CJEU CASE C-405/23, TOURISTIC AVIATION SERVICES LTD V FLIGHTRIGHT GMBH circumstance could not have been avoided even if all reasonable measures had been taken and that it had taken measures appropriate to the situation in order to avoid its consequences. The Court is once again reinforcing the burden of proof and the conditions under which the carrier may be exempted from compensation to passengers, even though the situation is beyond its control. Thus, according to the case law of the Court of Justice of the European Union, the carrier must not only take all measures to avoid the circumstance but also all measures adapted to the situation capable of obviating its consequences. When such an incident occurs, we can legitimately ask ourselves what reasonable measures the airline could have taken to avoid the consequences of this event, which precisely was beyond its effective control. The answer to this question remains uncertain, all the more so since such measures must not lead the company to make sacrifices that would be unbearable in the light of the company's capabilities at the time, as the Court has already ruled in a case where the extraordinary circumstance in question was the failure of the refueling system (CJUE 7 July 2022 in case SATA International - Azores Airlines SA ° C-308/2). For example, in the present case, the Court considers that the failures in baggage loading operations at Cologne-Bonn airport were beyond the control of TAS, but the Court very unrealistically imagines that an airline could have avoided the delay in baggage loading by using the services of another service provider. We can then expect different interpretations within the European Union, depending on the local courts, and uncertainty as to the assessment of the reasonable measures that could be taken by the airlines. To be continued...
RkJQdWJsaXNoZXIy MTE4NzM5Nw==