CJEU CASES C-385/23 AND C-411/23 failure was indeed due to a design defect which was difficult to predict, it was inherent in the normal exercise of the activity of an air carrier. On the contrary, the Court of Appeal, Finland held that the failure affecting the fuel gauge had to be regarded as an ‘extraordinary circumstance’, since it was not inherent in the normal exercise of Finnair’s activity and since, by its nature or origin, it was beyond Finnair’s actual control. An appeal was then brought before the Supreme Court, which is the referring court in this case. In this case, the question was more specifically whether the notification or recognition by the manufacturer, after the air carrier’s decision to cancel a flight, of the existence of a hidden design defect which affects an aircraft and liable to impinge on flight safety is capable of constituting an act of a third party which interferes with the carrier’s air activity and, therefore, of constituting an event of external origin required to be considered as an extraordinary circumstafcnce. The answer of the Court is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the occurrence of an unexpected and unprecedented technical failure affecting a new aircraft model recently put into service which results in the air carrier cancelling a flight is indeed covered by the concept of ‘extraordinary circumstances’, within the meaning of that provision, where the manufacturer of that aircraft recognizes, after that cancellation, that that failure was caused by a hidden design defect concerning all aircraft of the same type and impinging on flight safety. 4. CONCEPT OF EXTRAORDINARY CIRCUMSTANCE AND REASONABLE MEASURES EXPECTED: DETECTION OF HIDDEN DEFECT IN THE DESIGN WHERE THE ENGINE MANUFACTURER HAD INFORMED THE AIR CARRIER OF THE EXISTENCE OF A DEFECT OF THAT KIND SEVERAL MONTHS BEFORE THE FLIGHT CONCERNED In case C-411/23 D. S.A. v P. S.A, the question was also to determine whether the notification or recognition by the engine manufacturer of the existence of a hidden defect in the design of an aircraft engine liable to
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