Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 27 September 2007 (1)

Case C-396/06

Eivind F. Kramme

v

SAS Scandinavian Airlines Danmark A/S

(Air transport Cancellation of flight Compensation for passengers Extraordinary circumstances Technical problems Reasonable measures Causation Evidence)

1. The present reference from the à'stre Landsret (Eastern Regional Court) in Copenhagen, Denmark, essentially asks the Court whether Article 5(3) of Regulation (EC) No 261/2004 (2) enables an airline to avoid compensating passengers for cancelling their flight in circumstances where technical problems have required the aircraft allocated to the flight to be taken out of operation.
2. The regulation provides for air carriers to compensate passengers for the trouble and inconvenience caused by flight cancellations. Article 5(3) exonerates a carrier from paying compensation if it can prove that the cancellation was caused by extraordinary circumstances which could not reasonably have been avoided. The questions referred thus invite the Court, for the first time, to interpret that provision. (3)




Relevant legislation

The Montreal Convention (4)

3. The Montreal Convention, to which the Community is a signatory, aims to modernise and consolidate the Warsaw Convention. (5) It recognises the need to protect the interests of consumers in international air travel and to provide equitable, restitutionary compensation. (6)
4. The convention does not specifically cover flight cancellations. However, under Article 19 an air carrier is liable for damage caused by flight delays unless it 'proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures'.
5. Article 29 limits damages in all actions for, inter alia, the carriage of passengers to the amounts laid down in the convention and specifies that punitive, exemplary or any other non-compensatory damages should not be recoverable.




Regulation No 261/2004

6. Regulation No 261/2004 increases the protection available to air passengers in the Community. It repeals Regulation (EEC) No 295/91, (7) whose scope was limited to providing, for scheduled flights only, reimbursement or re-routing, free services and minimum levels of compensation for passengers denied boarding. The new regulation covers all commercial flights and addresses flight cancellations and delays in addition to boarding refusals. It provides for compensation for passengers not only when they are denied boarding, but also when their flight is cancelled.
7. The preamble to Regulation No 261/2004 explains that, while the repealed regulation offered basic protection, the number of passengers suffering serious trouble and inconvenience from being denied boarding, as well as from cancellations and long delays, remains too high. The Community should therefore raise the standards of protection to a high level and strengthen passengers' rights, taking into account the requirements of consumer protection in general. (8)
8. Recital 12 addresses cancellations. Trouble and inconvenience to passengers should be reduced by inducing air carriers to inform them of the cancellations beforehand and offer them reasonable re-routing. Otherwise compensation should be paid, except in extraordinary circumstances that could not reasonably have been avoided.
9. Recital 14 elaborates on the term 'extraordinary circumstances':

'As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.'

10. Recital 15 gives, as a further example of an extraordinary circumstance, an air traffic management decision regarding a particular aircraft on a particular day which gives rise to a long delay or flight cancellations.
11. Article 1 of Regulation No 261/2004 explains that the regulation establishes minimum rights for passengers when, inter alia, their flight is cancelled.
12. Having defined 'cancellation' in Article 2, the regulation in Article 5 sets out the regime for flight cancellations. Under Article 5(1)(a), passengers concerned are to be offered a choice of re-routing or reimbursement, and under Article 5(1)(b), appropriate free services.
13. According to Article 5(1)(c), such passengers are also entitled to compensation by the operating air carrier in accordance with Article 7, unless they are informed of the cancellation at least two weeks in advance or, if less than two weeks before the scheduled departure time, are offered re-routing on flights departing and arriving within specified time-limits.
14. Article 5(3) provides:

'An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.'

15. Article 7 sets out, inter alia, the amounts of compensation payable, namely EUR 250, EUR 400 or EUR 600 per passenger according to the distance of the flights and whether they were intra-Community flights. The amounts may be reduced by 50% under certain conditions.




