Ruling of the Court of Justice of the European Union in joined cases C-156/22 to C-158/22

The cancellation of a flight due to the unexpected death of the co-pilot does not exempt the air carrier from its obligation to compensate passengers under Regulation No 261/2004

On 11 May 2023, the Court of Justice of the European Union (CJEU) – in joined cases C-156/22 to C-158/22 – has ruled that the unexpected death of the aircraft´s co-pilot shortly before the scheduled departure of the flight does not constitute an extraordinary circumstance under Regulation No 261/2004. Thus, the air carrier in this situation is not exempted from its obligation to compensate passengers under Regulation No 261/2004. 

The facts of the case
On 17 July 2019, TAP Portugal, as operating carrier, was to operate a flight from Stuttgart (Germany) to Lisbon (Portugal), with a departure scheduled at 6.05. On the same day, at 4.15, the co-pilot who was to operate the flight concerned was found dead in his hotel bed. Shocked by this event, the whole crew declared itself unfit to fly. As no replacement staff was available outside TAP Portugal’s base, the 6.05 flight was canceled. Subsequently, a replacement crew left Lisbon at 11.25 and arrived in Stuttgart at 15.20. Next, the passengers were transported to Lisbon on a replacement flight scheduled at 16.40.

’Claim farmers’ on behalf of the passengers affected have claimed payment of compensation under Regulation 261/2004 due to the cancellation of the flight in question.

TAP Portugal have refused to pay compensation provided for in Article 7(1) of Regulation No 261/2004, claiming that the unexpected death of the co-pilot was an extraordinary circumstance which exempts the air carrier from its obligation to pay compensation subject to Article 5(3) of Regulation No 261/2004.

The ruling of the CJEU
The Stuttgart Regional Court, before which the case was brought, submitted a number of questions to the CJEU.

CJEU has stated that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the unexpected absence – due to illness or death of a crew member whose presence is essential to the operation of a flight – which occurred shortly before the scheduled departure of that flight, does not constitute extraordinary circumstances within the meaning of that provision.

With this judgment, the CJEU recalls that measures relating to the staff of the operating air carrier, such as those concerning crew planning and staff working hours, fall within the normal exercise of the air carrier’s activities. Since the management of an unexpected absence, due to illness or death, of one or more members of staff whose presence is essential to the operation of a flight, including shortly before the departure of that flight, is intrinsically linked to the question of crew planning and staff working hours, such an absence is inherent in the normal exercise of the operating air carrier’s activity and therefore does not fall within the concept of extraordinary circumstances. Thus, the air carrier is not exempted from its obligation to compensate passengers under Regulation No 261/2004.

Further CJEU points out that, however tragic and final it may be, the situation of an unexpected death is no different, from a legal point of view, from that in which a flight cannot be operated when such a member of staff has unexpectedly fallen ill shortly before the departure of the flight. Thus, it is the very absence and not the specific medical cause of that absence which constitutes an event inherent in the normal exercise of that air carrier’s activity, with the result that the air carrier must expect such unforeseen events to arise in the context of planning its crews and the working hours of its staff.  

Opinion of IACOBUS Law
In the opinion of IACOBUS Law the concept of extraordinary circumstances under Regulation No 261/2004 is interpreted extremely narrowly with this ruling by the CJEU. Thus, the ruling of the CJEU in this case must be considered to be very strict.

It seems pretty harsh that the CJEU finds that the unexpected death of the co-pilot less than 2 hours prior to the scheduled departure is to be considered as inherent in the normal exercise of the operating air carrier’s activity and therefore does not constitute an extraordinary circumstance under Regulation No 261/2004. Especially considering that the whole crew afterwards declared itself unfit to fly due to shock as a direct result of the unexpected death of the co-pilot.

As IACOBUS Law sees it, the ruling of CJEU in this case is debatable and needs to be challenged in future similar cases. The ruling also indicates that a revision of Regulation No 261/2004 is urgently needed on an EU level in order to protect the interest of the air passengers by ensuring that the air carriers comply with a high level of air passenger protection during travel disruptions, while at the same time ensuring that air carriers operate under transparent conditions. A revision of Regulation No 261/2004 should aim to clarify the definition of ‘extraordinary circumstances’ in case of flight cancellations or delays.