Collective Commentary about the New Package Travel Directive

ARTICLE 14 | MICHAEL WUKOSCHITZ 353 circumstances which could not have been avoided even if all reasonable measures had been taken ” 35 . Reg. (EC) No. 261/2004 doesn’t provide a definition of the term which therefore has become subject to extensive case law of the CJEU 36 . In these judgements, the CJEU repeatedly emphasized that “extraordinary” and “unavoidable” are two separate and cumulative requirements. To release the air carrier from compensation, an event therefore has to be • beyond the actual control of the carrier; and • not inherent in the normal exercise of the activity of the air carrier concerned. The Directive, however, defines the term “ unavoidable and extraordinary circumstances ” as meaning “ 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 ” 37 . This definition doesn’t make the least reference to a requirement of the situation to be “extraordinary” or “not inherent in the normal exercise of the activity of the organiser concerned”. It is unclear whether such requirement has to be added to the definition or whether the concept of “ unavoidable and extraordinary circumstances ” under the Directive in this regard is distinct from the concept of “extraordinary circumstances” under the Air Passenger Rights Regulation 38 . If the correct interpretation was that any situation covered by the wording of the definition in Article 3 (12) constituted “ unavoidable and extraordinary circumstances ”, the liability under the new Directive wouldn’t be much different from the previous legal situation and remain close to a fault liability 39 . If, however, the restrictive case law of the CJEU in air passenger rights cases was applied it would become much harder for an organiser to rely on the exemption of “ unavoidable and extraordinary circumstances ”. 35 Article 5 (3) of 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. 36 See case C-549/07 – Wallentin-Herman v Alitalia ; joint cases C-402/07 – Sturgeon v Condor and C-432/07 Böck ea v Air France ; C-394/14 – Siewert v Condor ; case C-315/15 – Pešková ea v Travel Service ; joint cases C-195/17, C-197/17 – C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 – C-286/17 and C-290/17 – C-292/17 – Krüsemann ea v TUIFly; C-159/18 – Moens v Ryanair. 37 Article 3 (12). 38 For a comprehensive analysis of the issue see Wukoschitz , “Extraordinary” Legislative Shortcomings in the New PTD in Franceschelli/Morandi/Torres , The New Package Travel Directive [2017]. 39 This approach seems to be favoured by Grant/Mason/Bunce , Holiday Law 6 , 5-013 and 5-016.