As we have previously reported (Violent passengers...), the CJEU was asked to consider the impact that an aggressive behaviour of one passenger might have on the performance of the obligations by the air carrier, when it results in a disruption of the flight. Unsurprisingly, the CJEU agreed today in the Transportes Aéreos Portugueses (C-74/19) case with the AG Pikamäe's opinion that such behaviour may entitle the air carrier to claim the occurrence of an extraordinary circumstance pursuant to Regulation 261/2004.
The CJEU emphasised that international air carriage law intends to ensure safety of air travel and that unruly behaviour of passengers may endanger such safety (paras 39-40). Further, dealing with such unruly behaviour cannot be perceived as inherent in the normal exercise of the activity of operating air carriers (para. 41) and it is not under their control, as it is neither foreseeable nor likely to be feasible to be dealt with within limited means that the air crew has on board (para. 43). This means that both conditions for qualifying the unruly behaviour of passengers as an extraordinary circumstance have been fulfilled. This may be different only, following again on AG Pikamäe's opinion, where the air carrier had an opportunity to control this behaviour, either by anticipating it (spotting it before the flight and denying boarding to the passenger) or by not contributing to it (paras 45-47).
Moreover, if the unruly behaviour of the passenger on one flight affects passengers on subsequent flights (e.g. where the first flight was delayed in reaching its destination due to the need to disembark the aggressive passenger at a different airport and, therefore, its subsequent departure did not follow the intended schedule) and there is a direct causal link between these events, then the air carrier may invoke the extraordinary circumstance, which occurred during the first flight, as a reason not to have an obligation to compensate passengers on subsequent flights (paras 53-54).
Up to this point, the judgment was nothing if not expected. The answer to the third question posed to the CJEU is, however, surprising.
Ground-breaking interpretation of Article 5(3) Regulation 261/2004?
Article 5(3) Regulation 261/2004 allows operating air carriers to avoid the payment of the compensation under Article 7 Regulation 261/2004 to passengers of delayed or cancelled flights if there were extraordinary circumstances and the air carrier could not have avoided them even if it took 'all reasonable measures' to do so. Or at least this is how this provision has so far been interpreted. The CJEU has now
decided that Article 5(3) Regulation actually states that the air
carrier is only released of its compensation obligation if there were
extraordinary circumstances that led to the delay or cancellation of the
flight and the air carrier could not have avoided that delay or cancellation.
The CJEU decided that this was indeed the meaning of the provision
without either mentioning the different language versions of the
Regulation (at least its Polish, German and Dutch texts clearly indicate
the link between the need to take all reasonable measures to avoid
extraordinary circumstances (plural) not the cancellation itself (singular)) or its legislative history. What is then the justification for this revolutionary interpretation of the provision? Just the need to ensure a high level of passenger protection (para. 58).
When we read para 57 of the judgment it still reiterates the previously expressed in case law sentiment that the air carrier is not required to take 'reasonable measures' that would not be 'appropriate to the situation'. Instead, the air carrier should use all its resources (staff, finances) without having to make 'intolerable sacrifices'. This was previously related to the air carriers need to avoid occurrance of extraordinary circumstances (see e.g. Eglitis and Ratnieks, para. 27 or Pešková and Peška paras 27-30), which could have also encompassed the need to minimise the risk of the delay, the damage to passengers (e.g. by putting some flexibility in their air schedule between departure/arrival times of aircrafts, which could have allowed for some delays due to extraordinary circumstances occurring). Now, in the following paragraph - 58 - the CJEU draws a link between the air carrier taking all these reasonable measures and providing consumers with rights under Article 8 of the Regulation (right to choose between reimbursement and re-routing), specifically the right to re-routing in a way that would prevent the delay or cancellation. Specifically, the CJEU concludes that if the air carrier does not offer to passengers a re-routing option, which is 'reasonable, satisfactory and timely', which would get passengers to their final destination without a delay, even if it involved seeking for alternative flights from other air carriers, then the air carrier failed in its obligation to take all reasonable measures to avoid a delay or cancellation of the flight, pursuant to Article 5(3) Regulation. And the latter means that the air carrier needs to pay compensation under Article 7 Regulation to these passengers (para. 61).
Aside the lack of justification for the above-mentioned interpretative technique of Article 5(3), we could also question the use of Article 8 here, as the right to choose between reimbursement and re-routing arises when the passenger's flight has been delayed or cancelled, whilst the CJEU uses it here to argue for the need to avoid delay or cancellation.
I think we can safely anticipate the airlines questioning the reasoning of the CJEU in this judgment, as it is not less controversial than the Sturgeon case. The only saving grace for them is that they could still try to argue that e.g. trying to arrange alternative flights on other airlines for passengers of a delayed flight would ask of them 'intolerable sacrifices'. But this sounds like a heavy burden of proof to meet.
