As is now all too familiar to the airline industry, in a landmark ruling, the Court of Appeal in Huzar held that a delayed or cancelled flight ‘is not covered by the concept of “extraordinary circumstances” within the meaning of that provision [referring to EC Regulation 261/2004], unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control’, despite the technical problem being unforeseen and unforeseeable. An event is deemed not to be inherent in the normal exercise of the activity of the air carrier if it is ‘out of the ordinary’. 

Following the refusal of the Court of Appeal to grant Jet2 permission to appeal to the Supreme Court in Huzar, it has been widely reported that airlines can no longer use technical issues, including mechanical failure, as a reason not to pay compensation to passengers whose flights are delayed or cancelled. 

The ruling has led to the release of a number of stayed claims in the English courts. However, in light of the preliminary reference made by Rechtbank Amsterdam (Netherlands) in van der Lans -v- KLM (Case C-257/14), some airlines have questioned whether this release is premature.

Among other things, in van der Lans, KLM has asked the Court of Justice in Luxembourg to clarify the relationship between ‘unexpected flight shortcomings’ and ‘extraordinary circumstances’ and the interpretation of ‘inherent in the normal exercise of air carrier’s activity’.  

Jet2 has already taken steps to seek continuations of stays in light of van der Lans on the grounds that ‘the EU CJ is the supreme tribunal for determining questions of EU Law’.

While passengers’ representatives will argue that the English courts in Huzar have now answered these questions, we shall now have to wait and see whether this will be enough to stay claims further or delay the payment of compensation falling due following the ruling in Huzar

Key questions referred to the ECJ in van der Lans

  • How must the concept of 'event' in recital 14 to EC 261/2004 be interpreted?
  • Is it correct that the events referred to in paragraph 22 of the judgment of the ECJ in Wallentin are not the same as the 'event' referred to at recital 14?
  • What should constitute an 'extraordinary circumstance' if 'unexpected flight safety shortcomings' cannot themselves constitute extraordinary circumstances?
  • It is suggested at paragraphs 22 to 24 of Wallentin that a technical problem covered by 'unexpected flight safety shortcomings' (listed in recital 14) may be regarded as extraordinary if it relates to an event which is not inherent in the normal exercise of the activities of the air carrier and beyond the actual control and account of the carrier (i.e. a manufacturing defect per paragraph 26 of Wallentin).  Must 'inherent' be interpreted as meaning that only events which are within the actual control of the air carrier can be covered by the concept? 
  • Does it follow that a technical problem which arose spontaneously and not (and could not be) detected during routine maintenance checks can/cannot be considered an extraordinary circumstance?

Recital 14 EC 261/2004

‘As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.’

Paragraph 22 Wallentin-Herman, C-549/07

‘It is apparent from that statement in the preamble to Regulation No 261/2004 that the Community legislature did not mean that those events, the list of which is indeed only indicative, themselves constitute extraordinary circumstances, but only that they may produce such circumstances. It follows that all the circumstances surrounding such events are not necessarily grounds of exemption from the obligation to pay compensation provided for in Article 5(1) (c) of that regulation.’