EC Regulation 261/2004, more commonly known as the ‘Denied Boarding Regulation’, sets out airline passengers’ rights to compensation, care, and assistance from air carriers if their flights are cancelled or delayed, or if they are denied boarding. Article 5(3) of the Denied Boarding Regulation states that an air carrier shall not be obliged to pay compensation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided, even if all reasonable measures had been taken.
The European Court of Justice recently provided a preliminary ruling pursuant to Article 267 TFEU in C-74/19 LE v Transport Aereos Portugueses SA, where the ‘extraordinary circumstances’ exception was examined.
LE made a reservation with TAP for a flight from Fortaleza to Oslo, with a stopover in Lisbon. However, when embarking upon his journey, LE was not able to board the connecting flight from Lisbon to Oslo, due to a delay in the arrival of the first flight from Fortaleza. The delay resulted from the fact that the aircraft which operated that flight, on its previous flight from Lisbon to Fortaleza, was diverted to Gran Canaria to disembark an unruly passenger, who had bitten another passenger and assaulted other passengers and cabin crew. LE was flown to Oslo on TAP’s next available flight the following day, resulting in a delay in arrival of almost 24 hours.
As the delay was for longer than three hours, LE asked TAP to pay compensation of €600 pursuant to Article 5(1)(c) and Article 7(1) of the Denied Boarding Regulation. TAP refused to compensate LE, as they considered the long delay was due to extraordinary circumstances. TAP also argued that sending another aircraft would not have made it possible to remedy the delay. LE subsequently brought legal action against TAP in Lisbon. The District Court in Lisbon referred the following questions to the CJEU for a preliminary ruling:
1) First, does the fact that a passenger, in the course of a flight, bites other passengers and assaults crew members who attempt to calm him to such an extent as to justify, according to the flight commander, a diversion to the nearest airport to disembark that passenger and unload his luggage, which results in the delayed arrival of the flight at its destination, fall within the concept of ‘extraordinary circumstances’?
2) Is an ‘extraordinary circumstance’ which occurs on an outward flight immediately preceding the return flight made by the same aircraft, relevant to exempt the air carrier from liability for the delay in the take-off of that latter flight onto which the complainant passenger has boarded?
3) For the purposes of Article 5(3) of the Denied Boarding Regulations, does the analysis carried out by the airline, which concluded that another aircraft would not avoid the situation of delay and therefore the transfer of the transit passenger to a flight scheduled for the following day, since the airline operates only one daily flight to the passenger’s final destination, correspond to conduct by the airline in which it took all reasonable measures, even if it was not possible to remedy the delay?
The First Question
It is established caselaw that events may be classified as ‘extraordinary circumstances’ if, by their nature and origin, they are not inherent in the normal exercise of the activity of the air carrier, and are outside the carrier’s actual control. Such circumstances may occur if there are security risks.
The Court considered that an unruly passenger who behaved in such a manner as to cause the pilot to divert a flight to an airport other than the airport of arrival, so that the passenger could be disembarked, jeopardised the safety of that flight. Unruly behaviour of such gravity was not inherent in the normal exercise of the activity of the air carrier. Although carriage of passengers exposed air carriers to the duty to manage their behaviour, the behaviour of an unruly passenger did not constitute the behaviour of a responsible passenger. In addition, the behaviour of an unruly passenger was not, in principle, under the control of the air carrier, as it was the act of a passenger whose behaviour and reactions were not necessarily foreseeable, and secondly, the crew only had a limited means of controlling the passenger.
The Court distinguished this from a situation where an air carrier appeared to contribute to the occurrence of a passenger’s unruly behaviour, or if the air carrier was in a position to anticipate the behaviour and take appropriate measures at a time when it was able to do so without any significant consequence for the operation of the flight, on the basis of warning signs of such behaviour. For example, if an air carrier took on board a passenger who displayed behavioural problems before or during boarding, any unruly behaviour of the passenger would be within the control of the carrier and the behaviour would not be considered an ‘extraordinary circumstance’.
As such, unless it can be established that the air carrier contributed to the occurrence of the behaviour or failed to take appropriate measures in view of the warning signs of such behaviour, the extraordinary circumstances exception would be met in the above circumstances.
The Second Question
The Court considered in relation to the second question that an air carrier could rely upon an ‘extraordinary circumstance’ affecting a previous flight which it operates with the same aircraft in order to be exempted from its obligation to compensate passengers in the event of a long delay or flight cancellation. However, there must be a direct causal link between the occurrence of that circumstance and the delay or cancellation of the subsequent flight.
The Third Question
In the event of the occurrence of an extraordinary circumstance, the air carrier will be released from its obligation to pay compensation under the Denied Boarding Regulation if it is able to prove that it adopted measures appropriate to the situation by deploying all of its resources, in terms of staff, or equipment, and the financial means at its disposal, in order to avoid that circumstance leading to the cancellation or delay of a flight.
An air carrier would not be deemed to have taken reasonable measures, thus releasing them from their obligation to pay compensation under the Denied Boarding Regulations, simply by re-routing a passenger on their next available flight which arrived a day later. There would have to be no possibility of either a direct or indirect re-routing of a flight by the carrier, or indeed any other carrier, arriving at a time that was not as late as the next flight of the air carrier concerned. In addition, an air carrier could argue that the implementation of such re-routing constitutes an intolerable sacrifice for that carrier, in the light of the capacities of its undertaking at the relevant time.
This case provides some much-needed clarification as what may constitute an ‘extraordinary circumstance’. Even if an air carrier can establish an ‘extraordinary circumstance’ and a direct causal link between the occurrence of that circumstance and the delay or cancellation, they may still be liable to pay compensation if they do not explore alternative flights with other air carriers when attempting to re-route a passenger.
About the author
Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.