Advocate General advises European Court: Bird strike is not an extraordinary circumstance

A preliminary question was raised with the European Court to clarify the phenomenon known as ‘Bird strike’. Is a bird strike an extraordinary circumstance or not? Are passengers entitled to compensation when a bird strike causes the delay or cancellation of a flight? 

Advocate General Y. Bot published his conclusion on the matter today. Advocate General Y. Bot answered the questions raised by Marcela Pešková and Jiří Peška against Travel Service A.S. Is a bird strike an extraordinary circumstance or isn’t it?

What is an extraordinary circumstance?

An extraordinary circumstance can be described as an event which could not have been avoided even if all reasonable measures had been taken. Bad weather, strikes and terrorism are examples of extraordinary circumstances.

The issue of bird strikes has been discussed extensively with national courts for quite some time, since airlines have always stated that a bird strike is unexpected and therefore must be considered extraordinary. When a bird strike occurs, airlines are obliged to have the aircraft fully inspected for technical deficiencies. The question is often raised if the bird strike on its own can be considered extraordinary or only in the case this causes damage to the aircraft.

In the case of an extraordinary circumstance airlines are not obliged to pay compensation to the passengers that suffer a flight delay.

Advocate General Y. Bot concludes: “A bird strike is not extraordinary”

The situation of a bird strike is not specifically explained in EC Regulation 261/2004, which has led to divergent rulings from judges when these cases have been presented court. Y. Bot has concluded that a bird strike is not an extraordinary circumstance based on the following:

“A bird strike cannot be considered as an extraordinary incident. The frequency of these types of incidents and the fact that aircraft manufacturers, airports and flights are taking them into account is in my opinion an indication that such an incident must be considered as inherent to the exercise of the activity of an airline”, says Advocate-General Bot.

“The opinion of Advocate General Bot is far reaching but completely in line with the purpose of EC regulation 261/2004, which is to provide a high level of protection to airline passengers. The argumentation of Bot will definitely influence the British jurisprudence. In my view this opinion is in line with previous rulings from the ECJ and any confusion national courts may have concerning bird strikes has now been clarified.” Adeline Noorderhaven, Manager UK at EUclaim.

The opinion of Y. Bot has now been published with the European Court of Justice and a judgment is expected later this year.