Workload problems in the air, nothing out of ordinary - CJEU in TAP Portugal (C-156/22 to C-158/22)

In a judgment issued today the CJEU had another chance to restrictively interpret the concept of 'extraordinary circumstances' from Regulation 261/2004. If extraordinary circumstances occur, this limits the airlines' obligation to compensate passengers of cancelled or delayed flights. 

By Andrés Dallimonti on Unsplash

In TAP Portugal judgment (joined cases C-156/22 to C-158/22) an early morning flight from Stuttgart (Germany) to Lisbon (Portugal) was cancelled due to the death of a co-pilot, which occurred earlier on the same day. Unsurprisingly, the whole crew was unfit to fly and since TAP does not have a base in Stuttgart, the replacement flight with a new crew was only managed to be arranged for late afternoon that day. The referring court found disparities between the application of the concept of 'extraordinary circumstances' to situations of unexpected illness of crew members by national courts and asked CJEU for guidance. 

Previous case law interpreted the notion of 'extraordinary circumstances' restrictively as: 1) not inherent in the normal exercise of air carrier's activity AND, 2) beyond that carrier's actual control (paras 18-19, see e.g. our comment on Airhelp case). Unsurprisingly, the CJEU declares workload planning for crew members as falling within the normal exercise of the air carriers' activity (para 21). And anyone who has ever managed staff knows that this includes anticipating and resolving unexpected absences, although luckily usually resulting from less extreme circumstances (para 22). Legally speaking, as CJEU emphasises, the reason for the unexpected absence makes no difference to the fact that the air carrier should anticipate dealing with unexpected absences (para 23). It is also irrelevant whether the absent crew member recently had been cleared medically, as unexpected illness or death may happen at any time (as morbid of a remark as it is true, para 24; this reasoning is also analogous to the one on technical defects of airplanes not constituting extraordinary circumstances even if the defect occurred in plane parts that were regularly maintained and recently checked, see e.g. van der Lans case). This means that the first condition to perceive this situation as qualifying as an extraordinary circumstances is not fulfilled. 

The CJEU consistently limits then the scope of application of the 'extraordinary circumstances', ensuring wide scope of protection offered to passengers of cancelled or delayed flights. It seems unlikely that airlines could afford to keep spare crew members at different airports to anticipate unexpected illness/death. They could though, of course, consider working with a pool of freelancing crew members, rotating between different airlines, when and as needed. The alternative is to accept the need to pay compensation to passengers, which means adding this to the flight tickets prices and/or re-negotiating insurance policies.