CJEU CASES C-385/23 AND C-411/23 cancellation (CJUE 19 Nov. 2009, Case C-402/07, Sturgeon (Cts) v Condor Flugdienst GmbH ). In these two cases C-385/23 Matkustaja A v/ Finnair Oyj and C411/23 D. S.A. v P. S.A, the question was whether technical failures caused by a hidden design defect revealed by the manufacturer of the aircraft or by a competent authority may constitute an “exceptional circumstance” within the meaning of Article 5(3) of Regulation (EC) N° 261/2004. 2. PRINCIPLE: TECHNICAL PROBLEMS ARE NOT CONSIDERED AS EXTRAORDINARY CIRCUMSTANCES The Court has established for a long time, as a matter of principle, that technical failures or breakdowns cannot be considered as extraordinary circumstances, unless the two cumulative conditions of being by their nature or origin, not inherent in the normal exercise of the activity of the air carrier concerned and being beyond that carrier’s actual control are met (CJEU, 22 December 2008 Wallentin-Hermann v Alitalia, Case C549/07). Then, a technical problem which comes to light during aircraft maintenance or is caused by failure to maintain an aircraft cannot be regarded as ‘extraordinary circumstances’. Furthermore, even where a technical problem which has occurred unexpectedly is not attributable to poor maintenance and is not detected during routine maintenance checks, such technical problem does not fall within the definition of “extraordinary circumstances” (CJEU 17 September 2015 Van der Lans v/Koninklijke Luchtvaart Maatschappij NV, Case C257/14). The failure of a so-called ‘on condition’ part, that is to say, a part which is replaced only when it becomes defective, even though it permanently stocks a spare part does not constitute an extraordinary circumstance within the meaning of Article 5(3) of Regulation (EC) N° 261/2004 either ( CJEU 12 March 2020 Finnair Case C 832/18). However, the situation is different in the case of a hidden manufacturing defect revealed by the aircraft manufacturer or by a competent authority, which can be considered as an extraordinary
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