AIR PASSENGER RIGHTS BEFORE, DURING, AND AFTER COVID-19 The airline is not obligated to pay compensation under Article 7 if it can prove that the flight cancellation is due to extraordinary circumstances that could not have been avoided even if all appropriate measures had been taken.63 Although the provision explicitly addresses only flight cancellations, this exception also applies to delays,64 but not to denied boarding.65 The Regulation, in recital 14 of its preamble, provides examples of when extraordinary circumstances may occur. These include political instability, adverse weather conditions, security risks, unforeseen technical deficiencies affecting flight safety, as well as strikes affecting the airline's operations. The listed examples do not automatically constitute the existence of extraordinary circumstances and exemption from the obligation to pay compensation. They only represent events that, may potentially lead to such an outcome.66 Due to the ambiguity of what constitutes extraordinary circumstances, the CJEU has developed the following criteria in its practice that should be met for an event to be classified as extraordinary circumstances: 1. The nature or origin of the event should not be inherent in the normal exercise of the activity of the air carrier concerned; and 2. The event is beyond the air carrier's actual control.67 As explained, the above is not sufficient to exempt the carrier from paying compensation; who must also prove the following: 1. The extraordinary circumstances could not have been avoided even if all reasonable measures had been taken; and 2. Where such circumstances did arise, the air carrier adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid that situation (without the air carrier being required to make intolerable sacrifices).68 Since extraordinary circumstances represent an exception to the general rule of the air carrier's liability, its interpretation requires a restrictive approach.69 Below is a review of more recent case law from the CJEU providing answers to what events are considered extraordinary circumstances and which are not. 63 Art. 5(3) of the Regulation. 64 Joined cases C-402/07 and C-432/07, Sturgeon of 19 November 2009, paras. 67 and 69. 65 Case C-22/11, Finnair of 4 October 2012, para. 36. 66 Case C-195/17, Krüsemann of 17 April 2018, para. 34; Pazos, 2021, p. 742. 67 Case C-549/07, Wallentin-Hermann of 22 December 2008, paras. 23, 27 in 34. 68 Case C-74/19, Transportes Aéreos Portugueses of 11 June 2020, paras 36 and 57; Case C501/17, Germanwings of 4 April 2019, para. 19. 69 Pazos, 2021, p. 743.
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