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Van der Lans: Expect the unexpected

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calendar 17 September 2015
globus Denmark

Today, the CJEU handed down its judgment in the long expected van der Lans-case. The European mass media reports that the CJEU has once and for all declined that technical errors may constitute extraordinary circumstances under Regulation 261/2004. That is simply not correct.

Today, 17 Septemper 2015, the Court of Justice of the European Union (CJEU) handed down its judgment in the case between Corina van der Lans and KLM. The case is a so-called preliminary ruling, where a national court (in casu the Rechtbank Amsterdam) raises a number of issues for the CJEU to clarify. The van der Lans judgment has been much expected since April 2014 when the case was filed, although until earlier this week rumours had it that the case had been withdrawn. The case was decided by three judges from respectively, Estonia, Poland and the Czech Republic, together constituting the 9th Chamber of the CJEU.

As this is being written, the case has already been reported in the European media as a landmark decision, which makes it completely impossible for technical problems to qualify as extraordinary circumstances under Regulation 261/2004. However, this is clearly not a correct reading of the judgment.

The facts of the Van der Lans-case
The main case concerns a flight from Ecuador to the the Netherlands. The aircraft however experienced engine failure before take-off due to lack of fuel feed. The problem could be traced back to the engine fuel pump and the hydro mechanical unit. Due to this problem, the passenger was eventually delayed for 29 hours and claimed compensation under Regulation 261/2004.

The case basically concerns the very important question: To what extent and under which circumstances may technical problems relating to an aircraft be considered as extraordinary circumstances in the meaning of Regulation 261/2004?

Air carriers should expect to experience unexpected technical problems!
First of all it should be noted, that the CJEU states that a problem such as that which was at issue in the Dutch case (i.e. the problem with the fuel feed) does not constitute an extraordinary circumstance. The CJEU states that air carriers should in connection with their normal activity be prepared to be confronted with unexpected technical problems.

Hidden defects should however not be expected
On the other hand the judgment clearly also states that certain technical problems may constitute extraordinary circumstances. As examples, the CLEU mentions hidden manufacture defects which impact flight safety or damage due to sabotage or terrorism.

Therefore, when flights are delayed due to technical problems, air carriers must carefully look into the reason behind the technical problem. Ordinary wear and tear that gives rise to technical problems is clearly not extraordinary, and even technical problems that occur suddenly and unexpectedly should not per se be considered extraordinary.

“The one-aircraft test”
The judgment however also introduces an important test, namely the question as to whether a problem only affects one particular aircraft, or whether the problem also affects other aircraft of the same kind. In the latter case, such technical problem may be considered equal to a technical manufacture defect and thus be considered as an extraordinary circumstance, provided it impacts flight safety.

However, what remains to be seen is how the CJEU would look at a technical problem that is extremely rare, e.g. a problem that has never been experienced before and which may thus in that respect be considered equal to a technical manufacture defect.

When interpreting the judgment, it should also be remembered that the technical problem in casu related to a fuel pump, i.e. an aircraft part that is known to cause technical problems from time till time.

Although not mentioned as legal criteria in the judgment, it may also be important to note that the passenger in question was in fact delayed for as much as 29 hours during which time she had to stay in Ecuador.

IUNO’s opinion

The van der Lans-decision has already been referred in the European media as meaning that technical problem with aircraft may never be considered extraordinary. Such interpretation is clearly wrong; as the CJEU states in premise 38 of the decision: ‘Certain technical problems may constitute extraordinary circumstances’.

Therefore, IUNO suggests that all air carriers now go carefully through all pending cases concerning delays due to technical problems in order to decide whether there are cases that may now be settled. Air carriers should be reluctant to accept to pay legal costs in such connection, since there has been very good reason to stay such cases.

Air carriers should also look very carefully into possible options to file for recourse against suppliers of faulty aircraft parts, maintenance companies or similar, as such parties should in some circumstances and depending on applicable contract provisions hold the air carrier harmless for the resulting claims under Regulation 261 / 2004.

Going forward, air carriers should also consider including legal language in supplier contracts that serve to secure recourse for 261 claims resulting from failing aircraft parts / services.

[C-257/14 Corina van der Lans v. Koninklijke Luchtvaart Maatschappij NV]

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