Violent behaviour by an air passenger can constitute an “extraordinary circumstance” which can exonerate an airline from its obligation to compensate for the cancellation or long delay of the flight concerned or of a subsequent flight operated by it using the same aircraft, the Court of Justice of the European Union ruled on Thursday 11 June (Case C-74/19).
A passenger is claiming financial compensation from the Portuguese airline TAP because his connecting flight was significantly delayed on arrival at its final destination. Citing an extraordinary circumstance, the air carrier refuses to compensate him on the ground that the delay of the flight was due to the violent behaviour of a passenger on a previous flight operated with the same aircraft which, for that reason, had been diverted.
When the case was referred to it by the District Court of Lisbon, the Court endorsed the reasoning of the Advocate General (see EUROPE 12435/14). It considers that the passenger's behaviour did indeed jeopardise the safety of the flight concerned and that it was neither inherent in the normal exercise of the airline's activity nor controllable by the airline.
However, a passenger's violent behaviour cannot escape the effective control of an air carrier and therefore be qualified as an “extraordinary circumstance” if it appears that the airline contributed to the occurrence of the behaviour or that it was able to anticipate it and take appropriate measures to avoid significant consequences, based on early warning signs before or even during the boarding of passengers.
Second, the Court states that an air carrier may be exempted from its obligation to compensate passengers if there is a direct link between the occurrence of that circumstance affecting a previous flight and the delay or cancellation of a subsequent flight, which is for the national court to determine by taking into account, in particular, the operating conditions of the aircraft concerned.
The Court also considers that, in the event of the occurrence of an “extraordinary circumstance”, the air carrier must make every effort to ensure that passengers are re-routed reasonably, satisfactorily and as soon as possible. In particular, it must seek out other direct or indirect flights, possibly operated by other airlines, whether or not they belong to the same airline alliance, which arrive at a later time than the next flight of the airline concerned.
Consequently, a carrier will not have used all the means at its disposal if it limits itself to offering re-routing to the final destination by the next flight operated by itself and arriving at the destination on the day following the day originally scheduled for its arrival, unless there are no seats available on another direct or indirect flight and the provision of such re-routing would constitute an unbearable sacrifice for that air carrier.
See the judgment: https://bit.ly/3cN8XWQ (Original version in French by Mathieu Bion)