Air safety rules

16. Although not directly at issue in the present case, the rules governing air safety and airworthiness in the Community, which have been drawn up by the Joint Aviation Authorities ('JAA') and the European Aviation Safety Agency ('EASA'), are relevant to the questions referred. They are annexed to Community regulations harmonising civil aviation. Regulation (EC) No 1592/2002 (the basic regulation) (9) envisages the adoption of implementing measures by the Commission. One of those is Regulation (EC) No 2042/2003, (10) which incorporates the rules of EASA Parts M (continuing airworthiness) and 145 (maintenance organisation approvals). The JAR OPS 1 (commercial air transportation (aeroplanes)) rules of the JAA are annexed to Regulation (EC) No 1899/2006, (11) which is not one of the implementing regulations envisaged by the basic regulation.




The main proceedings and the reference made

17. On 27 February 2005, SAS Danmark A/S ('SAS'), the defendant in the main proceedings, cancelled its 20.45 flight from Paris to Copenhagen. Mr Kramme, the applicant, was booked on that flight. He spent the night in Paris and returned to Denmark the following day.
18. He subsequently brought proceedings against SAS to claim, for himself and three fellow passengers, the expenses incurred as a result of the cancellation and compensation in accordance with Regulation No 261/2004.
19. SAS refunded the expenses but refused to pay compensation. It claimed that the cancellation was the result of technical problems with the aircraft allocated to the flight, which constituted extraordinary circumstances within the meaning of Article 5(3) of the regulation.
20. The order for reference describes with care the sequence of events leading to the flight cancellation, and additional details emerge from the maintenance logs of the aircraft in question. (12) On 28 January 2005 the aircraft in question underwent a 'B-check', which is carried out after every 275 hours of flying time. On 26 February 2005, the pilot heard unusual noises coming from the nose of the aircraft during a flight from Copenhagen to Helsinki. An inspection in Helsinki failed to identify the source of the noises, which persisted on the return flight to Copenhagen. It appears that on 27 February the plane carried out further flights and received a temporary repair before being withdrawn from operation for detailed checks. According to SAS, no other aircraft was available since, exceptionally, eight of its planes were undergoing checks. Consequently, it cancelled the flight rotation to and from Paris on 27 February, which the withdrawn aircraft was due to perform. It transpired that the noises came from the hatch for the landing wheels. The fastening on the hatch was adjusted and the problem cured.
21. Mr Kramme, who has made no submissions to the Court, claimed before the national court that the Paris-Copenhagen flight was cancelled for commercial reasons and that technical problems do not fall within the scope of Article 5(3) of Regulation No 261/2004.
22. The referring court decided to stay the main proceedings and has referred the following questions to the Court:

'(1) Is there an extraordinary circumstance when an aircraft is taken out of operation due to technical problems, with the result that a flight is cancelled (see Article 5(3) of [Regulation No 261/2004])?

(2) If Question 1 is answered in the affirmative, what reasonable measures for the purposes of the regulation must an air carrier then take to avoid flight cancellations due to technical problems?

(3) If Question 1 is answered in the affirmative, has an air carrier then taken all reasonable measures to avoid cancellation for the purposes of the regulation if it can be established that there were no aircraft available for use for the flight in respect of which an aircraft which was taken out of operation due to technical problems was scheduled to be used?

(4) If Question 1 is answered in the affirmative, is it relevant that the documentation concerning the technical problems relied on by the air carrier originates solely from the air carrier itself?'

23. SAS, France, Greece and the Commission have submitted written observations. SAS, Greece and the Commission made oral submissions at the hearing on 5 July 2007.




