Closed airport and closed airspace: ash clouds, power cuts, refuelling systems, and drones

Where a flight is cancelled, Regulation (EC) No 261/2004 may give a right to financial compensation, and the Court of Justice of the EU has held that passengers whose flights are delayed may be treated as passengers whose flights are cancelled for the purposes of the right to compensation under Article 7, where they suffer a loss of time of three hours or more in reaching their final destination.

The exception is in Article 5(3): the operating air carrier is not obliged to pay if it can prove that the disruption was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Recital 14 of the Regulation mentions, among other things, meteorological conditions incompatible with the operation of the flight concerned, security risks and unexpected flight safety shortcomings as examples of such circumstances. The burden of proof lies with the carrier.

The first limb is that the event is an extraordinary circumstance at all. Here the Court applies two conditions which must both be met. They are cumulative: the event must, by its nature or origin, fall outside the normal exercise of the carrier's activity, and it must be beyond the carrier's actual control. In the case concerning petrol on the runway at Treviso both were met: the petrol did not come from the carrier's own aircraft, the maintenance of the runways is in no way within the carrier's competence, and the carrier had to comply with the airport authority's decision to close the runway. The Court concluded that the presence of petrol on the runway, which led to its closure, was an extraordinary circumstance which could not have been avoided even if all reasonable measures had been taken. The operative part is conditional, however: it applies to petrol which does not originate from an aircraft of the carrier that operated the flight.

The second limb is that the circumstance could not have been avoided even if all reasonable measures had been taken. The carrier must also have adopted measures appropriate to the situation to avoid the consequences, and the part of the delay that is not caused by the closure cannot be blamed on it.

The eruption of Eyjafjallajökull began on 20 March 2010 and entered an explosive phase on 14 April. The following day the airspace over a number of Member States was closed because of the ash. A passenger whose Faro–Dublin flight was cancelled on 17 April claimed reimbursement of her expenses for meals, accommodation and transport until she was able to return home on 24 April.

The judgment of 31 January 2013 in Case C‑12/11 is still the starting point. The closure of airspace as a result of the eruption constituted extraordinary circumstances, but those circumstances did not release the air carrier from its obligation under Articles 5(1)(b) and 9 to provide care.

The Court expressly rejected the idea of a separate category of ‘particularly extraordinary’ events beyond the extraordinary circumstances referred to in Article 5(3). Nor is any limitation, whether temporal or monetary, of the obligation to provide care apparent from the wording of the Regulation. Reimbursement for care the carrier failed to arrange is, on the other hand, to be assessed by reference to what proved necessary, appropriate and reasonable in the situation.

Keep the two apart: a valid reason for not paying the fixed compensation is not a valid reason for leaving passengers without meals or a hotel.