On 7 July 2022, The Court of Justice has ruled in Case C‑308/21, on a preliminary ruling concerning the interpretation of article 5, paragraph 3, of Regulation (EC) No 261/2004 of the European Parliament and of the Council. 

The request for a preliminary ruling has been made in proceedings before the Tribunal Judicial da Comarca dos Açores (District Court, Azores – Civil Chamber, Ponta Delgada – Court No 4, Portugal, the “referring court”) between KU, OP and GC (the “passengers”) and SATA International – Azores Airlines SA (“Sata International”) concerning the right of the passengers to compensation. In particular, the dispute was caused by a generalised failure of the refuelling system at an airport which led to flight delays of more than three hours or cancellation of flights. 

The referring court considered necessary, to rule on the dispute, to first determine whether the generalised failure of the refuelling system constituted an “extraordinary circumstance”  within the meaning of Article 5(3) of Regulation No 261/2004, or if it had to be regarded as an event inherent in the normal exercise of the activity of SATA International. Should the failure qualify as an extraordinary circumstance, SATA International would not be obliged to pay a compensation to the passengers according to article 7 of Regulation No 261/2004. Therefore, by its question, the referring court had asked whether article 5, paragraph 3, of Regulation No 261/2004 had to be interpreted as meaning that, where the airport of origin of the flights or aircraft is responsible for managing the aircraft refuelling system, a generalised breakdown in the supply of fuel may be regarded as an extraordinary circumstance within the meaning of that provision.

The Court, recalling its settled case-law, has clarified that, in order to qualify as an extraordinary circumstance, an event must satisfy two cumulative conditions, i.e. be, by its nature or origin, not inherent in the normal exercise of the activity of the air carrier concerned, and be beyond the carrier’s actual control. In this regard, the Court found that the generalised failure at hand satisfied both of the cumulative conditions, as it was not related to the ordinary activities of SATA International, and it was beyond the control of the latter given that the refuelling system was managed by the airport.  

Therefore, the Court ruled that article 5, paragraph 3, of Regulation No 261/2004 must be interpreted as meaning that where the airport of origin of the flights or aircraft concerned is responsible for the aircraft refuelling system, a generalised breakdown in the supply of fuel can be regarded as an “extraordinary circumstance” within the meaning of that provision.

Andrea Palumbo