Assessment

Preliminary remark

24. In its second and third questions, the referring court appears to have misconstrued the condition in Article 5(3) that the cancellation must be caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
25. First, the airline is not required actually to have taken all reasonable measures, as those questions imply. Rather, it must show that the circumstances could not have been avoided even if it had taken them.
26. Second, the questions imply that it is the cancellation which must be unavoidable. However, it is clear from the syntax of Article 5(3), notably the position of the relative pronoun 'which', that the words 'could not have been avoided' are to be read with 'extraordinary circumstances'. (13) In languages where the verb 'could (not have been)' has a distinct plural form, it is rendered in that form. (14) Moreover, where 'avoided' is inflected, (15) it agrees with 'circumstances' and not with 'cancellation'. (16)
27. The Commission, which follows the referring court's reading of Article 5(3) in that respect, relies on the reference in recital 14 to the Montreal Convention to justify its interpretation. It notes that Article 19 of the convention stipulates that reasonable measures should be taken to avoid the damage (occasioned by a delay).
28. I do not accept that argument. The reference to the Montreal Convention in recital 14 to Regulation No 261/2004 is general in nature. It merely links the two texts, without mentioning any specific provision. That is particularly apparent in the French version of the recital, which begins: 'Tout comme dans le cadre de la convention de Montréal ...' (emphasis added).
29. There are other indications that recital 14 is not intended to incorporate by reference the precise wording of Article 19 of the convention. For example, the latter does not contain the phrase 'extraordinary circumstances'. Moreover, the convention limits liability for damage caused by delays, whereas the regulation does not specifically provide for compensation for delays as such. Finally, unlike recital 14, Article 19 of the convention requires a carrier to prove that it actually took reasonable measures (or that it was impossible for it to do so).
30. I conclude that recital 14 of Regulation No 261/2004 does no more than refer to the general scheme of the Montreal Convention, which places limitations on the scope of airlines' liability. Its wording does not support the interpretation which the referring court and the Commission have placed upon Article 5(3) of the regulation. In any event, a recital cannot derogate from the actual wording of a legislative provision. (17)
31. It is thus necessary to reformulate the questions referred. In order to be helpful to the national court, the answers should address the three elements an airline needs to prove under Article 5(3), namely that the cancellation was (i) caused by (ii) circumstances which could not have been avoided even if all reasonable measures had been taken and (iii) were extraordinary. The national court's first three questions concern those elements and may be examined together. The fourth question deals with evidence and can be answered separately.
32. The three elements under Article 5(3) may be conceptually separate, but they clearly overlap to some extent. For example, the availability of a replacement aircraft, which is one of the issues in the main proceedings, and the time it takes to get such an aircraft ready relate both to causation and reasonable measures which could have been taken.




First, second and third questions

33. The referring court's first three questions essentially ask, when a flight is cancelled following withdrawal of the aircraft allocated to it because of technical problems, (i) what circumstances are to be regarded as having 'caused' the cancellation, (ii) what measures an air carrier could reasonably have taken to avoid those circumstances, and (iii) what circumstances are to be regarded as 'extraordinary' within the meaning of Article 5(3) of Regulation No 261/2004.
34. Before addressing those specific issues, it is important to establish the function of Article 5(3) within Regulation No 261/2004.
35. According to its preamble, the regulation aims to provide air passengers with a high level of protection and to strengthen their rights. It seeks to reduce the trouble and inconvenience caused by cancellations by inducing airlines to give advance notice and to offer re-routing.
36. The right to compensation arises only in certain circumstances. Under Article 5(1)(c), passengers have no such right if they have been informed of a cancellation two weeks or more in advance or, if less than two weeks before departure time, are offered re-routing on flights departing and arriving within specified time-limits. In those cases they are implicitly deemed not to have suffered significant trouble and inconvenience. (18) Otherwise, compensation is payable essentially for non-material damage which is deemed to have resulted from the cancellation. Compensation is therefore primarily linked to such (deemed) damage rather than, as SAS argues in its written observations, to whether the cancellation was commercially motivated. (19)
37. Article 5(3) allows an air carrier in specified circumstances to avoid paying passengers the compensation to which Article 5(1)(c) otherwise entitles them. As a derogation from the right to compensation, it should be interpreted restrictively. Whilst Regulation No 261/2004 aims for a high level of passenger protection, it already limits the circumstances in which the right to compensation arises and the amounts of compensation are not excessive. (20) It therefore seems particularly appropriate to interpret Article 5(3) narrowly.




