Crew illness or death, and how airport staff shortages differ

Where a flight is cancelled, and where it reaches the final destination three hours or more late, Regulation (EC) No 261/2004 may give a right to financial compensation under Article 7. One exception concerns how early you were told: if you are informed of the cancellation at least two weeks before the scheduled time of departure, no compensation is due, whatever the cause. With shorter notice the same applies if you are at the same time offered re-routing close to the original times. If you are told less than seven days before departure, as when a crew member suddenly falls ill, the re-routing must allow you to depart no more than one hour earlier and to reach your final destination less than two hours after the scheduled time of arrival (Article 5(1)(c)). Another exception concerns the cause: under Article 5(3) the operating air carrier avoids paying only if it can prove that the disruption was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The burden of proof therefore lies with the carrier, not with you.

The settled case-law of the Court of Justice of the EU imposes two requirements on such a circumstance: the event must, by its nature or origin, not be inherent in the normal exercise of the carrier's activity, and it must be beyond that carrier's actual control. The conditions are cumulative: both must be satisfied, and their fulfilment is assessed on a case-by-case basis. Since Article 5(3) derogates from the principle that passengers are compensated when their flight is cancelled, the concept must moreover be interpreted strictly.

Under the second condition, control, the Court distinguishes between events whose origin is internal and those whose origin is external. External ones are those that arise from a natural event or an act of a third party: another air carrier, or a public or private operator interfering with flight or airport activity. The line between crew illness and a staff shortage at the airport is nevertheless drawn primarily at the first condition: the carrier's own crew belongs to the normal exercise of its activity, whereas general failures at the airport operator may fall outside it.

The question of crew illness or death was settled by the Third Chamber of the Court of Justice of the EU on 11 May 2023, in Joined Cases C‑156/22 to C‑158/22, TAP Portugal v flightright and Myflyright. The background: on 17 July 2019 TAP was to operate a flight from Stuttgart to Lisbon with departure scheduled at 6.05. At 4.15 that same morning the co-pilot was found dead in his hotel bed. Shocked by the event, the whole crew declared itself unfit to fly, and as no replacement staff was available outside TAP's base the flight was cancelled. TAP refused to pay, relying on Article 5(3).

The Court's answer was short: the unexpected absence, due to illness or death occurring shortly before the scheduled departure, of a crew member whose presence is essential to the operation of the flight does not fall within the concept of extraordinary circumstances.

The reason is that measures relating to the staff of the operating air carrier fall within the normal exercise of that carrier's activities, and that includes measures relating to crew planning and staff working hours. An air carrier may, as a matter of course, be faced in its activity with staff unexpectedly falling ill or dying, including shortly before departure, and must expect such unforeseen events to arise when planning. The Court was explicit on two points. It is the very absence, and not the specific medical cause of it, that constitutes the event. A member of staff who has died is no different, from a legal point of view, from one who has suddenly fallen ill. And the fact that the crew member had fully completed the prescribed medical examinations without restriction changes nothing, since any person may at any time unexpectedly fall ill or die. The first condition was therefore not satisfied, and the Court did not need to examine the second.

On 16 May 2024 the Ninth Chamber of the Court examined the other side of the line, in Case C‑405/23, Touristic Aviation Services v Flightright. A flight from Cologne Bonn to Kos on 4 July 2021 arrived 3 hours and 49 minutes late. The delay had several causes: the preceding flight was already 1 hour and 17 minutes late because of a shortage of staff responsible for checking in passengers, the slow loading of the baggage caused an extra delay of 2 hours and 13 minutes because the airport operator responsible for that service had an insufficient number of staff, and the weather conditions arising after the aircraft doors were closed added a further 19 minutes. The question referred for interpretation concerned only the middle part.

The Court's answer: an insufficient number of staff of the airport operator responsible for the operations of loading baggage onto planes may constitute an extraordinary circumstance. The wording matters: may, not does. The Court left the assessment of the individual case to the national court. It must determine whether the failures in the loading operations were general failures, in which case they are not inherent in the normal exercise of the carrier's activity, and whether they were beyond the operating air carrier's actual control. If the airline was able to exercise effective control over the airport operator, the failures were not beyond its control. If both conditions are met, the national court must also examine whether the carrier has shown that the circumstance could not have been avoided even if all reasonable measures had been taken. The Court also pointed out that the delay could have been avoided if the carrier had been able to use the services of another provider with sufficient capacity at the time when it knew or ought to have known that the airport operator did not have that capacity.