EU INSTITUTIONS, GROUP M-3, ACADEMIC YEAR 2022/2023

CASE 2 – 02.05.2018

[This case has been prepared for academic purposes. ALL FACTUAL REFERENCES ARE FICTITIOUS even
if real references to pending cases and some real news are included for ease of reference and
preparation]

FACTS

On 13 February 2022, the pilot of the flight SafeAir 3483 from Athens to Barcelona had an anxiety
attack in his hotel three hours before the flight and was unfit to fly. The co-pilot could fly the aircraft,
but airline regulations require a second pilot. There was no spare pilot qualified on the Airbus 320 in
Athens that day. A crew for the flight back from Athens to Barcelona was only ready the next day, 29
hours later than the scheduled flight.

Once back in Barcelona, one of the passengers, Mr Lopez, claimed compensation for late flight under
Articles 5 and 7 of Regulation No 261/2004. SafeAir was ordered by Tribunal Mercantil in Barcelona in
to pay the compensation claimed by Mr Lopez on the grounds that the anxiety attack of a member of
the crew does not constitute an external event affecting the operating air carrier in question, nor a
technical defect, in so far as it comes within the scope of risks inherent in the activities of an air carrier.

SafeAir appealed the decision to the Audiencia Provincial de Barcelona. According to SafeAir, the
anxiety attack of the pilot, who was a middle-aged man and had passed compulsory periodic medical
examinations without any difficulty, was completely unforeseeable and surprising to everyone around
him. In addition, it had taken all measures that could reasonably be required to avoid this type of
damage and that it had been impossible for SafeAir to take such measures in the circumstances. The
court hears the arguments but had doubts whether this situation falls within the scope of the
Regulation, and the interpretation of the relevant provisions of the Regulation. Moreover, the
Barcelona court is not sure on how to apply the Montreal Convention for the Unification of Certain
Rules for International Carriage by Air (1999), signed by the EC, Greece and Spain. The Barcelona court
makes a reference to the ECJ for a preliminary ruling.

In similar time frame, flight SafeAir 321 from Paris to Stuttgart was cancelled due to strange defect in
the engine which had been discovered the day before during a check. SafeAir was informed of the
defect during the night preceding that flight but could not repair the plain in time for the flight
(necessitated the dispatch of spare parts and engineers). A passenger, Mme Pompei, requests 250
euros refund and 50 euros costs as compensation. The Paris First Instance Tribunal grants her
compensation, but SafeAir appeals, arguing that this defect was “extraordinary circumstances’
provided for in Article 5(3) of Regulation No 261/2004 which exempt from the obligation to pay
compensation. In the appeal case, the French appeal court has doubts about the interpretation and
application of “extraordinary circumstances” in the Regulation and under the Montreal Convention
and what would consist in “reasonable measures” cited in art. 5(3) to avoid the issue. The appeal court
makes a reference to the ECJ for a preliminary ruling.

Given the similarity of references for preliminary ruling, the court joins the two cases as C-XYZ/23.

Procedural decisions of the ECJ as regards case C-XYZ/23

The European Commission has asked to intervene in the proceedings since they raise important legal
issues related to the Commission’s agenda on air passenger rights.

The date of the public hearing has been set on 2 May 2023. Following such public hearing the ECJ will
issue a judgment providing useful guidance to national courts on the interpretation of the relevant EU
provisions

GUIDELINES FOR THE PRACTICAL CASE

Assignment of positions:
Groups 1 and 6: Mrs Lopez
Groups 2 and 7: Mrs Pompei
Groups 3 and 8: SafeAir
Groups 4 and 9: Commission
Groups 5 and 10: ECJ

Guidelines for the public hearing:

The public hearing will be held on 5 May 2023 from 8am to 10am. Punctuality is of extreme importance
and will be subject to evaluation.
Groups 6 to 10 shall have the simulated public hearing from 8am to 9am.
Groups 1 to 5 shall have the simulated public hearing from 9am to 10am.

All parties will have 7-8 minutes to present their oral pleas, plus an additional round for
counterarguments of 2-3 minutes.

The Court will have 5 minutes for deliberation and 10 minutes to issue an oral judgment.

EVERYONE in the group must attend. Non-attendance he day of the oral hearing entails 0 points for
the activity. As a general rule, all members of the group get the same qualification. Nevertheless,
substantial differences in the workload and/or the quality of interventions between the members of
the group may entail different qualifications.

Each member of each group MUST send the group’s schematic arguments (max. 2 pages) in the
campus activity on Wed 3rd May, 10 pm.

Suggested materials:
- Legislation: those referenced in the case.

- Case-law (some suggested examples, which may be completed with further references
during the hearing):

o C-549/07
o C-28/20
o Joined Cases C-581/10 and C-629/10
o Joined Cases C‑156/22 to C‑158/22

Other
- https://europa.eu/youreurope/citizens/travel/passenger-rights/air/index_en.htm
- https://www.seguridadaerea.gob.es/en/ambitos/derechos-de-los-pasajeros/retrasos