Last week advocate general Bot released an opinion in respect of a referral made by the national Czech Republic courts for a preliminary ruling on whether a bird strike should be considered an extraordinary circumstance (C-315/15 - Marcela Pešková, Jiří Peška -v- Travel Service as). Whilst advisory in nature, the opinion has concluded that bird strikes do not fall within the extraordinary circumstances defence currently available to carriers since, in his opinion, they are inherent in the normal exercise of the activity of a carrier.
This stance is not unfamiliar in the UK, in particular since the Manchester County Court decision in Ash -v- Thomas Cook.
Whilst the EU Commissions’ Interpretive Guidelines remain silent in respect of bird strikes, this recent opinion contradicts the Civil Aviation Authority’s latest list of extraordinary circumstances (dated March 2016) which currently provides that ‘bird-strikes to the aircraft during a flight which might cause damage which requires immediate compulsory checks and possible repair’ would be construed as an extraordinary circumstance by the CAA provided reasonable measures had been adopted to mitigate the resulting disruption.
The ECJ is expected to hand down its judgment in line with this opinion, meaning a new ECJ precedent is on the horizon. With this in mind, there is a high risk that any pending claims of a similar nature (such as Scholes -v- easyJet which is expected to be heard in September 2016) in the UK national courts will be determined in line with this judgment, once released.
At the time of writing, the opinion is not available in English.