Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 185 • Article 14 concerning the remedies of price reduction and compensation for damages; and • Article 21 concerning liability for booking errors. However, the term cannot be regarded completely new as a similar term is used in Reg. (EC) No. 261/2004 concerning Air Passenger Rights 6 and Reg. (EU) No. 1177/2010 concerning Passenger Rights in Sea and Inland Waterway Travel 7 . Both regulations use the phrase “ extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken ”, but do not contain any definition of the term “extraordinary circumstances” 8 . This has led into extensive case law of the CJEU, related to the Air Passenger Rights Regulation. Some of the judgements and Advocate General opinions listed below are of particular interest to this analysis. In case C-396/06 – Kramme v SAS Scandinavian Airlines , Advocate General Sharpston delivered a very thoughtful and comprehensive opinion pointing out that the use of the word “extraordinary” would be redundant if it meant the same as “unavoidable” 9 . In its literal sense, “extraordinary” means outside the ordinary, in a commercial context it denotes events which would not normally arise in the course of the trade 10 . Sharpston therefore concluded that technical problems requiring an aircraft to be taken out of operation can only be considered to constitute extraordinary circumstances under Article 5(3) of Regulation No. 261/2004 if they are neither of a kind typically occurring from time to time on all aircraft and/or a particular aircraft type, nor of a kind known to have affected the aircraft in question before. In case C-549/07 – Wallentin-Herman v Alitalia , the CJEU held that circumstances can only be regarded as “extraordinary” if they relate to an event which is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its 6 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. 7 Regulation (EU) No. 1177/2010 of the European Parliament and of the Council concerning the rights of passengers when travelling by sea and inland waterway. 8 Recital 14 of Reg. (EC) No. 261/2004 only gives some examples of situations in which extraordinary circumstances may occur, such as cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an air carrier. 9 Opinion of Advocate General Sharpston in Case C-396/06, delivered on 27 September 2007, paragraph 48. 10 Opinion of Advocate General Sharpston, as above, paragraph 49.