the decision is consistent with the position in England and Wales, and the decision inWallentin-Hermann, with regard to passenger entitlement to compensation for delay caused by technical problems. 

This decision does, however, perhaps re-ignite the debate on whether the first stage of the extraordinary circumstances defence is a two limb test, that is, as part of the two stage test for the extraordinary circumstances defence under the Regulation, (being a circumstance that is extraordinary and that all reasonable measures were taken by the airline to avoid the disruption arising from the extraordinary circumstance) the first stage, the ‘circumstance’, can be split into two tests to be satisfied separately of each other: 

Firstly:

  • That the circumstance was not ‘inherent’ in the normal exercise of an air carrier’s activity

Secondly:

  • That the circumstance was beyond the actual control of that carrier.

The decision appears to treat the two limbs conjunctively, so that both these points may, in future, be treated as separate hurdles, both of which have to be discharged. This is in contrast to previous decisions appearing only to suggest that the limbs were disjunctive or complementary in understanding when a circumstance will be extraordinary. This was discussed in Huzar v Jet2.com in which the court approached the issue by, essentially, treating the “second limb” as merely illuminative of the first. 

Defending a two stage test in relation to “the circumstance” of the extraordinary circumstances defence is only likely to increase the difficulty of defending such claims.