On 4 April 2019, the Court of Justice of the European Union (CJUE) handed down its judgment in Germanwings GmbH v Wolfgang Pauels (C-501/17), ruling that damage to an aircraft tyre caused by a screw lying on an airport runway falls within the notion of “extraordinary circumstances” within the meaning of Regulation (EC) No 261/2004 (Regulation EU261).
This judgment clarifies the “inherency test” as well as underlining the overriding importance of flight safety as compared to the timeliness of flights.
Mr Pauels booked a flight from Dublin to Düsseldorf with Germanwings. The flight arrived at destination with more than three hours delay and Mr Pauels claimed for compensation. Germanwings refused to pay compensation on the grounds that the delay was due to “extraordinary circumstance” with the meaning of Article 5(3) of Regulation EU261 thereby discharging it from its obligation to pay compensation. Indeed, the delay was caused by a screw found in a tyre of the aircraft during the preparations for take-off, which required that the tyre be changed. The screw had been lodged in the tyre on the take-off or landing runway used by the aircraft on its immediately preceding flight.
Germanwings was condemned in first instance and lodged an appeal before the Landgericht Köln (Regional Court, Cologne) which decided to stay the proceedings and to refer the following question to the CJUE for a preliminary ruling: “Is the damage to an aircraft tyre caused by a screw lying on the take-off runway an extraordinary circumstance within the meaning of Article 5(3) of [Regulation EU261]?”
In order to answer this question the CJUE applied the two-limb test already identified in its previous case-law: (i) the cancellation/delay must be attributable to an event which is not inherent to the normal exercise of the activity of the air carrier (Inherency test), and (ii) the event must be outside that carrier’s actual control (Control test).
- Inherency test
This test has been introduced by the CJUE in the Wallentin-Hermann case (C-549/07) and has resulted in some inconsistencies. On the one hand the CJUE has held that an event which is not inherent to the normal exercise of the activity of the air carrier is an event that is not intrinsically linked to the operating system of the aircraft (see case c-315/15, Pešková and Pešková v Travel Services a.s.). On the other hand the CJUE has held that an event which is not inherent to the normal exercise of the activity of the air carrier is an event that the air carrier does not often/regularly encounter when carrying out its activities (see joined cases C-195/17, C-197/17 to C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 to C-286/16 and C-290/17 to C-292/17, Helga Krüsemann e.a. & Others v TUIfly GmbH). The result of this has been some confusion as to the characterization of events that are not intrinsically linked to the operating system of the aircraft but which often/regularly occur (e.g. bird strikes).
In this recent judgment the CJUE clarifies its position by stating that “the malfunctioning in question is the sole result of the impact of a foreign object, […], such malfunctioning cannot be regarded as intrinsically linked to the operating system of that aircraft. That is, inter alia, true of damage to an aircraft caused by its collision with a bird (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 24) and, as in the case in the main proceedings, of damage to a tyre caused by a foreign object, such as loose debris, lying on the airport runway.” Therefore, the Court seems to be following the opinion of its Advocate-General and has chosen to ignore the question as to whether or not the event regularly occurs.
In this case, as in the Pešková case, the CJUE has held that since the event is not intrinsically linked to the operating system of the aircraft the event is not inherent to the normal exercise of the activity of the air carrier.
- Control test
In order to be qualified as “an extraordinary circumstance”, the event must also be outside that carrier’s effective control.
In this case, the Court held that the screw lying on the runway was outside the carrier’s effective control. Indeed, as underlined by the Advocate-General in his opinion, “the maintenance and cleaning of runways is not the responsibility of the air carrier, but that of the airport operator”.
Applying the two-limb test, the CJUE ruled that damage to an aircraft tyre by a screw lying on an airport runway falls within the notion of “extraordinary circumstances” within the meaning of Regulation EU261.
This judgment including the opinion of the Advocate-General, underlines the fact that the inherency test is to interpreted by reference to the question as to whether or not the event that has occurred is intrinsically linked to the operating system of the aircraft without reference to the question as to whether or not the event frequently occurs. If the event is not intrinsically linked to the operating system of the aircraft then it will constitute an extraordinary circumstance provided that it is also beyond the carrier’s effective control. This allows for the possibility of qualifying as extraordinary circumstances events such as adverse weather, ATC restrictions, bird strikes, lightning strikes, airport closures and strikes which are not intrinsically linked to the operating system of the aircraft and which, in most cases at least, are beyond the carrier’s effective control.
 A delay above three hours entitles passengers to compensation (see. Joined cases C-402/07 and C-432/07, Sturgeon and Others v Condor Flugdienst GmbH) except if the air carrier can prove that the delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken