On 11 June 2020, the Court of Justice held its judgment in Case C-74/19, LE v Transportes Aéreos Portugueses SA, on the interpretation of Article 5(3) of Regulation (EC) No 261/2004.The request has been made in proceedings between LE and Transportes Aéreos Portugueses SA (“TAP”), concerning the latter’s refusal to compensate that passenger for a long delay to his flight.

LE made a reservation with TAP for a flight from Fortaleza (Brazil) to Oslo (Norway) with a stopover in Lisbon (Portugal), which was operated with a delay in arrival in Oslo of almost 24 hours. More particularly, LE was unable to board the second leg of the connecting flight because of a delay in the arrival of the first flight due to the fact that, on its previous flight from Lisbon to Fortaleza, the aircraft had to be diverted to Las Palmas de Gran Canaria (Spain) in order to disembark an unruly passenger who assaulted other passengers and members of the cabin crew. 

Consequently, LE asked TAP to pay the compensation of EUR 600 provided for by Regulation No 261/2004. However, since the air carrier refused claiming that the long delay in question was due to extraordinary circumstances, LE brought an action before the Tribunal Judicial da Comarca de Lisboa (District Court of Lisbon; the “referring court”) which, in light of the need to interpret the European legislation, stayed the proceedings and asked the Court of Justice three preliminary questions.

By its first question, the referring court asked whether Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, must be interpreted as meaning that the unruly behaviour of a passenger which has justified the flight commander of the aircraft diverting the flight concerned to an airport other than the airport of arrival in order to disembark that passenger and his baggage falls within the concept of “extraordinary circumstances” within the meaning of that provision. According to the Court, an unruly behaviour of such gravity as to justify the pilot in command diverting the flight concerned is not inherent in the normal exercise of the activity of the operating air carrier concerned nor is under its control, and therefore can be qualified as an “extraordinary circumstance” within the meaning of Article 5(3) of Regulation No 261/2004.

By its second question, the referring court asked whether Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, must be interpreted as meaning that, in order to be relieved of its obligation to compensate passengers in the event of a long delay or cancellation of a flight, an operating air carrier may rely on an ‘extraordinary circumstance’ which affected not that cancelled or delayed flight but a previous flight which it operated using the same aircraft. According to the Court, this possibility is in the air carrier’s right only where there is a direct causal link between the occurrence of that circumstance which affected a previous flight and the delay or cancellation of a subsequent flight, which is for the referring court to evaluate in light of the facts available to it and the conditions of operation of the aircraft concerned.

Finally, by its third question the referring court asked whether Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, must be interpreted as meaning that the fact of an air carrier re-routing a passenger, on the ground that the aircraft carrying that passenger was affected by an extraordinary circumstance, by means of a flight operated by itself and resulting in that passenger arriving on the day following the day originally scheduled constitutes a “reasonable measure” releasing that carrier from its obligation to pay compensation under Article 5(1)(c) and Article 7(1) of that regulation. According to the Court, the air carrier will be exempted from its obligation only where it re-routed the passenger because there was no other possibility of re-routing on a flight arriving at a time which was not as late as the next one, or where such re-routing constituted an intolerable sacrifice for that air carrier in the light of the capacities of its undertaking at the relevant time.

Marco Stillo