INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW On the other hand, it is crucial to distinguish events where the air carrier itself contributed to the disruptive behaviour of the passenger or where such behaviour was foreseeable, and preventive measures could have been taken by the carrier. Behavioural issues exhibited by a passenger before boarding the plane are indicators that impose a duty on the air carrier to refuse transportation and disembark such individuals. Even if the behaviour is not inherently linked to the carrier's normal activities, the carrier had actual control over such conduct, excluding the possibility of invoking the existence of extraordinary circumstances.86 4.3 COVID-19 as an extraordinary circumstance? Humanity has faced numerous pandemics throughout history - for example, SARS or MERS-CoV, which impacted the air transportation of passengers, but none demanded such stringent measures globally.87 The latter seemingly reinforces the argument that COVID-19 should be classified as extraordinary circumstances as defined by the Regulation. However, the CJEU, contrary to the opinion of Advocate General Sharpston,88 has not established a direct link between the exceptional nature of circumstances and the potential unexpectedness and rarity of events, attributable to the COVID-19 pandemic through its case law. Thus, the unpredictability of an event itself does not necessarily mean that an air carrier will succeed in invoking extraordinary circumstances,89 and such events can still lead to its liability. Therefore, the question of whether to include the pandemic under extraordinary circumstances should be answered on case-by-case basis. The Regulation does not itself address cases where passengers are unable or unwilling to travel and wish to cancel a flight of their own initiative. The course of action depends on the type of ticket and the general terms and conditions of the airline, as some may allow a refund or offer a reservation change.90 Carriers sometimes provide vouchers or credits to passengers in such situations, but this needs to be distinguished from cases where the carrier cancels the flight itself and only offers a voucher instead of the choice between a refund and a change of route.91 86 Ibid., para. 47. 87 Trimarchi, 2021, pp.145-146. 88 Opinion of Advocat General Sharpston in case C-396/06, Kramme of 27 September 2007, paras. 58-59. 89 Perriello, 2022, p. 64. 90 Commission Notice, Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19, para. 2.2., p. 2. 91 Ibid.
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