Causation

38. Some of the examples of extraordinary circumstances given in recital 14 to Regulation No 261/2004 lead, by their nature, directly to the cancellation of one or more flights. Such is the case with political instability, meteorological conditions incompatible with the operation of the flight concerned and strikes that affect the operation of an air carrier.
39. By contrast, withdrawing an aircraft from operation because of a technical problem does not automatically lead to the cancellation of the flight to which the aircraft was allocated. The flight can still go ahead if a replacement aircraft is used.
40. It is for the national court to determine matters such as the length of time it would have taken the airline to provide a replacement in the circumstances of the case. An airline requires a certain amount of time to prepare a reserve plane for flight. It may be necessary to fly the plane from base to the departure airport of the relevant flight. However, arrangements for a replacement can start to be made from the point at which it is clear that the defective plane will have to be taken out of service. Furthermore, it may be possible to delay the flight in question without causing significant knock-on effects.
41. Consequently, whenever a flight is cancelled following withdrawal of the aircraft originally allocated to it, the cancellation is in reality caused by (i) the withdrawal of that aircraft and (ii) the unavailability of a replacement aircraft. In such circumstances, an airline can only rely on Article 5(3) of Regulation No 261/2004 if both (i) and (ii) qualify as extraordinary circumstances.




Reasonable measures

42. The national court will need to determine whether any reasonable measures, if taken, could have avoided either the withdrawal of the original aircraft or the unavailability of a replacement aircraft.
43. As regards the withdrawal of the plane initially allocated to the flight, that involves examining whether any reasonable measures could have prevented, first, the technical problem and, second, the plane's withdrawal from operation once the problem had manifested itself.
44. As to what reasonable measures an airline could have taken to avoid a technical problem, SAS and Greece refer in their written observations to the rules and laws governing maintenance and periodic checks on aircraft. It is clear from the JAA and EASA rules which are now incorporated into Community legislation (21) that aircraft maintenance is highly regulated in the interests of airworthiness and air safety. For example, aircraft must be maintained according to a programme approved by the competent aviation authority and containing details, inter alia, of frequency of maintenance to be carried out. (22)
45. In view of the standards those rules seek to attain, it would seem unreasonable to expect an airline to carry out additional maintenance and checks. Accordingly, I suggest that reasonable measures to avoid technical problems from arising comprise proper and timely compliance with the schedule of maintenance and checks on an aircraft. The national court should determine whether such measures would in fact have prevented the particular problem from arising.
46. Once a problem has arisen, it seems to me that reasonable measures for an airline to take involve trying to diagnose and rectify the problem without withdrawing the aircraft. By that I do not mean that air safety should be threatened or compromised. As SAS pointed out at the hearing, a decision as to whether an aircraft may continue to fly is taken on the basis of very strict air transport regulations. Precisely what measures are reasonable will depend on the circumstances, for example the availability of appropriate maintenance staff at the relevant airport. Having identified those measures, the national court should determine whether they would in fact have avoided the need to withdraw the plane in question from operation for repair.
47. As to avoiding a situation where no replacement aircraft is available, reasonable measures for an airline to take consist in my view of making adequate provision for such contingencies. It is for the national court to decide how many spare aircraft that would require in a particular case, and whether they would need to be part of the airline's own fleet or could be chartered from other companies. (23) While the provision that the airline actually makes is not the issue, the number of aircraft withdrawals to which it has had to respond in the past may help to determine what level of provision would be adequate.




