Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 187 judgement in case C-159/18 Moens v Ryanair 18 , the same applies to fuel on the runway leading to a closure of the runway, as long as the fuel did not stem from an aircraft of the operating carrier of the flight concerned. While the decisions of the CJEU appear rather casuistic and not always compelling, the general conclusions from the CJEU case law quoted above are that “extraordinary” and “unavoidable” are two separate and cumulative requirements. As such, the mere fact that a certain event could not have been avoided, even if all reasonable measures had been taken, cannot itself constitute extraordinary circumstances if said event was inherent in the normal exercise of the activity of the air carrier. However, in the PTD 2015, the European legislator chose a definition which is quite different from the CJEU’s interpretation of “extraordinary circumstances” as quoted above. According to Article 3 para 12 PTD 2015, “ unavoidable and extraordinary circumstances ” means “ a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken ”. Thus, the definition only consists of these two elements: • a situation beyond the control of the party who invokes such a situation; and • the consequences of which could not have been avoided, even if all reasonable measures had been taken. Both elements, however, only relate to “unavoidability” - firstly of the situation itself (“beyond the control”) and secondly of the consequences thereof. But there is no reference made whatsoever in the definition to any requirement of the situation being “extraordinary”. This leads to the unique situation where the word “extraordinary” is part of the term, without being part of the definition! Although the element “ unusual ” was part of the definition of “force majeure” in the PTD 1990 19 , there is no equivalent in the definition of the new term “ unavoidable and extraordinary circumstances ”. Applying the concept of a legal definition as identified above, and therefore assuming that anything which is covered by the definition is covered by the 18 CJEU Judgement of 26 June 2019 in Case C-159/18. 19 Article 4 para 6 lit a (ii).