Opinion of the Advocate General — ECLI:EU:C:2020:135
Date: 2020-02-27
Language of the case: Portuguese
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Portugal

summary of the case-law, the Commission aims to ‘explain more clearly a number of provisions contained in the Regulation, in particular in the light of the Court’s case-law, so that the current rules can be more effectively and consistently enforced’. 11 Chatzipanagiotis, M., ‘Disrupted Flights and Information Duties of Air Carriers: The Interplay Between Regulation (EC) No 261/2004 on Air Passenger Rights and the Unfair Commercial Practices Directive’, Air & Space Law, 43, No 4&5 (2018), p. 434. 12 See proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, (COM(2013) 130 final), of 13 March 2013. 13 Judgments of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 21), and of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342, paragraph 21). 14 It should be noted that, even though, formally, the referring court has limited its first question to the interpretation of recital 14 of Regulation No 261/2004, such a situation does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in the wording of those questions (see judgments of 29 October 2015, Nagy, C‑583/14, EU:C:2015:737, paragraphs 20 and 21, and of 21 March 2019, Mobit and Autolinee Toscane, C‑350/17 and C‑351/17, EU:C:2019:237, paragraph 35). 15 Riesenhuber, K., Europäische Methodenlehre, 2nd edition, Berlin, 2010, § 18, subparagraph 20 et seq., notes the importance of adopting a contextual interpretation of the rules of law, based on the idea of ‘the unity of legal language’, and mentions by way of example the judgment of 18 December 2008, Andersen (C‑306/07, EU:C:2008:743, paragraph 40 et seq.). See also the Opinion of Advocate General Tanchev in Germanwings (C‑501/17, EU:C:2018:945, point 69), in which he relies on an analysis which includes other acts of secondary legislation in the field of air transport. 16 According to settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgments of 16 July 2015, Maïstrellis, C‑222/14, EU:C:2015:473, paragraph 30, and of 21 March 2018, Klein Schiphorst, C‑551/16, EU:C:2018:200, paragraph 34). 17 See, for example, the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999 (UNTS Vol. 2242, p. 369), which the European Community signed and subsequently approved by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38; ‘the Montreal Convention’). That convention entered into force, so far as the European Union is concerned, on 28 June 2004. It was transposed by Regulation (EC) No 2027/97 of the Council of 9 October 1997 on air carrier liability in the event of accidents (OJ 1997 L 285, p. 1). The Montreal Convention is therefore an integral part of the EU legal order (see judgment of 22 November 2012, Espada Sánchez and Others, C‑410/11, EU:C:2012:747, paragraph 20). 18 The European Union is bound by an international convention which it has not concluded when it assumes the powers previously exercised by its Member States in the field to which that convention applies (see, to that effect, judgments of 22 October 2009, Bogiatzi, C‑301/08, EU:C:2009:649, paragraph 33, and of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 63). 19 Mendes de Leon, P., Introduction to Air Law, Alphen aan den Rijn, 2017, p. 514, and Piera, A., ‘ICAO’s latest efforts to tackle legal issues arising from unruly/disruptive passengers: The Modernization of the Tokyo Convention 1963’, Air & Space Law, 2012, Vol. 37, No 3, p. 237, state that the Tokyo Convention addresses the issue of the ‘disruptive passenger’. They explain that that convention does not contain a definition of the concept of ‘offence’, and leaves that concept to be interpreted under national law. The authors note that the International Civil Aviation Organisation (‘ICAO’) adopted some guidance on the legal aspects of the issue of unruly/disruptive passengers (‘ICAO circular 288 – Guidance Material on the Legal Aspects of Unruly/Disruptive Passengers’), according to which any assault on cabin crew and other passengers must be considered an ‘offence’ under that convention. They also mention the Montreal Protocol of 4 April 2014 amending the Tokyo Convention, signed by all EU Member States, which encourages all the State signatories to initiate proceedings against the acts considered to be the most serious, namely where a person on board commits or threatens to commit an act of violence against a crew member or refuses to follow instructions given by the pilot in command. 20 Judgments of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 22); of 17 April 2018, Krüsemann and Others (C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 34); and of 4 April 2019, Germanwings (C‑501/17, EU:C:2019:288, paragraph 20). 21 Judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 17). 22 Judgments of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43, paragraph 38); of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342, paragraph 22); and of 17 April 2018, Krüsemann and Others (C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 32). 23 See the Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Aviation Strategy for Europe: Maintaining and promoting high social standards (COM(2019) 120 final), of 1 March 2019. 24 Point 2(b) of Annex V to Regulation 2018/1139 states that ‘the crew must be familiar with and passengers informed of the location and use of relevant emergency equipment’. It also provides that ‘sufficient information, related to the operation and specific to the equipment installed, regarding emergency procedures and use of cabin safety equipment must be made available to crew and passengers’. 