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Aviation law: Recent ECJ judgment - death of a co-pilot is not an extraordinary circumstance

On May 11, 2023, the ECJ issued its judgment in Joined Cases C-156/22 to C-158/22, TAP Portugal v. flightright GmbH and Myflyright GmbH, on the interpretation of the European Air Passenger Rights Regulation (Regulation 261/2004) on the right of passengers to compensation following the cancellation of a flight due to the unexpected death of the co-pilot of the aircraft shortly before the flight's scheduled departure.

Right away: Unfortunately another decision to the disadvantage of the airlines

On July 17, 2019, TAP was scheduled to operate a flight from Stuttgart to Lisbon, which was scheduled to depart at 6:05 am. However, at 4:15 a.m. the same day, the co-pilot who was to operate the flight was found dead in his hotel bed. Under the shock of this event, the entire crew declared themselves unfit to fly, and with no replacement personnel available outside the TAP base, the flight was canceled at 6:05 a.m. The flight was cancelled. As a result, a replacement crew left Lisbon at 11:25 a.m. for Stuttgart, arriving at 3:20 p.m. The passengers were then transported to Lisbon on a replacement flight scheduled for 16:40.

According to Article 5(3) of Regulation 261/2004, an operating air carrier is not obliged to pay compensation if it can prove that the cancellation was due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

Relying on this provision, the airline refused to pay flightright and Myflyright the compensation provided for in Regulation 261/2004. The proceedings continued and the appeals court decided to refer to the ECJ the question whether Art 5(3) of Regulation 261/2004 should be interpreted as meaning that an extraordinary circumstance exists when a flight from an airport outside the base of the operating air carrier is cancelled because a crew member (here: the co-pilot) deployed on that flight, who had passed the required regular medical examinations without any restrictions, suddenly and unforeseeably for the air carrier dies shortly before departure or falls so seriously ill that the flight could not be operated.

The ECJ now answered this question as follows:

Where, as in the present case, the absence occurring shortly before departure is due to the unexpected death of a crew member indispensable to the operation of a flight, this situation, however tragic and final, is no different in legal terms from that of a flight that cannot be operated because a crew member unexpectedly falls ill shortly before departure.

Thus, the absence of one or more crew members due to illness or death, as such, even if unexpected, and not the exact medical cause of that absence, is an occurrence that is part of the normal exercise of the air carrier's activities, so that the air carrier must anticipate such unforeseen events when planning the missions and work schedules of its employees. There was no extraordinary circumstance.

The fact that such an unexpected absence occurred even though the crew member concerned had passed the regular medical examinations required by the applicable regulation without any restrictions did not change this. Any person, even if he or she has successfully passed regular medical examinations, may unexpectedly fall ill or die at any time, the court ruled.

Attorney for aviation law

Attorney at Law Dr. Simon Harald Baier LL.M. advises on all questions of aviation law and represents airlines in the defense of air passenger claims.

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