had been taken”.68 Reg. (EC) No. 261/2004 doesn’t provide a de!nition of the term which therefore has become subject to extensive case law of the CJEU.69 In these judgements, the CJEU repeatedly emphasized that “extraordinary” and “unavoidable” are two separate and cumulative requirements. To release the air carrier from compensation, an event therefore has to be • beyond the actual control of the carrier; and • not inherent in the normal exercise of the activity of the air carrier concerned. In the CJEU’s extensive case law on ‘extraordinary circumstances’ in the context of air passenger rights, despite some inconsistencies, a tendency has emerged to regard events that have an external impact on #ight operations and are beyond the control of the air carrier as ‘extraordinary circumstances’. "e Directive, however, de!nes the term “unavoidable and extraordinary circumstances” as meaning “a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken“.70 "is de!nition doesn’t make the least reference to a requirement of the situation to be „extraordinary“ or „not inherent in the normal exercise of the activity of the organiser concerned”. From the wording of the de!nition, it therefore remains unclear whether such requirement has to be added or whether the concept of “unavoidable and extraordinary circumstances” under the Directive in this regard is distinct from the concept of “extraordinary circumstances” under the Air Passenger Rights Regulation.71 If the correct interpretation was that any situation covered by the wording of the de!nition in Article 3 (12) constituted “unavoidable and extraordinary circumstances”, the liability under the new Directive wouldn’t be much di%erent from the previous legal situation and remain close to a fault liability.72 68 Article 5 (3) of 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 #ights, and repealing Regulation (EEC) No 295/91. 69 See case C- C-549/07 - Wallentin-Herman v Alitalia; joint cases C-402/07 – Sturgeon v Condor and C-432/07 Böck ea v Air France; C-394/14 – Siewert v Condor; case C-315/15 – Pešková ea v Travel Service; joint cases C-195/17, C-197/17 – C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 – C-286/17 and C-290/17 – C-292/17 –Krüsemann ea v TUIFly. 70 Article 3 (12). 71 For a comprehensive analysis of the issue see Wukoschitz, “Extraordinary” Legislative Shortcomings in the New PTD in Franceschelli/Morandi/Torres, "e New Package Travel Directive [2017]. 72 "is approach seems to be favoured by Grant/Mason/Bunce, Holiday Law6, 5-013 and 5-016. 357 ARTICLE 14 | MICHAEL WUKOSCHITZ
RkJQdWJsaXNoZXIy MTE4NzM5Nw==