Latest developments in European Client Legislation: Delays in baggage loading a attainable extraordinary circumstance – Fin Serve

On Might 16, the CJEU issued a brand new judgment on air passenger rights when there’s a lengthy flight delay and an airline claims extraordinary circumstances, within the case Touristic Aviation Providers (C-405/23).

In a given case, the flight was delayed by 3hrs and 49 min between Germany and Greece. The delay was a results of an ideal storm of assorted contributing circumstances: shortages of employees in each boarding the earlier flight on this route in addition to in loading the bags on the airplane, but additionally climate circumstances worsening after the airplane was prepared for departure. At a look, we may then say that no less than a few of these circumstances (climate) may qualify as extraordinary circumstances. The primary difficulty on this case was whether or not the scarcity of employees supplied by the operator of the airport, fairly than the airline, to load the bags on the airplane, may quantity to a rare circumstance. If sure, this is able to possible result in a delay for which the airline was  not accountable, i.e.,  not exceeding 3 hours (not lengthy sufficient for compensation underneath Regulation 261/2004). 

The CJEU’s reply just isn’t simple, sadly. There are two circumstances that should be met: the occasion not falling throughout the regular train of the airways’ exercise and it remaining outdoors the airways precise management (para 21). It refers to its earlier case regulation on defects in refuelling programs on the airport as amounting to a rare circumstance if the defect “is the results of a common failure”, in that case within the refuelling system managed by the airport (para 23 – reference to case C-308/21, SATA Worldwide – Azores Airways). The CJEU then advises the nationwide courtroom to test whether or not the scarcity of employees for the bags loading may quantity to a common failure of bags loading operations (para 24). What’s lacking right here is an recommendation as to extra exact parameters that may enable to result in the demarcation of a common failure. Concerning the second requirement, whether or not the airline had management over the bags loading operations may rely, per CJEU, on whether or not the airline may “train efficient management over the operator of that airport” (para 27). May this requirement probably create a distinction between larger and smaller airways, in addition to airways who’ve their hubs at a given airport? Lastly, the nationwide courtroom wants to look at whether or not the airline may have prevented this delay by taking all affordable measures, which might e.g. imply utilizing companies of one other baggage loading service supplier (para 29). This once more might rely upon airways’ assets, resulting in an additional distinction between varied airways in avoiding having to pay compensation underneath Regulation 261/2004.

Total, this judgment doesn’t introduce extra authorized readability by stating {that a} scarcity of employees in baggage loading operations may represent a rare circumstance, however not being very directive on when this might happen.

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