Pešková and Peška v Travel Service a.s. (2017) C-315/15 CJEU (3rd Chamber)

European Court of Justice, Third Chamber

Facts

7 The applicants in the main proceedings booked a flight from Burgas (Bulgaria) to Ostrava (Czech Republic) with Travel Service.

8 That flight was carried out on 10 August 2013 with a delay in arrival of 5 hours and 20 minutes.

9 That flight formed part of the following scheduled circuit: Prague — Burgas — Brno (Czech Republic) — Burgas — Ostrava.

10 During the flight from Prague to Burgas, a technical failure in a valve was found. Its repair took 1 hour and 45 minutes.

11 During the landing of the flight from Burgas to Brno, according to Travel Service, the aircraft collided with a bird and so the aircraft was subject to checks, although no damage was found. Nonetheless, a Travel Service technician was taken by private aircraft from Slaný (Czech Republic) to Brno to put the aircraft back in operation. He was told by the aircraft’s crew that the checks had already been performed by another firm but its authorisation to carry out the checks was not accepted by Sunwing, the owner of the aircraft. Travel Service once again checked the point of impact, which had earlier been cleaned, and found no traces on the engines or other parts of the aircraft.

12 The aircraft then flew from Brno to Burgas, then from Burgas to Ostrava, the flight taken by the applicants.

Issue(s)

17 In those circumstances, the Obvodní soud pro Prahu 6 (Prague 6 District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is a collision between an aircraft and a bird an event within the meaning of paragraph 22 of the judgment of 22 December 2008, Wallentin-Hermann (C-549/07, EU:C:2008:771), or does it constitute extraordinary circumstances within the meaning of recital 14 of [Regulation No 261/2004], or is it impossible to classify it under either of those concepts?

2. If the collision between an aircraft and a bird constitutes extraordinary circumstances within the meaning of recital 14 of [Regulation No 261/2004], may preventative control systems established in particular around airports (such as sonic bird deterrents, cooperation with ornithologists, the elimination of spaces where birds typically gather or fly, using light as a deterrent and so on) be considered to be reasonable measures to be taken by the air carrier to avoid such a collision? What in this case constitutes the event within the meaning of paragraph 22 of [the judgment of 22 December 2008, Wallentin-Hermann (C-549/07, EU:C:2008:771)]?

3. If a collision between an aircraft and a bird is an event within the meaning of paragraph 22 of [the judgment of 22 December 2008, Wallentin-Hermann (C-549/07, EU:C:2008:771)], may it also be considered to be an event within the meaning of recital 14 of [Regulation No 261/2004], and may, in such a case, the body of technical and administrative measures which an air carrier must implement following a collision between an aircraft and a bird which nevertheless did not result in damage to the aircraft be considered to constitute exceptional circumstances within the meaning of recital 14 of that regulation?

4. If the body of technical and administrative measures taken following a collision between an aircraft and a bird which nevertheless did not result in damage to the aircraft constitutes exceptional circumstances within the meaning of recital 14 of [Regulation No 261/2004], is it permissible to require, as reasonable measures, the air carrier to take into consideration, when it schedules flights, the risk that it will be necessary to take such technical and administrative measures following a collision between an aircraft and a bird and to make provision for that fact in the flight schedule?

5. How must the obligation on the air carrier to pay compensation, as provided for in Article 7 of [Regulation No 261/2004], be assessed where the delay is caused not only by administrative and technical measures adopted following a collision between the aircraft and a bird which did not result in damage to the aircraft, but also to a significant extent by repairing a technical problem unconnected with that collision?’

Discussion

22 Thus, the Court has deduced therefrom that events may be classified as extraordinary circumstances, within the meaning of Article 5(3) of Regulation No 261/2004, if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C-549/07, EU:C:2008:771, paragraph 23; of 31 January 2013, McDonagh, C-12/11, EU:C:2013:43, paragraph 29; and of 17 September 2015, van der Lans, C-257/14, EU:C:2015:618, paragraph 36).

23 By contrast, it is clear from the Court’s case-law that the premature malfunction of certain components of an aircraft does not constitute extraordinary circumstances, since such a breakdown remains intrinsically linked to the operating system of the aircraft. That unexpected event is not outside the actual control of the air carrier, since it is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business (see, to that effect, judgment of 17 September 2015, van der Lans, C-257/14, EU:C:2015:618, paragraphs 41 and 43).

24 In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control.

25 In that regard, it is irrelevant whether that collision actually caused damage to the aircraft concerned. The objective of ensuring a high level of protection for air passengers pursued by Regulation No 261/2004, as specified in recital 1 thereof, implies that air carriers should not be encouraged to abstain from taking the measures required by such an incident by maintaining and prioritising the operation of their flights over the objective of safety.

