Pešková ruling: bird strike is extraordinary, but not a blank cheque

The Marcela Pešková and Jiří Peška v Travel Service a.s. ruling delivered by the CJEU on 4 May 2017 (Case C-315/15) is one of the rare decisions where the Court recognises a genuine extraordinary circumstance. But the ruling simultaneously imposes a high mitigation standard, making it a powerful contestation tool for passengers.

The facts: a Burgas-Ostrava flight interrupted by a bird

On 10 August 2013, Mr and Mrs Peška board a Travel Service flight from Burgas (Bulgaria) to Ostrava (Czech Republic). During landing in Brno (intermediate stop), the aircraft collides with a bird. An inspection is carried out. The flight finally arrives in Ostrava with more than 5 hours' delay.

Travel Service refuses compensation under EC 261 invoking extraordinary circumstances. Passengers contest before Czech courts, which refer to the CJEU.

The decision: yes, bird strikes are extraordinary — but with conditions

On 4 May 2017, the Court answers in several clear points.

1. A bird strike is external to the airline

The Court applies the classic test: externality + effective control. A bird strike naturally escapes the airline's control capabilities (paragraph 24). It's a natural event, and the prevention of bird collisions is shared between the airline and airport services.

The Court concludes at paragraph 26:

"A collision between an aircraft and a bird, as well as any damage caused by such a collision [...] must be classified as 'extraordinary circumstances'."

2. But the inspection itself isn't automatically extraordinary

Crucial point often overlooked: if the strike itself is extraordinary, the inspection delay may fall under the carrier's normal activity if:

• The inspection is performed by a non-certified expert then confirmed later by a certified one,
• The inspection time is abnormally long due to lack of available staff,
• No replacement aircraft is made available quickly.

At paragraph 35, the Court specifies: the airline must prove it implemented all reasonable measures to limit the delay. Without that, it remains liable.

3. Cumulation of causes

At paragraph 47, the Court adds: if the delay results from a combination (bird strike + other cause inherent to the airline), the share due to the bird strike must be deducted from the global delay to assess whether the 3-hour threshold is still reached. If after deduction the delay attributable to the airline is still ≥ 3h, compensation remains due.

Subsequent rulings: confirmation and extension

The Pešková logic was extended to other runway events:

• Germanwings v Pauels (2019, C-501/17): a nail or screw on the runway damaging a tyre is extraordinary, same conditions.
• Moens v Ryanair (2019, C-159/18): fuel spilled on the runway by another aircraft is extraordinary.
• Niki Luftfahrt (2019): unexpected airport closure for safety reasons is extraordinary.

But in all these cases, the "reasonable measures" test remains central. The airline that doesn't prove its diligence loses the exception.

How to contest a refusal invoking Pešková

If an airline invokes a bird strike to refuse compensation, you have several angles of attack:

Angle 1: inspection duration

A post-bird-strike inspection normally takes 30 minutes to 2 hours. If your delay is 5, 6 or 8 hours and the inspection should have taken only 1 hour, ask the airline to precisely justify the elapsed time. The unjustified portion must be deducted and may put you back under 3h or keep you above.

Angle 2: absence of replacement aircraft

A large airline is expected to have backup aircraft at its main hubs. If it didn't make a replacement aircraft available quickly, ask for the justifications of unavailability.

Angle 3: cumulation of causes

If the flight combined a bird strike AND another event (crew delay, ground breakdown, local weather), ask the airline to quantify the share of each cause. If the non-bird-strike share is ≥ 3h, compensation is due.

Sample formal letter

"Under the Pešková v Travel Service ruling (CJEU, C-315/15) and the Germanwings v Pauels ruling (C-501/17), you must precisely prove:
(1) the inspection duration strictly attributable to the extraordinary event,
(2) the reasonable measures implemented to limit the delay (replacement aircraft, standby crew, reorganisation),
(3) the exact share of delay attributable to the extraordinary event, to be deducted from the total delay.
Without such proof, the compensation under Article 7 of Regulation (EC) 261/2004 remains due."

Summary

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Related articles

• Full CJEU case law on Regulation EC 261
• Wallentin-Hermann ruling: technical failure
• Krüsemann ruling: internal strike
• Extraordinary circumstances overview