Article written by FTPA Aviation Law team: Isabelle Francelet and Nathalie Younan.
Several other national judges within the European Union had already ruled in this direction, notably in the UK, Germany and Spain.
Although the European Court of Justice (hereafter the “ECJ”) has not ruled on this issue yet, it can be argued that the decision made by the Court of cassation appears to be in contradiction with the criteria developed over time by the ECJ in its case law, when determining the existence of extraordinary circumstances or lack thereof.
There have been several cases where the ECJ has specified its interpretation of Article 5(3) of Regulation (EC) n°261/2004 according to which “an operating air carrier is not obliged to pay compensation as foreseen in Article 7, if it can prove that the cancellation was due to extraordinary circumstances that could not have been avoided, even if all reasonable measures had been taken.”
Since 2009, the ECJ has in fact established two necessary conditions for events to be classified as extraordinary circumstances: (i) that such events, by virtue of their nature or their origin, not be inherent to the normal practice of the air carrier’s activities, and (ii) that they be outside its actual control.
Therefore, the Court rejected this classification in such cases as the collision of a mobile boarding ramp with an aircraft 5 or a technical failure due to the lack of maintenance of parts of an aircraft. These circumstances are considered by the ECJ as being intrinsically linked to the aircraft’s operation and thereby not to be outside the actual control of the air carrier, insofar as it has the responsibility of ensuring the proper maintenance of its fleet.
On the other hand, the Court of Justice found that the collision between an aircraft and a bird did indeed constitute extraordinary circumstances, notwithstanding the damage caused to the aircraft, as such an event, albeit usual or at the least predictable, represents an external natural phenomenon, extrinsic to the carrier’s activity.
Following this ECJ ruling, the Court of cassation had recognized that lightning falls within the concept of ‘extraordinary circumstances’, explicitly referring to the ECJ case law. In that instance, the Court had stressed the dual cumulative criteria of inherency and actual control exercised be the carrier to conclude that such a meteorological event was to be seen as extrinsic to the carrier and beyond its actual control.
Therefore, by refusing to classify the pilot’s illness as ‘extraordinary circumstances’, the Court of cassation appears to have assimilated the flight crew to an intrinsic part of the aircraft, insofar as they enable its operation. However, although there is no denying that an aircraft cannot take off without the action of its pilots and that the carrier must ensure that the said pilots undergo regular checks to evaluate their technical competencies (in particular through simulator or in-flight assessments, as well as medical check-ups to ascertain their overall state of health) , it is nonetheless more arguable to characterize illness as being usual and, all the more, to consider that the air carrier is in a position to exercise any control whatsoever over the occurrence of illness.
The Court, in recognizing lightning as not being inherent in the normal exercise of the activity of the air carrier had agreed with the reasoning of the Public Prosecutor, Jean-Pierre Sudre, who had rightfully pointed out that: “Although the occurrence of a storm can be considered to be inherent in the normal exercise of the air carrier’s activity, this does not apply to an aircraft being struck by lightning, as such an event will necessarily be beyond the carrier’s control.”
In view of this, it is regrettable that regarding the sudden illness of the pilot, the Court of cassation chose not to draw a parallel with the distinction previously drawn between a storm, as a usual meteorological event and lightning striking an aircraft, as an unpredictable external and therefore extraordinary event. Therefore, although the unavailability of a member of crew can be regarded as inherent in the normal exercise of the air carrier’s activity, the sudden illness of the pilot requiring an emergency hospital admittance (as in the action brought before the Court) does not however appear to fall within this classification and is clearly outside the carrier’s actual control.
The decision of 5 February 2020 briefly states: “Having established that the pilot received medical attention on 12 August 2017 at [….] Airport, the judgment legitimately provides that illness or sudden unavailability for medical reasons does not represent an unusual event and cannot be classified as ‘extraordinary circumstances’ as specified in Article 5, paragraph 3 of Regulation n° 261/2004, dated 11 February 2004.”
The Court of cassation may well need to review this position in coming months, as the Council of the European Union will submit a draft proposal to the European Parliament at the end of June 2020, with a view to modifying Regulation 261/2004. The proposed changes will include an exhaustive list of extraordinary circumstances, among which will be the sudden illness of a member of crew.
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