26 In the light of the foregoing considerations, the answer to the first question is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that a collision between an aircraft and a bird is classified under the concept of ‘extraordinary circumstances’ within the meaning of that provision.

[…]

32 By its third question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that cancellation or delay of a flight is due to extraordinary circumstances where that cancellation or delay is the result of the use by the air carrier of an expert of its choice to carry out the safety checks necessitated by a collision with a bird after those checks have already been carried out by an expert authorised under the applicable rules.

33 It is apparent from the findings of the referring court that, following a collision with a bird, the aircraft concerned, operated by Travel Service, was, after landing, subject to a safety check by an authorised company which did not reveal the existence of damage to the aircraft. Travel Service nevertheless sent a technician to carry out a second safety check on the ground that the owner of the aircraft had refused to recognise the authorisation of the company which had carried out the initial check.

34 In that regard, an air carrier must take measures appropriate to the situation when extraordinary circumstances arise, deploying all its resources in terms of staff or equipment and the financial means at its disposal, in order to avoid, as far as possible, the cancellation or delay of the flight concerned, without being required to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time (judgments of 22 December 2008, Wallentin-Hermann, C-549/07, EU:C:2008:771, paragraph 41, and of 12 May 2011, Eglītis and Ratnieks, C-294/10, EU:C:2011:303, paragraph 25).

35 Thus, although the air carrier may be required, when a collision with a bird occurs, to take certain preventative measures, such as technical and administrative safety checks, following a collision with a bird, measures which are not actually necessary cannot be considered as appropriate to the situation, since an aircraft was already subject to an inspection which established its airworthiness.

36 However, it is for the national court to assess whether, having regard in particular to the technical characteristics of the aircraft concerned, the safety checks already performed were sufficient, in accordance with the applicable rules, to ensure the airworthiness of that aircraft.

37 Having regard to the foregoing considerations, the answer to the third question is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that cancellation or delay of a flight is not due to extraordinary circumstances when that cancellation or delay is the result of the use by the air carrier of an expert of its choice to carry out fresh safety checks necessitated by a collision with a bird after those checks have already been carried out by an expert authorised under the applicable rules.

[…]

43 As regards, in the second place, the preventative measures that the air carrier concerned might be called upon to take to reduce or even prevent the risks of possible collisions with birds, it cannot be ruled out that some such measures may actually be taken by that carrier itself.

44 Thus, in the context of the individual examination which it must carry out in accordance with the case-law referred to in paragraph 30 of this judgment, the national court must, first of all, assess whether, in particular at the technical and administrative levels, the air carrier concerned was, in circumstances such as those in the main proceedings, actually in a position to take, directly or indirectly, preventative measures likely to reduce and even prevent the risks of possible collisions with birds.

45 If it is not, the air carrier is not required to compensate the passengers under Article 7 of Regulation No 261/2004.

46 If such measures could actually be taken by the air carrier concerned, it is for the national court, next, in accordance with the case-law recalled in paragraph 29 of this judgment, to ensure that the measures concerned did not require it to make intolerable sacrifices in the light of the capacities of its undertaking.

47 Finally, if such measures could be taken by the air carrier concerned without making intolerable sacrifices in the light of the capacities of its undertaking, it is for that carrier to show that those measures were actually taken as regards the flight affected by the collision with a bird.

48 It follows from the foregoing conclusions that the answer to the second question is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that the ‘reasonable measures’ which an air carrier must take in order to reduce or even prevent the risks of collision with a bird and thus be released from its obligation to compensate passengers under Article 7 of that regulation include control measures preventing the presence of such birds provided that, in particular at the technical and administrative levels, such measures can actually be taken by that air carrier, that those measures do not require it to make intolerable sacrifices in the light of the capacities of its undertaking and that that carrier has shown that those measures were actually taken as regards the flight affected by the collision with a bird, it being for the referring court to satisfy itself that those conditions have been met.

49 By its fifth question, which it is appropriate to examine next, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that, in the event of a delay to a flight equal to or in excess of three hours in arrival caused not only by extraordinary circumstances, which could not have been avoided by measures appropriate to the situation and which was subject to all reasonable measures by the air carrier to avoid the consequences thereof, but also in other circumstances not in that category, the delay caused by the first event must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival of that flight must be paid as provided for in Article 7 of that regulation.