Extraordinary circumstances

48. The condition in Article 5(3) of Regulation No 261/2004 requires not only that the circumstances 'could not have been avoided even if all reasonable measures had been taken' but also that they be 'extraordinary'. I read these as separate and cumulative parts of the definition of the kind of circumstances envisaged. To interpret the second part of the definition as merely an explanation of the first would make the word 'extraordinary' redundant and suggest that it meant the same thing as 'unavoidable'.
49. The regulation does not define the term 'extraordinary circumstances' recital 14 merely provides examples or indicate that it is a term of art. It therefore seems appropriate to understand the word 'extraordinary' in its literal sense of outside the ordinary. In a commercial context, it denotes events which would not normally arise in the course of trade. (24)
50. The travaux préparatoires also support a literal interpretation. In the course of them, 'force majeure' was altered to 'extraordinary circumstances'. According to the Council's statement in the Common Position, that change was made in the interest of legal clarity. (25)
51. In respect, first, of the withdrawal of the original aircraft from operation, recital 14 to Regulation No 261/2004 suggests that technical problems may sometimes qualify as extraordinary circumstances. It is common ground among the parties submitting written observations that such problems may constitute 'unexpected flight safety shortcomings'. They may affect an aircraft's airworthiness, which is an intrinsic part of aviation safety. (26) Even if that were not the case, the words 'in particular' indicate that the list of examples given in recital 14 is non-exhaustive.
52. I therefore consider that technical problems requiring an aircraft to be taken out of operation are not automatically excluded from the concept of 'extraordinary circumstances'.
53. It does not, however, follow that every technical problem falls into that category. Article 5(3) should be interpreted restrictively. Moreover, the fact that recital 14 states that the events listed may constitute such circumstances suggests that the national court must make an assessment on a case-by-case basis.
54. What kinds of technical problem requiring an aircraft to be withdrawn from operation should therefore be considered extraordinary?
55. In its written observations, SAS states that technical problems are inherent in the complex nature of aircraft and the extreme conditions in which they fly. In view of the catastrophic consequences of air accidents, the slightest suspicion of a technical problem must be examined by taking the aircraft out of service. Essentially, SAS submits that any problems that cannot be prevented by general maintenance and routine checks constitute unexpected flight safety shortcomings.
56. The Commission on the other hand considers that whether a technical problem constitutes an extraordinary circumstance depends on its nature, importance and frequency.
57. It seems to me necessary to distinguish between technical problems in general and a particular technical problem.
58. Regular air travellers know that technical problems with aircraft are not infrequent. SAS notes that they are inherent in the nature and operation of aircraft. They must be expected to occur at some point, even if one does not know precisely when. In view of the safety considerations which SAS highlights, the withdrawal of an affected aircraft from operation must be relatively commonplace. (27) The occurrence of such problems in general cannot be considered extraordinary. They are a normal event in the operation of an airline for which financial and other provision can be made. For that reason I do not accept that they would, in general, constitute unexpected flight safety shortcomings.
59. Nor do I think that unexpected timing is sufficient for a particular problem to be extraordinary or to fall into the category of unexpected flight safety shortcomings. The precise moment at which most if not all technical problems appear may well be unpredictable. Rather, what seems to me to be decisive is whether a particular problem is unusual in its nature and frequency. I accept the Commission's argument that a problem of a kind that regularly affects all planes or that has occurred several times on a particular type of plane should not be considered extraordinary. Nor, in my opinion, should a type of problem to which the particular plane in question is known to be prone.
60. It is for the national court to assess whether a particular problem is unusual. The analysis consists of two stages: first, defining the type of underlying problem which arose and, second, determining whether it was unusual for that type of problem to occur on aircraft and/or the particular type of aircraft and/or whether that type of problem was unknown on the aircraft in question.
61. I conclude that technical problems requiring an aircraft to be taken out of operation can be considered to constitute extraordinary circumstances under Article 5(3) of Regulation No 261/2004 if they are neither of a kind typically occurring from time to time on all aircraft and/or a particular aircraft type nor of a kind known to have affected the aircraft in question before. The assessment is, of course, one of fact for the national court.
62. Second, whether the circumstances leading to the unavailability of a replacement aircraft on a particular occasion qualify as extraordinary will depend on the extent to which they could have been foreseen by an air carrier making reasonable provision, in the light of past experience, for the replacement of aircraft withdrawn from operation as a result of technical problems.




