An air passenger's unruly behaviour may constitute an extraordinary circumstance under Regulation 261/2004

Background

A flight from Brazil to Norway via Portugal arrived in Norway almost 24 hours late. This was due to a delay of the aircraft carrying out this flight, in arriving at the airport of departure. On the outbound sector, it had to be diverted to disembark an unruly passenger. The claimant missed his connection and went to Norway on the next flight operated by the carrier, on the next day.

The passenger claimed the standard compensation provided for a delay for more than three hours under Regulation 261/2004. The airline refused to pay, on the basis that the delay was caused by extraordinary circumstances, and sending a different aircraft would not have prevented the delay.

Referral to the Court of Justice of the European Union (CJEU)

The referring court asked the CJEU three questions. First, it wanted to confirm whether, when the captain decides that the behaviour of the unruly passenger is so bad as to justify diverting to the nearest airport, this amounts to an extraordinary circumstance under Regulation 261/2004. Second, it requested clarification on whether an extraordinary circumstance could exempt an airline from paying compensation when the extraordinary circumstances impacted the flight immediately preceding the flight that the claimant actually boarded, and on which he suffered a delay. Third, it wanted to ascertain whether the airline's decision not to send a different aircraft, on the assumption that this would have not prevented the delay, meant that the airline had not taken all reasonable measures, for the purposes of Regulation 261/2004.

The CJEU's ruling

The first question

It is settled case law that an event may be categorised as an extraordinary circumstance if it is not inherent in the normal exercise of the activity of the air carrier concerned and it is outside that carrier’s actual control. Recital 14 of Regulation 261/2004 notes that a security risk may amount to an extraordinary circumstance. It is accepted that the behaviour of a passenger which causes the flight commander to land the aircraft is a security risk; and such grave behaviour is not inherent in the normal exercise of the activity of the carrier. The unruly passenger's behaviour may not have been foreseeable, and the crew had limited means to control him. As such, an unruly passenger, whose behaviour may not have been foreseen, does fall within the definition of an extraordinary circumstance.

However, the CJEU highlighted that they were not aware whether the carrier's conduct contributed to the unruly behaviour of the passenger; or whether the carrier could have actually anticipated such behaviour in time to prevent the flight disruption. Indeed, the pilot has the authority to refuse to carry any person who may constitute a threat to the safety of the aeroplane or its occupants.

The CJEU concluded that this was for the referring court to consider, and on this basis decide whether or not on the facts of the case, the cause of the delay was an extraordinary circumstance.

The second question

The purpose of the Regulation is to balance the interests of air passengers and air carriers. The CJEU took into account the way air carriers operate their aircraft, accepting that the same aircraft can be required to carry out successive flights within a day, and therefore that extraordinary circumstances affecting one flight would have an impact on its subsequent flights. It follows that an air carrier can rely on an extraordinary circumstance affecting a previous flight, to be exempted from the obligation to pay compensation to passengers of a subsequently delayed or cancelled flight.

The CJEU imposed a condition on this reliance however: there must be a causal link between the occurrence of the circumstance, and the delay / cancellation of the subsequent flight. The existence of this link is for the national court to determine, having regard in particular to the way the air carrier operates their aircraft.

The third question

Under Regulation 261, an air carrier can indeed avoid paying compensation, if it can demonstrate that it had deployed all of its resources (without making intolerable sacrifices) to try and prevent the delay.

The CJEU found that the mere offer to re-route the delayed passengers to their final destination on the next flight offered by the same carrier, which arrives a day later than initially scheduled, cannot be enough to release a carrier from their obligation to compensate for a long delay. An airline would be expected to ensure timely and satisfactory re-routing, by seeking direct or indirect flights arriving at a time closer to the passenger's original schedule, regardless of whether these flights belong to the same airline alliance. As such, it can only be satisfactory for an air carrier to re-route a passenger on its own next flight, if earlier flights from other carriers have no seats left, or if it would be an unbearable sacrifice for the air carrier to re-route them otherwise. This is for the national court to assess.

Passengers refusing to wear face masks

As airlines have restarted operations following COVID-19, many countries require passengers to wear face masks on public transport. The consequences of non-compliance include being denied boarding or facing a fine. Airlines are expected to ensure that, during the booking process and check-in, the requirement to wear a face mask on board is clearly communicated to passengers. This begs the question of the consequences under Regulation 261/2004 – for both airline and passenger – of non-compliance. A passenger is not entitled to a refund, replacement flight or compensation if there are reasonable grounds for being denied boarding, which includes reasons of health or safety. UK CAA guidelines do not specify whether a delay due to deboarding an uncooperative passenger, or a diversion for the same reason, would amount to "extraordinary circumstances" under Regulation 261/2004.

It is also not clear which reasonable measures airlines need to take to prevent the delay or cancellation. What steps should airlines take? Should they either:

1) deny passengers boarding who refuse to wear a face mask and consequently risk large compensation claims by the other passengers for flight delays or cancellations, or

2) ignore passengers who refuse to wear face masks and continue the flight as scheduled, on the basis that it is the passengers who will be fined rather than the airlines? That triggers the risk that other passengers become aggressive towards passengers who are refusing to wear a face mask?

Recent events of course draw attention to the risk that COVID-19 may be transmitted between passengers. This decision suggests that in some circumstances an airline will be able to avoid compensation clauses in the event of delays arising from passengers failing to comply with COVID-19 precautions, but that requires the events to be outside the airline's control.

Conclusion

The CJEU has reaffirmed that an "extraordinary circumstance" must be outside the carrier's control. An unruly passenger who suddenly turns aggressive during the flight, forcing a pilot to land, is an extraordinary circumstance; a passenger displaying disruptive behaviour prior to boarding and who is welcomed aboard regardless is not.

The CJEU also clarified what is expected of an airline before it can claim it took all "reasonable measures" under Regulation 261, to avoid paying compensation for a long delay. It must deploy "all its resources in terms of staff or equipment and the financial means at its disposal… to avoid… the cancellation or long delay of the flight…", short of making an "unbearable sacrifice". Sometimes, re-routing on its own next flight might be the best solution – but airlines must at least consider re-routing its passengers on another air carrier if they are to rely on this defence.