The European Court of Justice has recently ruled in the Case 411/23 D. SA vs P.SA the fact that the detection of a hidden design defect in an aircraft´s engine might be considered as an ´´extraordinary circumstance´´, even when the air carrier had been informed in advance of its existence.

• Main dispute and questions referred to preliminary ruling

The request has been made in proceedings between D. S.A.(“D”), the assignee of the rights of J.D., and P. S.A. (“P”) regarding its refusal to pay compensation to the latter, a passenger whose flight was subject to a long delay in arrival.

On 2 July 2018, J.D. entered into a contract of air carriage with P concerning a flight from Cracow to Chicago. Previously, the manufacturer of the engine fitted to the aircraft scheduled to operate that flight disclosed to the latter the existence of a hidden design defect imposing a number of restrictions on the use of those aircraft.

After that date, P contacted various carriers on several occasions with a view to chartering additional aircraft to pre-empt the possibility of an engine design defect being discovered in any of the aircraft in its fleet. Four days before the scheduled flight, an engine malfunction occurred during a flight operated by the aircraft supposed to carry J.D. on the flight he had booked.

After consulting the engine manufacturer, P took out of service, disassembled and sent to a maintenance centre the engine concerned. Since there were no immediately available spare engines due to a global engine shortage, however, it was not possible to replace the defective one until 5 July 2018, so that the aircraft was brought back into service on 7 July 2018.

Thus, P operated the flight scheduled for 2 July 2018 with a replacement aircraft which arrived more than three hours after the originally scheduled time. Following P’s refusal to pay compensation according to Regulation No 261/2004, D brought an action before the District Court of Warsaw (Sąd Rejonowy dla m. st. Warszawy w Warszawie), which however refused it.

D decided to bring an appeal before the Regional Court of Warsaw (Sąd Okręgowy w Warszawie), which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice the following two questions for a preliminary ruling:

• First, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the detection of a hidden defect in the design of the engine of an aircraft which is to operate a flight is covered by the concept of “extraordinary circumstances” within the meaning of that provision, even where the engine manufacturer had informed the air carrier of its existence several months before the flight concerned.
• Secondly, the loading of baggage onto the plane had been slowed down as there had also been an insufficient number of staff of the airport operator responsible for that service, which gave rise to an extra delay of 2 hours and 13 minutes.
• Thirdly, the weather conditions arising after the doors were closed also delayed the flight by 19 minutes.

• Ruling of the European Court of Justice

According to the Court, Article 5.3 of Regulation No 261/2004 does not require air carriers, in a general and indiscriminate manner, to adopt, as part of the “reasonable measures”, a given preventive one, such as having a back-up fleet of aircraft and the corresponding crew on standby, where it has been informed of the existence of an engine design defect revealed by the engine manufacturer, in order to prevent extraordinary circumstances from arising and the consequences thereof.