Fourth question

63. I understand the national court by its fourth question to be asking whether documents originating solely from the air carrier itself are sufficient to show the existence of a technical problem which is to be classified as an extraordinary circumstance that could not reasonably have been avoided.
64. The question thus phrased has two limbs: first, the admissibility and evidential value of documents originating from the air carrier, and, second, whether they are sufficient to prove that the conditions in Article 5(3) of Regulation No 261/2004 have been met.
65. It is common ground that the documents provide evidence of the existence of technical problems. SAS asserts that they suffice to prove the existence of extraordinary circumstances that could not reasonably have been avoided. The other parties suggest that the national court should also consider other evidence.
66. As to the first limb, Article 5(3) of Regulation No 261/2004 expressly places the burden of proof on the air carrier. However, the regulation does not specify what standard of proof is required or indicate what evidence should be admissible.
67. Consequently, any evidence admissible under the procedural law of the Member States in similar proceedings is in principle admissible. (28) It is equally for the national courts to determine, according to the principles of the national rules of evidence, whether, in the light of all the circumstances, the party bearing the burden of proof has discharged that burden. (29)
68. It would be inconsistent with the division of functions in Article 234 EC references between the Court of Justice and the national courts, whereby the latter is the sole assessor of the facts in a case, (30) for the former to specify, in the absence of any harmonisation in Community legislation, precisely what evidence should be considered and what weight it should be accorded.
69. Accordingly, it is for the national court to assess the admissibility and probative value of the documents and other evidence that the parties place before it in accordance with national law, in the light of all the circumstances, including their content, provenance, purpose, the extent to which they can be verified, and any collaborative or contradictory evidence. (31)
70. However, as the Commission rightly points out, national rules of evidence applicable to actions relating to a breach of Community law must respect the principles of equivalence and effectiveness. (32) A standard of proof that would make it impossible or excessively difficult for the air carrier to establish its case would breach the latter principle.
71. As to the second limb of the question, the maintenance logs produced before the national court seem essentially to concern the existence of a technical problem, measures taken to resolve the problem and the last regular check carried out on the plane in question before the problem emerged. In respect of the last two elements, although Article 5(3) does not require the airline actually to have taken reasonable measures to avoid extraordinary circumstances, any evidence that it in fact did so could support its claim that those circumstances were unavoidable. However, the documents by themselves address neither the question whether the events they describe may be classified as extraordinary circumstances nor the unavailability of a replacement aircraft. Thus they do not provide of themselves an evidential basis for everything the air carrier will need to prove.
72. I conclude that it is for the national court to assess the admissibility and probative value of the documents and any other evidence supplied by the air carrier according to national rules of evidence, provided that the application of those rules respects the principles of equivalence and effectiveness. The national court should also determine whether the evidence is sufficient to prove that the conditions in Article 5(3) of Regulation No 261/2004 have been met.




Conclusion

73. Accordingly, I suggest that the à'stre Landsret's questions, as reformulated, should be answered as follows:




First, second and third questions

In order for an air carrier to rely on Article 5(3) of Regulation No 261/2004 so as to avoid paying compensation following the withdrawal of an aircraft from operation because of technical problems, both that withdrawal and the unavailability of a replacement aircraft must be caused by circumstances which:

could not have been avoided even if all reasonable measures had been taken; such measures comprise, as regards the withdrawal from operation, proper and timely compliance with the schedule of maintenance and checks on the aircraft and, once signs of the technical problem appear, every reasonable step in the circumstances to resolve it without withdrawing the aircraft from operation; as regards the unavailability of a replacement aircraft, they comprise adequate provision for replacements in the light of past experience;

are extraordinary in the normal sense of the word; as regards the withdrawal from operation, such circumstances may include technical problems which are neither of a kind typically occurring from time to time on all aircraft and/or a particular aircraft type nor of a kind known to have affected the aircraft in question before; as regards the unavailability of a replacement aircraft, they comprise circumstances unforeseeable by a carrier making adequate provision for replacements in the light of past experience.




Fourth question

It is for the national court to assess the admissibility and probative value of the documents and any other evidence supplied by the air carrier according to national rules of evidence, provided that the application of those rules respects the principles of equivalence and effectiveness. The national court should also determine whether the evidence is sufficient to prove that the conditions in Article 5(3) of Regulation No 261/2004 have been met.

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1 Original language: English.

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2 Regulation 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 (OJ 2004 L 46, p. 1). The regulation came into force on 17 February 2005.

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3 In Case C-344/04 International Air Transport Association and Others [2006] ECR I-403, the Court was asked to rule on the validity of Articles 5, 6 and 7 of Regulation No 261/2004. It found nothing to affect their validity.

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4 Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, 28 May 1999. The convention came into force, so far as the Community is concerned, on 28 June 2004.

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5 Convention for the Unification of Certain Rules relating to International Carriage by Air, Warsaw, 12 October 1929.

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6 See the second and third recitals of the preamble.

