Collective Commentary about the New Package Travel Directive

ARTICLE 21 | SARAH PRAGER 467 extraordinary circumstances”, and this would be consistent with other legislation promulgated by the EU. A parallel can be drawn with Article 5(3) of Regulation (EC) No.261/2004, the Denied Boarding Regulations. It will be recalled that pursuant to this Article, air passengers are to be offered assistance and compensation in the event of cancellation of a flight, unless the cancellation is due to “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. This wording, although not identical to the wording used in the new Package Travel Directive, is sufficiently close that it is overwhelmingly likely that national courts, and indeed the Court of Justice of the European Union, will strive for consistency of interpretation between the Regulation and the Directive. This is of particular interest to practitioners because the CJEU has interpreted the Regulation in a way which many practitioners, particularly in the common law jurisdictions, found surprising. Whilst extraordinary circumstances are not defined within the Regulation itself, the Preamble states that they may occur in the following situations: political instability; meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that effect the operation of an air carrier. The Preamble also states that extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay or the cancellation of one or more flights, even though all reasonable measures had been taken by the air carrier to avoid these occurrences. In Wallentin-Hermann v Alitalia 8 the European Court was asked to consider whether technical problems with an aircraft can constitute “extraordinary circumstances”. The answer was “no”, save in very limited situations: “A technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control ”. Furthermore, the airline could only prove that it had taken “all reasonable measures” to avoid the technical problem if it establishes that: “… even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had 8 Case C-549/07.