EU Advocate General: flight cancellation due to death of pilot requires passenger compensation

A preliminary question before the Court of Justice questions ‘extraordinary circumstance’ liabilities on airlines in lawsuit against TAP after a co-pilot was found dead in his hotel

A TAP Air Portugal airplane during the approach to the Lisbon airport.
A TAP Air Portugal airplane during the approach to the Lisbon airport.Armando Franca (AP)

The unforeseeable death of a pilot before a commercial flight takes off does not exempt the airline from compensating passengers if the flight is cancelled. That is the answer the EU’s Advocate General is proposing to the Court of Justice of the European Union (CJEU) in a case pitting Portuguese airline TAP against three passengers. The Advocate General, an independent figure whose conclusions are not binding on the court but that tend to coincide with the subsequent ruling in most cases, is of the opinion that the conditions of “extraordinary circumstance” – that would negate the need to compensate passengers even if it were an unforeseeable event – are not met in this instance, as personnel management and crew planning are part of the day-to-day business of air carriers.

The facts before the CJEU concern a flight between Stuttgart and Lisbon on July 17, 2019. The departure, scheduled for 6.05 am in the German city, never took place because that morning the co-pilot was found dead in the hotel room where he was staying. The rest of the crew, shaken by the loss of their colleague, refused to fly and, as the route did not depart from a TAP hub, there was no replacement crew. The airline cancelled the flight and sent a replacement crew from the Portuguese capital at 11.25 am.

The flight eventually left Stuttgart over 10 hours later than scheduled. Compensation claims were filed on behalf of three passengers and these were upheld by a German court of first instance. TAP, however, appealed the ruling and referred it to a regional appeals court, which in turn referred the matter to the CJEU for a preliminary ruling. At the root of the case if whether “extraordinary circumstances” can be interpreted as existing under the regulation governing passenger compensation when a flight is cancelled “because a crew member assigned to that flight, who has passed the necessary regular medical examinations, suddenly and unforeseeably on the part of the carrier, shortly before the start of the flight dies or becomes so seriously ill that they are unable to perform the flight.”

The answer put forward by the Advocate General, Latvian lawyer Laila Medina, is that cancellation under such circumstances “does not fall within the concept of ‘extraordinary circumstances’” under European regulation on compensation and assistance to air passengers. Medina’s argument is based on the fact that “according to settled case law” such extraordinary circumstances refer to “events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier responsible for operating a flight [first condition] and are beyond its actual control [second condition].”

“I am of the opinion that the sudden absence of a co-pilot is an ordinary part of the activity of an air carrier in charge of carrying out a flight and said event, regardless of its cause, must be considered inherent to the normal exercise of the activity of the carrier,” Medina said. “Since both requirements are cumulative,” she added, “it will not be necessary to examine the second requirement if the Court of Justice seconds my reasoning.”

An ‘unforeseeable’ event

Medina admits hoever that, in some rulings, the CJEU has examined both circumstances separately. This means that, rather than being cumulative, “it seems that both requirements are, in fact, complementary”. In other words, it would be sufficient for one of them to be met and therefore opens debate over whether the co-pilot’s death also constitutes “an event beyond the carrier’s actual control”. The Advocate General believes that if the death is not due to negligence on the part of the airline but to natural causes, it can be qualified as an “external event” and also “unforeseeable”. But she stressed that it remains to be determined whether it is also something beyond the airline’s control.

Underlining the idea of cumulative requirement, the Advocate General has recommended the CJEU, in its future ruling, should determine that the cancellation of a flight due to the death of a crew member is not an extraordinary circumstance that exempts the airline from compensating passengers. If the Luxembourg court considers otherwise, “it would be necessary to examine the concept of reasonable measures to be taken by an air carrier” in such a situation, such as crew replacement or the transfer of passengers to flights operated by other airlines.

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