Keywords
Summary

Keywords

Transport – Air transport – Regulation No 261/2004 – Compensation and assistance to passengers in the event of cancellation of a flight – Exemption from the obligation to pay compensation in the event of extraordinary circumstances – Implementation, by the air carrier, of reasonable measures to avoid extraordinary circumstances

(European Parliament and Council Regulation No 261/2004, Arts 5(3) and 6(1))

Summary

Article 5(3) of Regulation No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, must be interpreted as meaning that an air carrier, since it is obliged to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of such circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. The assessment of the reasonable nature of the measures taken to provide for a reserve time so as to prevent, if possible, the delay resulting from extraordinary circumstances leading to cancellation of the flight must be carried out not with regard to the delay in relation to the aeroplane’s scheduled departure time, but taking account of the delay that may exist at the end of the flight operated in the new conditions to which the extraordinary circumstances have given rise. Consequently, that assessment must take account of those secondary risks, insofar as their constituent elements are foreseeable and calculable.

However, that provision cannot be interpreted as requiring, as a ‘reasonable measure’, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise. The assessment of the ability of the air carrier to operate the programmed flight in its entirety in the new conditions resulting from the occurrence of those circumstances must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier’s being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.

Article 6(1) of that regulation is not applicable in the context of the assessment of the reasonable nature of measures taken, by the air carrier, to provide for a reserve time so as to operate the flight in its entirety. That provision relates to various categories of ‘delay’ attributable to the air carrier and not connected with the occurrence of extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.

(see paras 32, 34, 36-37, operative part)