The European Court on ‘extraordinary circumstances’, Part II

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The European Court’s Eglitis decision, handed down on 12 May 2011, did not attract much attention. True, the case is not spectacular but it sheds a bit more light (darkness some will say) on the meaning of ‘extraordinary circumstances’ in case of cancellation or a long delay (Air Passenger Rights, p. 35-36 and 50-51).

On 14 July 2006, passengers for the Air Baltic flight from Copenhagen to Riga, departure time 20.35, had boarded the aircraft when Swedish air space in the Malmö region was closed as a result of failures in the power supply. This led to a breakdown in radars and air navigation systems and prevented the aircraft from taking off. At 22.45 the passengers were told that the flight was cancelled.

Two passengers, Mr Eglītis and Mr Ratnieks, brought a compensation claim against Air Baltic. They submitted that the reason for the cancellation was not the closure of Swedish air space but rather the expiry of the permitted working hours for the crew of that flight. Four years after the cancellation, the Latvian Supreme Court asked the European Court whether the cancellation was caused by extraordinary circumstances.

The European Court said that an air carrier must implement all reasonable measures to avoid extraordinary circumstances. Therefore, at the stage of organising the flight, it must 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.

However, the length of the required reserve time must not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.

What are the consequences of this decision? At main hubs, airlines will have reserve personnel available so that they cannot invoke extraordinary circumstances. At distant airports this may be different. However, the decision implies that when a flight is delayed, airlines cannot cancel a flight for the sole reason that the crew had reached its permitted working hours. It can only do so if it can prove that allowing for reserve personnel would have led to intolerable sacrifices in the light of the airline’s capacities.

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