Passenger rights – and the required de-icing of the aircraft before take-off

The need to de-ice an aircraft before take-off is in any case an airport requirement and in periods when winter temperatures are to be expected, not an extraordinary circumstance within the meaning of Article 5 paragraph 3 of the Air Passenger Rights Regulation.

In the case decided here by the Federal Court of Justice, the passenger reached the final destination in Düsseldorf with a delay of more than three hours. According to the case law of the Court of Justice of the European Union, this is equivalent to a cancellation within the meaning of Article 5 paragraph 1 letter c of the Air Passenger Rights Regulation.^.

Contrary to the opinion of the Düsseldorf Regional Court in the appeal court in the present case ^{In such a case, the necessity of deprivation in the case in dispute does not constitute an extraordinary circumstance within the meaning of Article 5(3) of the Air Passenger Rights Regulation.}

According to the established case law of the Court of Justice of the European Union, events which, by their nature or origin, are not part of the normal exercise of the activity of the air carrier concerned and which are not actually within its control are to be regarded as extraordinary within the meaning of Article 5(3) of the Air Passenger Rights Regulation. Whether these conditions are met must be assessed on a case-by-case basis.^.

Contrary to the opinion of the Düsseldorf Regional Court, it is not sufficient for an exceptional circumstance to be assumed that a problem has occurred which has affected more than just a single aircraft.

However, the Düsseldorf Regional Court rightly held that exceptional circumstances may also exist in relation to operations which are in principle part of the normal exercise of an air carrier’s activity, such as refuelling the aircraft or loading baggage, if a problem arises in the process which is due to exceptional circumstances, such as a general failure of the supply system or a general shortage of staff managed by the airport operator.^.

Contrary to the opinion of the Düsseldorf Regional Court, however, it is not sufficient for an extraordinary circumstance to be assumed in such cases that a large number of aircraft are affected by the problem in question. Rather, it is also necessary that it is an external event that cannot be controlled. This term covers events that cannot be controlled by the airline because they are the result of a natural event or the action of a third party, such as another airline or a public or private body, that interfere with flight or airport operations.^.

When interpreting this standard, the delay in the case in dispute is not due to an extraordinary circumstance within the meaning of Article 5(3) of the Air Passenger Rights Regulation.

As the Düsseldorf Regional Court did not fail to recognise, de-icing an aircraft in winter temperatures is fundamentally part of the normal performance of an aviation company’s activities.

De-icing an aircraft before take-off serves to ensure that the aircraft is in a technically sound and safe condition^{Such a phenomenon is certainly not unusual at airports and during periods when winter temperatures are to be expected.}

Contrary to the opinion of the Düsseldorf Regional Court, delays in de-icing do not constitute an extraordinary circumstance if a large number of aircraft are affected and the airline has no influence on the de-icing process.

However, as the Düsseldorf Regional Court has stated in another context, an order as an external event in the above sense can also be considered for events that occur frequently^{However, such events can only be regarded as a natural phenomenon or as an act of a third party which interferes with flight or airport operations if they constitute a circumstance which lies outside the normal exercise of the activity of an air carrier, regardless of how often they may occur. Winter flight conditions are therefore not to be regarded as a natural phenomenon in any event at airports and during periods when such conditions are to be expected.}

In the case decided here, the Düsseldorf Regional Court found that an aircraft that took off from Minneapolis in December does not always have to be de-iced. The need for de-icing depends on the weather and the pilot’s decision.

It follows that the need for de-icing under the circumstances relevant to the dispute is a circumstance that could theoretically have been expected. This does not constitute an extraordinary circumstance within the meaning of Article 5, paragraph 3 of the Air Passenger Rights Regulation.

Therefore, the long delay in arrival that occurred in the case in dispute was not due to an extraordinary circumstance within the meaning of Article 5(3) of the Air Passenger Rights Regulation.

Federal Court of Justice, judgment of 27 August 2024 – X ZR 146/23