On 11 May 2023, the Court of Justice handed down its judgment in Joined Cases C‑156/22 to C‑158/22, TAP Portugalv flightright GmbH and Myflyright GmbH, on the interpretation of Article 5(3) of Regulation (EC) No 261/2004. The requests have been made in proceedings between TAP Portugal (“TAP”), on the one hand, and flightright GmbH(“flightright”) and Myflyright GmbH (“Myflyright”), on the other, concerning the right of passengers to compensation under Regulation No 261/2004, following the cancellation of a flight due to the unexpected death of the aircraft’s co-pilot shortly before the scheduled departure of the flight.

On 17 July 2019, TAP was to operate a flight from Stuttgart to Lisbon with a departure scheduled at 6.05. At 4.15 on the same day, however, the co-pilot who was to operate the flight concerned was found dead in his hotel bed. Shocked by this event, therefore, the whole crew declared itself unfit to fly, and as no replacement staff was available outside TAP’s base the 6.05 flight was cancelled. Subsequently, a replacement crew left Lisbon bound for Stuttgart at 11.25 and arrived there at 15.20, with the passengers being next transported to Lisbon on a replacement flight scheduled at 16.40.

After refusing to pay flightright and Myflyright the compensation provided for by Regulation No 261/2004, TAP was ordered by the Amtsgericht Nürtingen (Local Court of Nürtingen) to do so on the ground that, like an unexpected and sudden illness, the unforeseeable and sudden death of a crew member is not an external event affecting the carrier because it is one of the risks inherent in the air carrier’s activities. Therefore, TAP brought an appeal before the Landgericht Stuttgart (Regional Court of Stuttgart; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether 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, falls within the concept of “extraordinary circumstances” within the meaning of that provision.

According to the Court, where the absence is due to the unexpected death of a member of staff whose presence is essential to the operation of a flight and which occurred shortly before its departure, such a situation, however tragic and final it may be, is no different, from a legal point of view, from that in which a flight cannot be operated because such a member of staff has unexpectedly fallen ill shortly before the departure of the flight. Thus, it is the very absence, due to illness or death, of one or more crew members, even if it was unexpected, and not the specific medical cause of that absence that constitutes an event inherent in the normal exercise of that carrier’s activity, with the result that the carrier must expect such unforeseen events to arise in the context of planning its crews and the working hours of its staff.

Marco Stillo