Fuel spillage and compensation for passengers in case of flight delay; but what if the fuel spills out of another aircraft of the same airline?
On 26 June 2019, the Court of Justice of the European Union ruled on the obligation for airlines to pay compensation – under Article 5 of Regulation (EC) No 261/2004 ,– in case of long delay of a flight caused by the runway’s closure due to fuel spillage.
The case involved a renowned low-cost air carrier and a passenger whose claim for compensation for more than 4 hours delay on a flight from Treviso to Charleroi was refused by the airline. Such delay originated from the presence of petrol on one of the runways of Treviso airport, resulting in the closure of the runway for more than two hours and, consequently, the postponement of the take-off of the aircraft making the flight in question.
The air carrier refused to grant that request on the ground that the long delay of the flight was due to an “extraordinary circumstance” within the meaning of Article 5(3) of Regulation No 261/2004 according to which an air carrier shall not be obliged to pay compensation in case of cancellation or arrival delay if it can prove that such cancellation or delay is caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.
The court seized of the action brought by the passenger therefore asked the Court of Justice whether the spillage could be classified as an “extraordinary circumstance”, capable of exonerating the air carrier from its obligation to compensate passengers in case of significant delay, as such “extraordinary circumstance” could not have been avoided even if all reasonable measures had been taken.
Extraordinary circumstances according to the Court’s reasoning
As already noted, “extraordinary circumstances” within the meaning of Article 5(3) of Regulation No 261/2004 must be deemed those events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control, both conditions being cumulative.
Going back to the case at hand, concerning the first condition, the Court outlined that the presence of petrol on a runway of an airport, which led to its closure, cannot be regarded as intrinsically linked to the operation of the aircraft and, therefore, “inherent in the normal exercise of the activity of the air carrier concerned”. Basically, the air carrier cannot be held liable for fuel spillage occurring on the same runway and caused by a different aircraft.
Concerning the second condition, the Court outlined that fuel spillage is a circumstance beyond the effective control of the air carrier concerned and that the maintenance of the runways is in no way within its competence. The decision of the competent airport authorities to close runways at an airport is, as a matter of fact, binding on air carriers. One can therefore say that the spillage of petrol that caused the closure of the runway and, consequently, the long delay of the flight in question – irrespective of the not infrequent circumstance that the spillage results from an aircraft of the same company being there earlier – can be classified as an “extraordinary circumstance”.
Nevertheless, in order for an air carrier to be exempted from the obligation to compensate passengers for a long delay to their flight, the air carrier must prove that it has taken all the measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal. Therefore, the air carrier must prove that the delay was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken.
Well, in the judgment at issue, the Court adopted a quite flexible concept of “measures appropriate to the situation”, giving the national court the task of assessing whether, in the case at hand, it could actually be said that the air carrier took all the measures appropriate to the situation, though expressly excluding any measures falling within the competence of third parties such as airport managers or air traffic controllers.
As noted, the decision to close an airport runway depends on airport authorities, and an air carrier is required to comply with it. Therefore, irrespective of such circumstance, the air carrier must in any event demonstrate – as regards the activities under its control – that it has not failed to do anything within its competence.
The above leads to the conclusion that, in general terms, fuel spillage can be regarded as an extraordinary circumstance, on condition that rigorous proof is provided that the air carrier took all precautionary and diligent measures applicable in the circumstances.
But what if the fuel spills out of an aircraft operated by the same airline, which, subsequently, with another aircraft, suffers a long delay as a result of the closure of the runway due to fuel spillage from the first aircraft? In such case, the relieving proof of having taken all the appropriate measures can actually become very complex, since, as is known and as the Court itself has pointed out , any technical problems which come to light during maintenance of an aircraft or on account of failure to carry out such maintenance (including fuel spillage) cannot amount to extraordinary circumstances.
The circumstance that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken all reasonable measures and, therefore, to relieve that carrier of its obligation to pay compensation .
Different is the case when fuel spillage is directly ascribable to external causes lying outside the responsibility of the carrier (e.g. a hidden manufacturing defect).
Therefore, on the basis of the above reconstruction, it follows that air carrier responsible for fuel spillage can hardly invoke the relieving proof in its favour in the event of a long delay of another aircraft operated by it caused by the closure of the runway as a result of fuel spilling out of another aircraft operated by it. This can be said unless the competent authorities’ decision to close the runway is regarded as a supervening event interrupting the causal link.
All that remains is, therefore, to give the Court of Justice a new opportunity to expressly rule, once and for all, on the specific case where fuel spillage is ascribable to another aircraft of the same airline that is liable for compensation for long delay.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Filippo Di Peio.
 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91
 Case C-549/07, Wallentin-Hermann, ECLI:EU:C:2008:771, paragraph 25
 Case C-549/07, Wallentin-Hermann, ECLI:EU:C:2008:771, paragraph 43