INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW circumstance, and this is confirmed by the Court of Justice of the European Union, in these two decisions of June 13, 2024. 3. CONCEPT OF “EXTRAORDINARY CIRCUMSTANCE” : TECHNICAL FAILURES CAUSED BY A HIDDEN DESIGN DEFECT REVEALED BY THE MANUFACTURER AFTER CANCELLATION OF THE FLIGHT In case C-385/23 Matkustaja A v/ Finnair Oyj, a passenger booked a flight with Finnair from Helsinki (Finland) to Bangkok (Thailand) scheduled for 25 March 2016. That flight was to be operated by an aircraft which had entered into service a little over five months earlier. The fuel gauge of that aircraft experienced a technical failure during refuelling shortly before take-off. Taking the view that that failure fundamentally impinged on flight safety, Finnair cancelled the scheduled flight and did not operate the flight until the following day, namely 26 March 2016, using a back-up aircraft. That flight reached its destination some 20 hours late. Since the model of the aircraft initially earmarked for the flight was a recent one, the defect in question, which had not occurred before anywhere in the world, was unknown prior to that failure. Consequently, neither the aircraft manufacturer nor the aviation safety authority was aware of the defect prior to that incident and they had therefore been unable to report it. Finnair immediately launched an investigation into the cause of the failure affecting the fuel gauge. Approximately 24 hours later, the failure was overcome by emptying the fuel tank and refilling it. The aircraft was then fit to fly again. Subsequent, more detailed investigations carried out by the manufacturer of the aircraft in question revealed that the failure was due to a hidden design defect affecting all aircraft of the same type. Following its refusal to pay to a passenger the lump-sum of EUR 600 in compensation provided for in Article 5(1)(c) and Article 7(1)(c) of Regulation No 261/2004, Finnair argued before the before the District Court where an action was brought that the failure at issue constituted an ‘extraordinary circumstance’ within the meaning of Article 5(3) of that regulation and that it had taken all the measures which could reasonably be expected of it but the District Court considered that although the
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