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Published 23 febrero 2021
Air rage and passenger flight delay claims under EU261: cause and effect
In the context of aviation law and specifically air passenger regulation, Brexit does not mark a stark departure from the status quo. From 1 January 2021, EU Regulations, to include EU261/2004, stand incorporated into UK domestic law, amended as necessary by statutory instrument to be compatible with the same but not (for now) fundamentally changing the rights and obligations concerned. A second impact of The European Union (Withdrawal) Act 2018, is to incorporate into domestic law, all decisions of the Court of Justice of the European Union (CJEU) handed down prior to 31 December 2020.
Since entering into force in February 2005, EU 261 has vexed both carrier and passenger alike and provided a rich and steady stream of referrals to the CJEU by national courts. The pendulum swing of justice has oft swung in favour of the claimant passenger, so it is refreshing that in 2020 the CJEU delivered a judgment that is more balanced and in fact supportive of the carrier. In LE v Transport Aéreos Portugueses SA the CJEU further refined judicial interpretation of EU261, specifically entitlement of the carrier, in the context of unruly passenger behaviour, to seek relief under the defence of “extraordinary circumstance” from obligation to pay compensation for flight delay.
Incidents of air rage even in times of Covid-19 remain on a worrying upwards trajectory. They can be alarming and upsetting for passengers and crew alike. In more extreme cases, they have the potential to cause serious air incident or accident. At an operational level, the antics of the unruly passenger may prompt an in-flight diversion and spawn passenger flight delay compensation claims. In 2020, the CJEU considered whether flight diversion prompted by unruly passenger behaviour constitutes an, “extraordinary circumstance,” under EU261 so to relieve the carrier of obligation to pay flight delay compensation, and whether this is so (and this was the novel aspect), not only as regards the diverted flight, but also of a subsequent flight operated by the carrier and using the same aircraft.
The claimant passenger made a reservation with Transportes Aéreos Portugueses SA (TAP) for a flight from Fortaleza (Brazil) to Oslo (Norway), with a stopover in Lisbon (Portugal). The flight was operated, but with a delay in arrival in Oslo of almost 24 hours. The aircraft which operated the first leg of his flight from Brazil to Portugal was delayed on its immediately preceding inbound flight : it diverted to Las Palmas de Gran Canaria to disembark an unruly passenger. In a disgraceful display of air rage, the individual concerned had bitten a fellow passenger and assaulted other passengers and members of the cabin crew. It was common ground that the pilot in command was justified in diverting the flight, mindful of his obligation for flight safety. The claimant was carried on the next flight operated by TAP, the following day. On account of the resulting flight delay he sought compensation of Euro 600 from TAP under EU261. TAP declined to pay, seeking recourse to the “extraordinary circumstance” defence in the EU261.
The referral for preliminary ruling
In broad terms, under EU261, long flight delay and cancellation entitle the inconvenienced passenger to monetary compensation. The regulation seeks to strike a balance: operating carriers are relieved of obligation to compensate if they prove that the delay or cancellation is caused by extraordinary circumstances that could not have been avoided, even if all reasonable measures had been taken (Article 5.3). In the instant case, the national Portuguese court had doubts as to the legal classification of the circumstances giving rise to the delay of the flight concerned, and as to the reasonableness of the measures implemented by TAP and so, in January 2019, referred the matter to the CJEU for a preliminary ruling.
In its judgment, the Fourth Chamber held:-
The decision prompts reflection:-
 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
 Case C-74/19, Judgment of the Court (Fourth Chamber) of 11 June 2020.
 ‘Breathalyser Test Before Boarding’ Lorraine Wilson, published 26 October 2020 .
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