Last week, on 27 February, AG Pikamäe issued an opinion in a relatively weird as to facts air travel case - Transportes Aéreos Portugueses (C-74/19). A passenger in this case had a flight reservation with TAP airlines (Portuguese airlines) for a journey between Fortaleza (Brazil) and Oslo (Norway) with a connection in Lisbon (Portugal). The first flight has been delayed, as the plane, which was intended to travel between Fortaleza and Lisbon first had to make a trip from Lisbon to Fortaleza. On that journey there was, ahem, a problematic passenger who proceeded to bite (!) and attack other passengers, as well as the crew. Consequently, the flight was diverted to Las Palmas (Spain) to remove the problematic passenger. Due to the delay of that flight, the whole travel schedule of the given passenger was uprooted, and they ended up arriving in Oslo more than 24 hours after the planned arrival time.
Aggressive passenger behaviour may be seen as extraordinary circumstances
AG Pikamäe draws attention to the importance of a safe flight for EU legislator, which is both mentioned in Recital 14 of Regulation 261/2004 (unexpected flight safety shortcoming are an example of an extraordinary circumstance) and in its Article 2(j) pursuant to which denied boarding may be justified by safety concerns (paras. 30-31). Whilst aggressive behaviour of passengers has not been enumerated in any provision as a cause for safety concerns, it could fall within the scope of general safety notions of this Regulation. Moreover, Regulation 2015/2018 introduces a list of occurrences that need to be reported as they may cause a serious risk in civil aviation, amongst others in Annex I point 6(2) it mentions 'difficulty in controlling intoxicated, violent or unruly passengers' (para. 33). Regulation 2018/1139 further obliges a captain of an airplane to take any measures to minimise the consequences on the flight of a disruptive passenger's behaviour (Annex 5 point 3(g)) (para. 34). Therefore, EU legislation has previously considered aggressive consumer behaviour as a safety risk. The AG mentions also other air safety rules, which all indicate that as aggressive consumer behaviour may be considered a serious risk to air safety, it could be considered an extraordinary circumstance in the meaning of Art. 5(3) Regulation 261/2004. After all, educating or punishing of violently acting passengers should not be seen as falling within the scope of a normal activity of air carriers (paras. 41-46). Further, the air carrier has a limited option, if any, to control the behaviour of passengers on the plane (paras. 49-50). Still, AG Pikamäe indicates that if the crew was aware of the problems with the passenger's behaviour before the flight had started, then possibly the air carrier could not claim the need to divert the plane and remove the aggressive passenger as an extraordinary circumstance (para. 51). Instead, they could have denied boarding to the aggressively acting passenger.
AG Pikamäe further emphasises that already on the basis of previous case law (Peškova and Peška case as well as Germanwings case), it was apparent that the extraordinary circumstance does not have to pertain to the delayed/cancelled flight of a given passenger (para. 57 and further). A causal link between the extraordinary circumstance and the delayed/cancelled flight is sufficient (para. 59).
Does this mean that the passenger in the given case may not claim compensation? Not all is yet lost. Namely, the air carrier needs to take all reasonable measures to ensure that the extraordinary circumstance does not impact the passenger's flight (Art. 5(3) Regulation 261/2004). Here, it could perhaps not be required from TAP that they have additional planes on hold in Brazil to step in, when the original aircraft is delayed. However, AG Pikamäe draws attention to the fact that the longer the delay in reaching the final destination, the more flexibility seems to be there for the air carrier in trying to mitigate the consequences of an extraordinary circumstance, e.g. by increasing the speed of the aircraft, re-routing the passenger either within TAP or allied air carriers (here, Star Alliance) (para. 73).
