AIR PASSENGER RIGHTS BEFORE, DURING, AND AFTER COVID-19 circumstances. In addressing this contentious issue in the Moens78 case, the CJEU applied the above-discussed decision in the case of technical issues in Germanwings. It emphasized that the airline cannot influence a fuel spill on the runway, as its maintenance is not within its jurisdiction, and the decision to close the runway is mandatory and must be respected.79 Therefore, in this specific case, the closure of the airport runway corresponded to the definition of extraordinary circumstances, provided that the spilled fuel did not originate from the aircraft operated by the carrier for that flight.80 However, to exempt the carrier from liability for damages, it must be proven that extraordinary circumstances could not have been avoided even by taking appropriate measures.81 In this regard, the CJEU followed the reasoning of Advocate General Tanchev, who emphasized that in this case, the airline is in a position where it does not participate in making decisions regarding the management of the runway. Therefore, it cannot seek solutions on its own and must adhere to instructions received from air traffic control.82 4.2 Non-compliance with the rules of the air carrier The behaviour of air passengers is inherently unpredictable, and considering the circumstances in which flights are conducted, it would be unreasonable to expect an air carrier to anticipate and always successfully control inappropriate passengers’ conduct. The case of Transportes Aeros Portugueses83 serves as confirmation, where a pilot was forced to make an unplanned landing due to the inappropriate behaviour of one passenger who physically attacked a fellow passenger and airline personnel. The unscheduled stop resulted in a delay, causing one passenger to miss a connecting flight. The CJEU, in its reasoning, took the position that such passenger behaviour is not inherently linked to the normal activities of the specific air carrier and can pose a danger to the flight's execution.84 The airline has limited means to control such passengers, and it has no control over such outbursts.85 For these reasons, the conclusion was reached that extraordinary circumstances were present. 78 Case C-159/18, Moens of 26 June 2019. 79 Ibid., para. 20. 80 Ibid., para. 22. 81 Ibid., para. 25. 82 Opinion of Advocat General Tancheva in case C-159/18, Moens of 19 December 2018, para. 36. 83 Case C-74/19, Transportes Aéreos Portugueses of 11 June 2020. 84 Ibid., paras. 39-41. 85 Ibid., paras. 41-43.
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