This contribution discusses the recent case of Transportes Aereos, where the Court was faced with a question whether turbulent behaviour of a passenger that obstructs flight operation and leads to diverting a plane may constitute an extraordinary circumstance under meaning provided by case-law and Regulation 216/2004. The case adds to a narrow list of exceptions under which air carriers are exempted from their obligation to pay compensation since the unruly behaviour was ruled as an “extraordinary circumstance”. The judgement is helpful in providing a clear understanding of what can amount to “extraordinary circumstances” which are not formally defined in the Regulation. Moreover, supplementary information on “reasonable measures”, which are a condition to the exemption, is also provided by the Court.
The aim of this contribution is to discuss the interpretation found in current case-law and what the recently decided case adds to it. Therefore, the structure of it is as follows. Firstly, a brief description of facts and questions referred to the CJEU will be laid out. Secondly, the regulation, its interpretation and case-law will be examined as to provide background information and up-to-date interpretation. Thirdly, the concept of “extraordinary circumstances” and the significance of the case will be discussed.
The facts and the questions referred to the CJEU
An applicant brought a claim against a Portuguese airline, Transportes Aereos Portugueses (TAP) to pay compensation for almost 24 hours delay. The applicant has booked a flight from Brazil to Norway with a transfer in Portugal. The second part of the flight, from Portugal to Norway, was delayed due to the fact that a previous flight, operated by the same aircraft, had been diverted. The diversion was necessary in order to remove a disobedient passenger from the aircraft. The passenger posed a threat to operation of a flight and other passengers. He bit another passenger and assaulted members of the cabin crew causing the pilot to divert. The air carrier did not send another aircraft to mitigate the delay of the applicant’s flight as the company believed that these actions would not have evaded the delay.
The case was brought before District Court in Lisbon which referred preliminary questions to the CJEU. The questions concerned whether or not such a behaviour constitutes “extraordinary circumstance” mentioned in recital 14 of the Regulation, and whether such a behaviour may exempt the air carrier from its obligation to pay. Moreover, the District Court raised a question of what kind of “reasonable measures” are expected from an air carrier in case of a delay.
Background: The Regulation, case-law and Court’s interpretation
A frequent air traveller, whose flight has been cancelled or delayed at least once, may be familiar with the EU Regulation 216/2004 which ensures protection of air travellers. The Regulation provides, among other things, right to compensation and right to assistance under all three circumstances covered by the Regulation. The right to assistance include meals, accommodation and phone calls. The Regulation was not received enthusiastically by the airlines at the beginning as they have been facing ever-increasing number of claims since the enforcement of the Regulation. Many companies were ignoring the claims brought under its provisions. The unpleasant atmosphere was further aggravated by the decision in Sturgeon. Under article 7 of the Regulation 216/2004, passengers are entitled to compensation only for a cancelled flight. However, this rule was supplemented by decision in Sturgeon, when the Court held that the right to compensation is also applicable to passengers whose flight has been delayed. Thanks to that ruling, it is possible to claim compensation for delayed flights since the damage of delayed or cancelled flight is in fact the same. The compensated damage is the loss of time – being equally suffered by passengers whose flight was delayed and those whose flight was cancelled. The case has faced considerable amount of criticisms, from airlines themselves and academic world. Many legal commentators see the Sturgeon judgement as a judicial legislation, and not a mere interpretation. On the other hand, while providing such extensive interpretation, the Court focused on the overall purpose and goals of the Regulation, following a teleological method of interpretation. Riesenhulber has suggested that a basis for such interpretation could be found in recital 15. Nonetheless, there is no provision in the text that would support the interpretation.
The interpretation given to the Regulation by the Court has been described as “consumer-oriented”. The Regulation’s crucial aim is to protect air travellers from unfair treatment. Hence, the Court believes that Regulation should be construed broadly as to give effect to its objectives. The interpretation of the Regulation, its provisions and concepts, has caused some controversy and it will be further discussed in the following section.
“Extraordinary circumstances” and decision in Transportes Aereos
“Extraordinary circumstances” can be used as a defense by air carrier which refuses to fulfil its obligation to pay compensation. Under the EU law, exceptions should be interpreted narrowly and strictly. Such a rigorous approach can be seen in Wallentin-Herman case, where the Court held that technical malfunction does not amount to “extraordinary circumstances”. Some commentators see the case as bringing an end to abusive use of “extraordinary circumstances” justification. Hence, a list of “extraordinary circumstances” under which air carriers can be exempted from its obligation to pay compensation is considerably narrow. Technical problems, such as collision with mobile stairs (C-394/14 Siewert), or a failure resulting from inadequate maintenance of an aircraft (C-832/18 Finnair) will not amount to “extraordinary circumstances”. The technical aspects of operating an aircraft are inherent to an effective functioning of the industry, hence the technical malfunction cannot be considered as unforeseeable. It is an airline’s obligation to effectively maintain operating aircrafts. On the other hand, collision with a bird (C-315/15 Peskova and Peska), consequences of volcanic eruption (C-12/11 McDonagh v Ryanair) and damage caused by unexpected object on the airport runway (C-501/17 Germanwings) all fall into the meaning of “extraordinary circumstances”.
The recently decided case, Transportes Aereos, adds to this narrow list of exceptions. The unruly behaviour of one of passengers, that caused a delay of the following flight, has been decided to be a security risk. In the recital 14 of the Regulation, security risk is one of the explicitly mentioned categories of unforeseeable circumstances that, after taking all reasonable measures, may exempt an air carrier from obligation to pay. The Court stated that unruly, violent or intoxicated passenger certainly poses a great risk to safety of a flight. Moreover, such a behaviour is not inherent to usual course of flight operation, which leads this behaviour to fall under the concept of “extraordinary circumstances”.
However, if an uncontrollable behaviour is apparent before commencement of a flight, and air carrier contributes or not mitigates such a behaviour beforehand, the exemption does not apply. Therefore, if an airline has not failed to take any necessary measure nor has it contributed to or ignored a turbulent behaviour, it may justify its refusal to pay compensation on the grounds of extraordinary circumstances. The evaluation of circumstances surrounding inappropriate behaviour of a passenger is left for the national courts to determine.
Moreover, the Court also presented its understanding of “reasonable measures” (paras. 60-61) expected from the air carrier in order to be fully exempted from its obligation to pay compensation. The detailed overview provides that if an air carrier has not taken sufficient and exhaustive measures to mitigate the cancellation or long delay, it cannot rely on the exemption of “extraordinary circumstances”. Hence, “reasonable measures”, according to the judgement, cover reasonable re-routing, which may include finding a direct or indirect flight operated by the same or another airline. Only when such a re-routing is believed to be an unbearable burden and it does not mitigate the cancellation or long delay, it may be concluded that the airline has done everything in its power to assist a passenger. That is, it took all the reasonable measures expected from it.
Transportes Aereos adds to a narrow list of exemptions under which air carriers can justify their refusal to pay compensation. If passenger’s behaviour constitutes a risk to safety and forces pilot to divert, it constitutes to a situation out of air carrier’s control, being “extraordinary circumstance”. The decision supplements the current interpretation of “extraordinary circumstances” which are not clearly defined in the Regulation itself. By adding to the interpretation, the case contributes to a clearer outline of what extraordinary circumstances are. This case substantiates the explanations of “extraordinary circumstances” and “reasonable measures” found in settled case-law. The Court provides a perspective to what constitutes a “reasonable measure” which is a condition to be exempted from obligation on the grounds of “extraordinary circumstances”. A question of whether or not an air carrier has contributed or ignored the unusual and unruly behaviour, that is surrounding circumstances, is left for the national courts to decide.