EGLITIS AND RATNIEKS

[2011] EUECJ C-294/10, Court of Justice of the European Union, 12 May 2011

Air transport - Compensation of passengers in the event of cancellation of a flight - Exemption from the obligation to pay compensation in the event of extraordinary circumstances - Air carrier implementing all reasonable measures to avoid extraordinary circumstances - Organisation of resources in good time to ensure the operation of the flight after such circumstances have ended - Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, article 5(3)

The claimants were passengers on a cancelled flight from Copenhagen to Riga scheduled for 14 July 2006. The claimants sought compensation. The carrier refused to pay. The passengers' case was that the cancellation in reality was not due to a temporary closure of Swedish air space but to the fact that the crew's working hours has expired by the time air space reopened. The Latvian Supreme Court referred the following questions to the EU court. "(1) Is Article 5(3) of [Regulation (EC) No 261/2004] to be interpreted as meaning that an air carrier is required, in order to be found to have taken all reasonable measures to avoid extraordinary circumstances, to organise its resources in good time so that it is possible to operate a programmed flight once the unforeseen extraordinary circumstances have ceased to obtain, that is to say, during a certain period following the scheduled departure time? (2) If the first question is to be answered in the affirmative, does Article 6(1) of Regulation [(EC) No 261/2004] apply for the purpose of determining the minimum ‘reserve time' which the air carrier, when organising its resources at the appropriate time, must provide for as a possible foreseeable delay in the event that extraordinary circumstances arise?" The Court of Justice of the EU ruled as follows. Article 5(3) of 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. 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 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 such an assessment.