* AG Rüsselsheim 3 C 717/06: even if a technical defect may be unusual, it doesn‘t constitute extraordinary cirmucstances as it belongs to the air carrier‘s sphere of responsibility.

* AG Köln 118 C 595/05: a technical problem can constitute extraordinary circumstances; however, the air carrier has to produce evidence that the defect was unexpected and unavoidable. A proof of regular maintenance will not suffice.

Opinion of Advocate General Sharpston
Case C‑396/06 Kramme v SAS Scandinavian Airlines


* In order to rely on Article 5(3) 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.