CJEU CASES C-385/23 AND C-411/23 exempted from paying compensation in the event of cancellation or delay at arrival only if it can prove that the cancellation or delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. It is perfectly understandable that when the air carrier was informed by the engine manufacturer had of the existence of a defect of that kind several months before the flight concerned, it is required to take measures to prevent the occurrence and the consequences of such an ‘extraordinary circumstance’. However, we can still have some doubts about these measures appropriate to the situation, namely by measures which, meet conditions which are technically and economically viable for that carrier, taking into account that the air carrier cannot be required to make sacrifices that are unbearable in the light of its capacities, 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). In this particular case, the air carrier concerned had contacted 8 carriers with a view to chartering a replacement aircraft, but the Court seems to consider that this is insufficient and that as part of “all the reasonable measures” which it is required to take in order to prevent the occurrence and the consequences of an ‘extraordinary circumstance’, an air carrier must adopt a preventive measure consisting of having a back-up fleet of aircraft on standby. However, it will always be up to the courts, in assessing these reasonable measures, to evaluate whether the measure is viable for the carrier from a technical, economic and personnel point of view. This will not always be obvious, since it will be for example necessary to evaluate whether having a fleet of reserve aircraft is bearable in terms of the company's capacity at the time. Uncertainty therefore remains in this respect.
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