On 16 May 2024, the Court of Justice handed down its judgment in Case C‑405/23, Touristic Aviation Services Ltd v Flightright GmbH, on the interpretation of Article 5(3) of Regulation (EC) No 261/2004. The request has been made in proceedings between Touristic Aviation Services Ltd (“TAS”) and Flightright GmbH (“Flightright”) concerning compensation claimed by the latter following the long delay of a flight.

On 4 July 2021, the arrival of a flight departed from Cologne Bonn and destined to Kos, operated by TAS, was delayed by 3 hours and 49 minutes due to the fact that i) the preceding flight had already been delayed because of a shortage of staff responsible for checking in passengers, ii) the loading of baggage onto the plane had been slowed down as there had also been an insufficient number of staff of the airport operator responsible for that service, and iii) the weather conditions arising after the doors were closed further delayed the flight. In that context, Flightright, to which a certain number of passengers of the flight in question assigned their rights to compensation, brought an action before the Amtsgericht Köln (Local Court of Cologne) seeking an order that TAS pay an amount of EUR 800 per passenger. 

Since the court upheld that action, TAS lodged an appeal before the Landgericht Köln (Regional Court of Cologne; 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 fact of there being an insufficient number of staff of the airport operator responsible for the operations of loading baggage onto planes may constitute an “extraordinary circumstance” within the meaning of that provision.

According to the Court, the concept of “extraordinary circumstances” within the meaning of Regulation No 261/2004 refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. More particularly, events whose origin is internal must be distinguished from those whose origin is external to the air carrier, a concept encompassing those events which result in part from the latter’s activity and from external circumstances which are more or less frequent in practice but which an air carrier does not control because they arise from a natural event or an act of a third party. All that being said, it is for the referring court to determine, in light of the circumstances of the case in the main proceedings, whether the failures in the baggage loading operations at Cologne Bonn airport were beyond TAS’s control and, if so, whether the latter has shown that those exceptional circumstances could not have been avoided even if all reasonable measures had been taken and whether it adopted measures appropriate to the situation to avoid the consequences thereof.

Marco Stillo