In a recent preliminary ruling, the European Court of Justice (ECJ) held that a foreign object (eg, a screw or nail) on an airport runway which damages an aircraft represents an extraordinary circumstance under Article 5(3) of the EU Flight Delay Compensation Regulation (261/2004). According to the court, such incidents exempt air carriers from the obligation to pay passengers compensation in the event of denied boarding and flight cancellation or long delays.
On 25 July 2017 the Cologne Regional Court (the appeal court) requested a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (Case C-501/17). The preliminary ruling related to Germanwings GmbH v Wolfgang Pauels, in which a passenger had demanded compensation from an air carrier because of a considerable delay (three hours and 28 minutes) before a flight from Dublin to Düsseldorf with Germanwings (the defendant).
The defendant argued that the delay had occurred during the preparations for take-off. A screw had been found in one of the aircraft's tyres, so the tyre had to be replaced. Therefore, the defendant refused to pay compensation to the plaintiff on the grounds that the delay had occurred due to extraordinary circumstances within the meaning of Article 5(3) of the EU Flight Delay Compensation Regulation, thereby discharging it from its obligation to pay compensation under Article 5(1) of the regulation.
The Local Court Cologne, which handled this case in the first instance, ordered that the defendant had to pay €250 in compensation under Article 7 of the EU Flight Delay Compensation Regulation. As justification, the local court stated that damage caused to an aircraft tyre by a screw on the runway of an airport is:
- a circumstance covered by normal air operations;
- inherent in air carriers' normal exercise of activity; and
- effectively controllable by air carriers.
The defendant appealed against this decision before the appeal court, asserting that the local court had overestimated what was within its control. The defendant stated that the use of an airport runway is attributable to general air traffic and is not a specific area of responsibility of an air carrier. Therefore, runway cleaning does not fall within an air carrier's tasks and is beyond its control.
The appeal court stated that the outcome of the case would depend on whether the damage to the tyre caused by a foreign object on the runway fell within the scope of the air carrier in question's normal activity. The court also referred to previous decisions of other national courts, which had ruled that tyre damage caused by a screw or comparable object lying on the runway constitutes an exceptional circumstance insofar as the presence of such foreign bodies constitutes a danger which air carriers cannot control. Therefore, unlike the premature occurrence of defects in certain parts of an aircraft despite regular maintenance, such incidents constitute supervening extraneous events.
The appeal court also mentioned numerous court decisions to the contrary. For example, in Siewert (C-394/14, EU: C: 2014: 2377 of 14 November 2014), the court assumed that aircraft tyre damage that had been caused by foreign objects on a runway could not be compared to collisions with boarding stairs. However, in the present case, the appeal court held that the incident should rather be compared to a bird collision, as reflected in Pesková and Peska (C-315/15, EU: C: 2017:342 of 4 May 2017).
Therefore, the appeal court considered it necessary to refer the matter to the ECJ for a preliminary ruling in order to clarify whether the incident constituted an 'extraordinary circumstance' within the meaning of Article 5(3) of the EU Flight Delay Compensation Regulation. The appeal court referred the following question to the ECJ:
Is the damage to an aircraft tyre caused by a screw lying on the take-off or landing runway (foreign object damage) an extraordinary circumstance within the meaning of Article 5 (§) of Regulation No 261/2004?
On 4 April 2019 the ECJ ruled that a foreign body on a runway which damages an aircraft constitutes an extraordinary circumstance and entitles the affected airline to refuse to pay compensation for flight delay if it has used all means at its disposal to limit the said delay.
The ECJ followed the opinion of Advocate General Evgeni Tanchev, who argued that extraordinary circumstances within the meaning of the EU Flight Delay Compensation Regulation may be regarded as incidents which, by their nature or origin, do not form part of the normal exercise of air carriers' activity and are not effectively controllable by air carriers. Although air carriers are regularly confronted by tyre damage to their aircraft, tyre damage caused solely by a collision with a foreign body on an airport runway cannot, by its nature or cause, be regarded as part of the normal exercise of air carriers' activity. Therefore, it must be considered an extraordinary circumstance within the meaning of the EU Flight Delay Compensation Regulation (and thus similar to a bird strike).
However, the ECJ also stressed that not every exceptional circumstance automatically entitles air carriers to refuse compensation under Article 7 of the EU Flight Delay Compensation Regulation. An air carrier is not obliged to pay compensation only if it can demonstrate that it adopted measures appropriate to the situation (ie, in terms of the staff, equipment and financial means at its disposal) in order to avoid changing the tyre damaged by a foreign object lying on the airport runway.
The ECJ's preliminary ruling has clarified that tyre damage to an aircraft caused by small parts lying on the runway constitutes an extraordinary circumstance, which can relieve the affected air carrier of its obligation to compensate passengers.
This decision should be welcomed because legal certainty has been gained within the aviation sector by referring once more to its extensive case law, especially by rightly comparing this case with the bird strike case. In this regard, the ECJ pointed out that a foreign object on a runway is not part of the normal exercise of air carriers' activity and air carriers have no control over the risk that such incidents present.
However, it remains the duty of each air carrier to ensure that aircraft tyres are subject to regular checks and are changed according to standard procedures. Clearly, airport operators are responsible for maintaining and cleaning their runways, not air carriers.
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