Volume 36 (2011) / Issue 1
On December 2008, the European Court of Justice (ECJ) in its preliminary ruling in Wallentin-Hermann v. Alitatlia (Case No. C-549/07) tried to give more guidance on whether a technical defect can be regarded as an ‘extraordinary circumstance’ in the sense of EU Regulation 261/2004. For this, the Court came up with a further specification of this doctrine, namely that in order to make a technical defect an extraordinary circumstance, two requirements must have been fulfilled. First, the event must not be inherent to the normal activity of the air carrier, and second, the event must be beyond the actual control of the air carrier on account of its nature or origin. For courts and enforcement bodies, it seems to be tempting to consider nearly every event that creates an aircraft on ground (AOG) situation as inherent to the normal activity of an air carrier. Whether such event comprises bird strike, collision, or instant failure of components is not relevant as long as you argue that such events are inherent to the normal activity. This article intends to put the Wallentin-Hermann v. Alitalia doctrine in perspective by comparing its take on technical defects with how technical defects are seen in the field of airworthiness and flight safety.
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