The Court of Justice of European Union (hereinafter will referred as “the Court” or “CJEU”) has published a press release numbered 31/20 regarding the judgment on the case A and Others v Finnair Oyj on March 12, 2020. Overall, the Court has discussed whether an air passenger who is compensated for the cancellation of a flight and who has agreed to travel on an alternative flight is also entitled to claim compensation for a delay in the re-routing flight. 


Facts and Proceedings 


A number of air passengers, the applicants in the case, booked a direct flight from Helsinki (Finland) to Singapore with Finnair. The flight was scheduled to depart on October 11, 2013 however due to a technical defect in the aircraft, the flight was cancelled. Finnair, the defendant Company in the case, offered the applicants to re-route their travel on the Helsinki- Singapore connecting flight via China, with a scheduled departure of October 12, 2013. Finnair was the operating carrier for the Helsinki to China to Singapore re-routing flight. After accepting the offer of Finnair, the applicants were allocated for the re-routing flight as scheduled to arrive on October 13, 2013 to Singapore. Due to the failure of a rudder steering servo on the aircraft in question, applicants’ re-routing flight was also delayed and they eventually arrived in Singapore with a delay of more than six hours after the arrival time specified in the offer they had accepted.


The applicants filed a lawsuit against Finnair before the District Court of Helsinki, Finland seeking to have compensation amounted EUR 600 for each, due to the cancellation of the original flight from Helsinki to Singapore. Besides, they requested EUR 600 each, on account of the delay of more than three hours in the arrival of the Helsinki-China-Singapore re-routing flight pursuant to European Union’s Regulation numbered 261/2004. District Court of Helsinki ordered Finnair of EUR 600 for each passenger for the cancellation of the original flight. As opposed to the request of applicants, the Company claimed that Regulation No 261/2004 does not offer an obligation on the air carrier to pay compensation to a passenger whose flight has been cancelled in the event of delay in the re-routing flight and thus, the re-routing flight had been delayed due to “extraordinary circumstances” subject to Article 5(3) of that regulation.


In order to avoid the doubt, Helsinki Court of Appeal has decided to refer its questions to CJEU as: (i) Is Regulation No 261/2004 to be interpreted as meaning that a passenger who has received compensation for the cancellation of flight and accepted the re-routing flight, is also entitled to compensation for the delay in the re-routing flight? (ii) Secondly, can the operating air carrier rely on extraordinary circumstances within the meaning of Article 5(3) of such Regulation if, following a technical follow-up by the aircraft manufacturer in relation to aircraft already in use, the part dealt with in that document is in fact treated as a so-called ‘on condition’ part, that is to say as a part that is used until it becomes defective, and the operating air carrier has prepared to replace the part in question by permanently stocking a spare part ?


Consideration of the Questions Referred 


Regulation Numbered 261/2004 and dated February 11, 2004 of the European Parliament and of the Council, establishes common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Subject to article 7(1) of such Regulation, air passengers, shall receive compensation based on the distance of their travel. Further subject to article 8(1), air passengers shall also have a right to reimbursement within seven days and re-routing, under comparable transport conditions to their final destination at the earliest opportunity. Addressing to Sturgeon and Others, the Court held that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. The Court stated that, subject to article 3, in paragraph 2 thereof, the scope of the Regulation regards to the air passengers who have confirmed reservation on the flight concerned or have been transferred by the air carrier or tour operator the flight for which they held a reservation to another flight, irrespective of the reason. In this manner, article 3 shall encompass the situation of re-routing of air passengers in the main proceedings. CJEU also reiterates that provisions of Regulation No 261/2004 were not established in a motive to limit the rights of passengers but as opposed, established to address the serious trouble and inconvenience of air passengers.


As a result of this, to answer its first question, the Court concluded that an air passenger who has received compensation for the cancellation of a flight and has accepted the re-routing flight offered to him/her, is also entitled to claim compensation for the delay of the re-routing flight provided that such delay is giving rise to entitlement to compensation and thus, air carrier of the re-routing is the same as that of the cancelled flight. 


By its second question, the Court discussed that whether a failure of a part, rudder steering servo in the main proceedings, which is only replaced by a new part when it becomes defective, provided that it permanently stocks a spare part constitutes an extraordinary circumstance and relieves the Company from paying compensation. The Court’s decision is unambiguous due to its established case-law regarding this topic. 


At first according to article 5(3) of Regulation No 261/2004, an operating air carrier shall not be obliged to pay compensation if it can prove that the cancellation is caused by extraordinary circumstances. Referring to Germanwings judgment, events may be classified as ‘extraordinary circumstances’ within the meaning of article 5(3), 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 and thus, conditions are met cumulative. It is clarified in Wallentin-Herman judgment that, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ . In this manner, failure on rudder steering servo in the aircraft, is a technical shortcoming and shall not in principle constitute an extraordinary situation. 

In light of the considerations, the Court held that the failure of so-called ‘on condition’ part in the main proceedings, by its nature or origin, is inherent in the normal exercise of the activity of the air carrier concerned and is not outside its actual control. Thus, it stated that the referring court shall determine if such failure is not intrinsically linked to the operating system of the aircraft. 


Author: Ezgi Ceren Aydoğmuş