25 Mendes de Leon, P., Introduction to Air Law, Alphen aan den Rijn, 2017, p. 512; Nase, V./Humphrey, N., ‘Angry People in the Sky: Air Rage and the Tokyo Convention’, Journal of Air Law and Commerce, vol. 79, No°4, p. 702; and Ginger, S., ‘Violence in the skies: The rights and liabilities of air carriers when dealing with disruptive passengers’, Air & Space Law, 1998, vol. 23, No 3, p. 109, state that disruptive passenger behaviour may be attributed to ‘external’ factors (for example, anger due to long delays, loss of baggage or poor service, or frustration in relation to certain expectations, long queues at boarding gates, over-crowded aircraft cabins) and ‘internal’ factors (for example, psychological or psychiatric problems, excessive consumption of alcohol, smokers’ withdrawal symptoms or, more generally, antisocial behaviour). 26 Opinion of Advocate General Tanchev in Germanwings (C‑501/17, EU:C:2018:945, points 60 and 61). 27 According to the document ‘Unruly Passengers – Enhancing the deterrent’ (3 April 2019), by the International Air Transport Association (IATA), incidents involving unruly passengers affect only one flight in 1 053, although the frequency of such events is increasing. 28 See point 43 of this Opinion. 29 Schmid, R., Fluggastrechte-Verordnung, C.H. Beck, 11th edition, paragraphs 121 and 122, shares the view of several German courts which have ruled on the issue of disruptive passengers, according to which passenger behaviour which is ‘unforeseen, uncontrollable and aggressive’ constitutes an ‘exceptional circumstance’. According to the author, the situation should be assessed differently if the cabin crew had evidence before, or even during, boarding that the passenger was inebriated and was therefore likely to pose a risk to the safety of the flight. 30 Mendes de Leon, P., Introduction to Air Law, Alphen aan den Rijn, 2017, p. 501; Ginger, S., ‘Violence in the skies: The rights and liabilities of air carriers when dealing with disruptive passengers’, Air & Space Law, 1998, vol. 23, No°3, p. 107; Michaelides, S., ‘Unruly passenger behaviour and the Tokyo Convention’, Coventry Law Journal, 2001, No°6, p. 38; Piera, A., ‘ICAO’s latest efforts to tackle legal issues arising from unruly/disruptive passengers: The Modernization of the Tokyo Convention 1963’, Air & Space Law, 2012, vol. 37, No°3, p. 236; and Abeyratne, R., ‘A protocol to amend the Tokyo Convention of 1963: Some unanswered questions’, Air and Space Law, 2014, vol. 39, No 1, p. 48, state that the Tokyo Convention confers extensive powers on pilots in command of aircraft to deal with offences committed on board. According to the authors, the pilot in command may exercise those powers without fear of incurring civil or criminal liability for his or her acts, since the Tokyo Convention guarantees him or her immunity. 31 See Michaelides, S., ‘Unruly passenger behaviour and the Tokyo Convention’, Coventry Law Journal, 2001, No°6, p. 41; Ginger, S., ‘Violence in the skies: The rights and liabilities of air carriers when dealing with disruptive passengers’, Air & Space Law, 1998, vol. 23, No°3, p. 107; Abeyratne, R., ‘A protocol to amend the Tokyo Convention of 1963: Some unanswered questions’, Air and Space Law, 2014, vol. 39, No°1, p. 49. Mendes de Leon, P., Introduction to Air Law, Alphen aan den Rijn, 2017, p. 512, explains that it can sometimes be difficult to establish what constitutes an offence in a particular case, but that it is for the pilot in command to make a final decision. 32 Judgment of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342, paragraphs 9 to 11). 33 Judgment of 4 April 2019, Germanwings (C‑501/17, EU:C:2019:288, paragraph 9). 34 Spanish: ‘se debe a’; Danish: ‘skyldes’; German: ‘auf … zurückgeht’; Estonian: ‘põhjustasid’; English: ‘is caused by’; French: ‘est due à’; Italian: ‘è dovuta a’; Dutch: ‘het gevolg is van’; Polish: ‘jest spowodowane’; Portuguese: ‘se ficou a dever a’. 35 Spanish: ‘una aeronave determinada / den lugar / uno o más vuelos de la aeronave’; Danish: ‘bestemt fly / medfører / af en eller flere flyafgange’; German: ‘einem einzelnen Flugzeug / zur Folge hat / bei einem oder mehreren Flügen des betreffenden Flugzeugs’; Estonian: ‘konkreetsele lennukile / ühe või mitme lennu’; English: ‘a particular aircraft / gives rise / one or more flights by that aircraft’; French: ‘un avion précis / génère / d’un ou de plusieurs vols de cet avion’; Italian: ‘un particolare aeromobile / provochi / uno o più voli per detto aeromobile’; Dutch: ‘één of meer vluchten van dat vliegtuig veroorzaakt’; Polish: ‘danego samolotu spowodowała / jednego lub więcej lotów’; Portuguese: ‘uma determinada aeronave / provoque / um ou mais voos dessa aeronave’. 36 See Clarke, L., Johnson, E., Nemhauser, G., Zhu, Z., ‘The aircraft rotation problem’, Annals of Operations Research, 1997, p. 33; Lindner, M., Rosenow, J., Förster, S., Fricke, H., ‘Potential of integrated aircraft rotation and flight scheduling by using tail sign performance’, Deutscher Luft- und Raumfahrtkongress 2016. 37 Judgment of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 74). 38 Judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 39). 39 It must be stated that the ‘reasonable measures’ to be taken by the air carrier under Article 5(3) of Regulation No 261/2004 must be intended to avoid the typical, and therefore foreseeable, negative consequences for passengers caused by extraordinary circumstances, namely cancellations and long delays. However, the fact that the extraordinary circumstances themselves may have been avoidable is not relevant. 40 Judgment of 5 July 2016, Ognyanov (C‑614/14, EU:C:2016:514, paragraph 16). 41 See judgments of 12 May 2011, Eglītis and Ratnieks (C‑294/10, EU:C:2011:303, paragraph 29 et seq.), and of 4 May 2017, Pešková and Peška (C‑315/15, EU:C:2017:342, paragraph 30). 42 Judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 40). 43 Judgments of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 41), and of 4 April 2019, Germanwings (C‑501/17, EU:C:2019:288, paragraph 31). 44 See judgment of 26 February 2013, Folkerts (C‑11/11, EU:C:2013:106, paragraphs 35 and 47). 45 Judgment of 12 May 2011, Eglītis and Ratnieks (C‑294/10, EU:C:2011:303, paragraph 28). 46 See the Opinion of Advocate General Sharpston in Kramme (C‑396/06, EU:C:2007:555, point 47).