CJEU - C 12/11 / Opinion

Key facts of the case:

1. By the present reference for a preliminary ruling, the Court is requested to define the scope of the obligation to provide care for passengers, imposed on air carriers by Articles 5 and 9 of Regulation (EC) No 261/2004. (2)
2. Article 5(1)(b) of Regulation No 261/2004 provides that, where a flight is cancelled, the passengers concerned are to be offered assistance by the operating air carrier in accordance with Article 9 of that regulation. The air carrier is required to meet that obligation even where the cancellation of the flight has been caused by extraordinary circumstances.
3. The background against which the present case has arisen is the eruption of the Eyjafjallajökull volcano which took place in Iceland from March to May 2010 and prompted the closure of airspace, resulting in the cancellation of more than 100 000 flights and affecting almost 10 million air passengers.
4. This case essentially hinges on the question whether an air carrier must be released from its obligation to provide care for passengers where their flights have been cancelled because of the closure of airspace following the eruption of a volcano. In other words, is an event such as the closure of airspace owing to the eruption of the Eyjafjallajökull volcano covered by the notion of ‘extraordinary circumstances’ as used in Regulation No 261/2004, requiring the air carrier to provide care for passengers whose flights have been cancelled, in accordance with Articles 5 and 9 of that regulation, or does it fall within a category of events above and beyond those extraordinary circumstances, thus releasing the carrier from such an obligation?
5. The Dublin Metropolitan District Court (Ireland) also wonders whether the obligation under those provisions to provide care must be limited, in temporal or monetary terms, where the cancellation of the flight is caused by extraordinary circumstances. In the event of a negative answer, that court asks whether those provisions are invalid in so far as they are contrary to the principles of proportionality and non-discrimination, the principle of an ‘equitable balance of interests’ enshrined in the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 9 December 1999, (3) and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union. (4)
6. In the present Opinion, I shall explain why I believe that Articles 5 and 9 of Regulation No 261/2004 must be interpreted as meaning that circumstances such as the closure of airspace owing to the eruption of a volcano constitute extraordinary circumstances for the purposes of that regulation.
7. I shall then show why, in my view, Articles 5 and 9 of Regulation No 261/2004 do not imply any release from or limitation of the obligation to provide care for passengers whose flights have been cancelled owing to extraordinary circumstances and why that finding cannot call into question the validity of those provisions.

• circumstances such as the closure of airspace owing to the eruption of a volcano constitute extraordinary circumstances for the purposes of Regulation No 261/2004;
• the above provisions do not imply any release from or limitation of the obligation to provide care for passengers whose flights have been cancelled owing to extraordinary circumstances. That finding cannot call into question the validity of those provisions.