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7 Council Regulation of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport (OJ 1991 L 36, p. 5).

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8 See recitals 1 to 4.

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9 Regulation of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1).

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10 Commission Regulation of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks (OJ 2003 L 315, p. 1).

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11 Regulation of the European Parliament and of the Council of 12 December 2006 amending Council Regulation (EEC) No 3922/91 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation (OJ 2006 L 377, p. 1).

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12 Print-outs from the maintenance logs were produced before the national court and are annexed to SAS's written observations in the present reference.

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13 That syntax is constant in the versions of the regulation in the different languages in which it was adopted.

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14 See, for example, the Dutch, French, German, Italian, Portuguese and Spanish versions.

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15 As in, for example, the French and Portuguese versions.

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16 Article 5(3) thus differs in structure from the notion of force majeure, which is defined in the second paragraph of Article 4(6) of Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59) as 'unusual and unforeseeable circumstances beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided even if all due care had been exercised' (emphasis added). See also, for example, Case C-105/02 Commission v Germany [2006] ECR I-9659, paragraph 89.

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17 See International Air Transport Association and Others, cited in footnote 3, paragraph 76 and the case-law cited there. The Court there recognised a 'certain ambiguity' between recitals 14 and 15 to Regulation No 261/2004 and Articles 5 and 6 thereof in respect of the extent to which extraordinary circumstances release airlines from their obligations.

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18 Even if informed of a cancellation two weeks or more in advance, passengers must still, under Article 5(1)(a), be offered a choice of reimbursement or re-routing.

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19 In the course of the travaux préparatoires to Regulation No 261/2004, the Commission noted in its Communication to the Parliament of 25 March 2003 (SEC(2003) 361 final) that the conditions attached to compensation in Common Position (EC) No 27/2003 of 18 March 2003 (OJ 2003 C 125 E, p. 63) which have been preserved in Article 5(1)(c) of the regulation 'would link compensation more closely to the trouble and inconvenience caused by cancellations'. The link between compensation and (deemed) damage in the regulation accords with the provision of equitable compensation envisaged in the preamble to and Article 29 of the Montreal Convention.

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20 See International Air Transport Association and Others, cited in footnote 3, paragraph 91.

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21 See point 16 above.

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22 M.A. 302 (a) and (d) of Part M, now in Annex I to Regulation No 2042/2003, cited in footnote 10.

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23 At the hearing SAS maintained that the chartering of planes could not be arranged from one day to the next and was appropriate only for longer term needs. By contrast, France states in its written observations that it is common practice to charter planes to avoid cancellations.

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24 See, to that effect, Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 77.

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25 See the Common Position, cited in footnote 19. The Council may have wished to avoid the uncertainty arising from the need the Court has identified to consider the notion of force majeure in the context of the provisions of each act in which it appears. See Case 266/84 Denkavit France [1986] ECR 149, paragraph 27.

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26 As is apparent from Regulation No 1592/2002, cited in footnote 9. That regulation's principal objective is, according to Article 2(1), to establish and maintain a high uniform level of civil aviation safety in Europe. Airworthiness (Article 5) is one of the substantive requirements of the regulation.

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27 At the hearing, SAS quoted a statistic from the International Air Transport Association according to which less than one flight in a thousand is cancelled because of technical problems. At that rate, such cancellations could still be almost a daily occurrence at major airports and often affect the larger carriers.

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28 See Joined Cases C-310/98 and C-406/98 Met-Trans and Sagpol [2000] ECR I-1797, paragraphs 28 to 29.

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29 See, to that effect, Met-Trans and Sagpol, paragraph 30.

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30 See, for example, Case C-13/05 Chacón Navas [2006] ECR I-6467, paragraph 32.

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31 So far as their purpose is concerned, France points out in its observations that under the JAR OPS 1 rules (see point 16 above) airlines must keep a record of all faults and anomalies occurring during flights in order to obtain or retain the airworthiness certificate of the relevant civil aviation authority.

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32 See Case C-228/98 Dounias [2000] ECR I-577, paragraph 69, and Case C-276/01 Steffensen [2003] ECR I-3735, paragraph 60.