Collective Commentary about the New Package Travel Directive

468 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight”. In the English jurisdiction, the Court of Appeal followed and sought to explain the decision of the CJEU in the case of Jet2.com Limited v Huzar 9 , in which it was held that the focus must be on the course of the events giving rise to the cancellation, and not on its resolution. It was therefore irrelevant whether the technical defect was unforeseeable or whether it could have been identified or remedied by prior maintenance, since technical defects are, by their very nature, inherent in the activity of operating an airline. The example given by the European Court in its judgment of a situation where there may be extraordinary circumstances is where “ it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety” . What will not be sufficient, however, is the mere fact that the particular defect or problem which has arisen is very rarely encountered 10 or possibly even unique. In Van der Lans v KLM 11 a component of the aircraft had failed prematurely. The CJEU held that this did not comprise an extraordinary circumstance within the meaning of the Regulation, since not only was the failure “intrinsically linked to the very complex system of the aircraft”, but the defect only affected one aircraft, and there was no risk as regards the fleet as a whole. The lesson to be drawn from these authorities is a discouraging one from a trader’s point of view: the defence contained within Article 5(3) of the Regulation has been interpreted very narrowly, so that it will hardly ever be of relevance. It is to be expected that the defence afforded by Article 21 of the new Directive will be similarly interpreted, if not at national level, at least on the part of the CJEU. Since, as indicated above, the purpose of the Directive is consumer protection, this method of interpretation is defensible as being consistent with the intentions of the Commission and with European jurisprudence generally. The overall effect of Article 21 of the new Directive is therefore to the benefit of consumers and to the detriment of travel agents, although it must surely benefit all parties involved in the provision of holidays for there to be clarity as 9 [2014] 4 All ER 581. 10 This is the ratio of a German case decided in the Darmstadt Regional Court on 20 th July 2011 (7 S 46/11). 11 Case C-257/14.