50 In a situation such as that at issue in the main proceedings where a delay equal to or in excess of three hours in arrival is caused not only by extraordinary circumstances but also by another event falling outside that category, it is for the national court to determine whether, with regard to that part of the delay which the air carrier claims is caused by extraordinary circumstances, that carrier has proved that that part of the delay was due to extraordinary circumstances and could not have been avoided even if all reasonable measures had been taken and in respect of which all reasonable measures had been taken by that carrier to avoid the consequences thereof. If so, that court must deduct from the total length of the delay in arrival of the flight concerned the delay caused by the extraordinary circumstances.

[…]

54 Having regard to all the foregoing considerations, the answer to the fifth question is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that, in the event of a delay to a flight equal to or in excess of three hours in arrival caused not only by extraordinary circumstances, which could not have been avoided by measures appropriate to the situation and which were subject to all reasonable measures by the air carrier to avoid the consequences thereof, but also in other circumstances not in that category, the delay caused by the first event must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival of that flight must be paid as provided for in Article 7 of that regulation.

Useful for

Carrier's own decision to wait breaks the causal chain for extraordinary circumstances under EU261

Collision between an aircraft and a bird is an extraordinary circumstance under EU261

Treaty provisions considered

No treaty provisions considered.

Legislation considered

EU Regulation 261/2004/

Key subjects or concepts

Extraordinary Circumstances/ Local Law on Consumers/

Appeals history

13 By application lodged on 26 November 2013 at the Obvodní soud pro Prahu 6 (Prague 6 District Court), the applicants in the main proceedings each claimed payment of a sum of around CZK 6 825 (6 825 Czech Crowns, approximately EUR 250) under Article 7(1)(a) of Regulation No 261/2004. By decision of 22 May 2014, that court upheld their claim on the ground that the facts of the case could not be considered ‘extraordinary circumstances’ within the meaning of Article 5(3) of that regulation since the choice of procedure to return an aircraft to service following a technical problem, such as a collision with a bird, lay with Travel Service. In that regard, the Obvodní soud pro Prahu 6 (Prague 6 District Court) added that Travel Service had not established that it had done all it could to prevent a delay to the flight, since it merely stated that ‘it was necessary’ after the aircraft suffered the collision with a bird to wait for the arrival of the authorised technician.

14 On 2 July 2014, Travel Service lodged an appeal against that decision. The Městský soud v Praze (Prague Municipal Court, Czech Republic) dismissed that appeal by an order of 17 July 2014, on the ground that the decision of the Obvodní soud pro Prahu 6 (Prague 6 District Court) was final as it had adjudicated on two separate claims of an amount less than CZK 10 000 (approximately EUR 365) each.

15 Seised by Travel Service, the Ústavní soud (Constitutional Court, Czech Republic), by judgment of 20 November 2014, annulled the decision of the Obvodní soud pro Prahu 6 (Prague 6 District Court) on the ground that that court had breached Travel Service’s fundamental right to a fair trial by ruling as a court of last instance that it was not required to refer a question to the Court of Justice for a preliminary ruling under Article 267 TFEU, even though the question of whether the collision of an aircraft with a bird, combined with other technical difficulties, should be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 was not clear from either that regulation or the Court’s case-law.

16 The case was referred back to the Obvodní soud pro Prahu 6 (Prague 6 District Court). That court is doubtful as to whether, if a collision between an aircraft and a bird is classified under the concept of an ‘event’ within the meaning of paragraph 22 of the judgment of 22 December 2008, Wallentin-Hermann (C-549/07, EU:C:2008:771), or under that of ‘extraordinary circumstances’ within the meaning of recital 14 of that regulation, as interpreted by the judgment of 31 January 2013, McDonagh (C-12/11, EU:C:2013:43), or whether those two concepts overlap. It entertains doubts, next, as to whether such events are inherent in the normal exercise of the activity of air transport, having regard, firstly, to their frequency and, secondly, to the fact that a carrier can neither foresee nor control them, that control being exercised by the managers of airports. It also asks whether technical failures consequent upon such a collision and the administrative and technical measures taken to deal with them must also be regarded as extraordinary circumstances and to what extent they may be regarded as necessary. Finally, it is doubtful as to how a delay of or greater than three hours is to be assessed when it is caused, as in the main proceedings, by a combination of several factors, namely the repair of a technical failure, then the checking procedures necessary after a collision with a bird.

Other case information

Lawyers or counsel before the European Court of Justice, Third Chamber:
No counsel or legal team identified for this case.

Additional case references or citations:

Marcela Pešková and Jiří Peška v Travel Service a.s., Case C-315/15, ECLI:EU:C:2017:342.

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