Laura Pierallini May 23 2018 ECJ finds that bird strikes may constitute extraordinary circumstances Studio Pierallini | Aviation - European Union Laura Pierallini Aviation FactsDecisionCommentOn May 4 2017 the European Court of Justice (ECJ) issued its ruling in Marcela Pešková v Travel Service, affirming that – in the context of Article 5 of EU Regulation 261/2004, which can exempt air carriers from their obligation to compensate passengers – a collision between an aircraft and a bird may constitute extraordinary circumstances.FactsThe claimants booked tickets to travel from Burgas, Bulgaria to Ostrava, the Czech Republic on August 10 2013. At the time of their flight, the scheduled aircraft, which was operated by the Czech carrier Travel Service, had already operated in three sectors that day.During the first-sector flight, a technical failure occurred and the repair took one hour and 45 minutes. During the second-sector flight, the aircraft collided with a bird during landing. This resulted in further delay due to technical checks. As a result of these unexpected events, the flight's arrival was delayed by five hours and 20 minutes.DecisionFollowing its ruling in Valentin-Hermann v Alitalia (reiterated in 2016 in Van Der Lans v KLM), the ECJ found that 'extraordinary circumstances' are events which by their very nature or origin are not inherent in the normal exercise of the carrier's activity and are outside its control. However, the court held that a bird strike and any damage caused by such a collision are not intrinsically linked to an aircraft's operating system. In other words, according to the ECJ, such a collision does not meet the Valentin-Hermann test, as it is not inherent to the normal exercise of the carrier's activity and is beyond its control.Pursuant to Article 5(3) of EU Regulation 261/2004, an air carrier can be exonerated from paying compensation if it can prove that an event was caused by an extraordinary circumstance which could not have been avoided, even if all reasonable measures had been taken.In Marcela, the court found that a second check of the aircraft was not required to ensure its airworthiness and affirmed that the delay had not been caused by an extraordinary circumstance according to the wording of the regulation. As a result, compensation was due to the claimants.CommentThe ECJ adopted a divergent approach in Marcela that appears to disregard the EU advocate general's 2016 opinion regarding the same case, which stated that bird strikes do not constitute extraordinary circumstances. The ruling is strange, as it appears to contradict the consolidated consumer-friendly court's orientation regarding the interpretation of 'extraordinary circumstances'.For further information on this topic please contact Laura Pierallini at Studio Legale Pierallini e Associati by telephone (+39 06 88 41 713) or email ([email protected]). The Studio Legale Pierallini e Associati website can be accessed at www.studiopierallini.it.