Originally Posted by
NickB
This is asking the wrong question.
The test to determine the right to compensation is twofold:
1) is it an extraordinary circumstance AND
2) has the airline done anything in its power to avoid the delay or cancellation?
Just because the airline shows that 2) is satisfied, it does not follow that 1) is satisfied too. The ECJ has made it very clear (in Wallentin-Hermann, in particular) that these constitute two distinct requirements that have both to be satisfied for the airline to be exempted from the duty to pay compensation. The new theory is one that borrows some of the language used in Wallentin-Hermann but very selectively. The examples of types of technical requirements that constitute ext circs used by the ECJ are, imo, significant: they use the example of technical problems as a consequence of sabotage by terrorist or discovery of new flaws by the manufacturer of the kind that leads to a notice being issued by the manufacturer to users of the aircraft (think: the kind of issues that grounded the QF A380s or the issue of the batteries in the Dreamliners).
The kind of run-of-the-mill technical defects are of a different kind and are too ordinary to constitute "extraordinary circumstances". They are part and parcel of the day-to-day hiccups that are likely to happen when you run an airline and are part of the normal risk that the carrier can be expected to bear in the normal course of business. As such, they are not "extraordinary" circumstances regardless of whether the airline can prevent them or not.
You are absolutely right in legal terms. So it hinges on the definition of "extraordinarY circumstance.
Unfortunately the word "extraordinary" does not have a clear definition. I found somewhere; " Beyond what is ordinary or usual". That does not help much as one could say that s cancelled fligh or long delays are by themselves unusual. As long as there is no detailed list of extraordinary circumstances, one can argue forever. The ECJ only provided a couple of examples, but it is clear that they had in mind an extreme version of "extraordinary circumstances". The NEB made a detailed list that is going the other extreme more or less stating that anything unexpected is basically an extraordinary cirumstance:
http://ec.europa.eu/transport/themes...ances-list.pdf
The EC 2013 proposal to revise its Regulation does provide a few examples. But their example of non-extroardinary circumstance as "technical problems identified during routine aircraft maintenance" is rather limited.
Until the regulation is amended to reflect that list, or another, the courts will have leeway to interpret. The procedural situation differs across countries, but the joint paper of NEB presents a strong position and I expect courts in most countries to follow NEB interpretation. Sure, the ECJ could rule against the NEB list, but I would rather expect them to wait for an ameded regulation.
I am not a lawyer so my terminology is probably inappropriate. And you have a better view of the EC process than I do, so I could have misread the situation.