Air Passenger Rights: Dead Pilot an ‘Extraordinary Circumstance’?

Mar 17, 2023 Benn-Ibler Rechtsanwälte

The Advocate General of the European Court of Justice (ECJ) has given her opinion on the question of whether the sudden death of a pilot constitutes an ‘extraordinary circumstance’ within the meaning of the Air Passenger Rights Regulation.

A TAP Portugal flight from Stuttgart to Lisbon had to be cancelled because the co-pilot was found dead in his hotel room two hours before the flight. The crew was in shock and reported unfit to fly. As TAP Portugal did not operate a base in Stuttgart, there was no replacement crew on site. A replacement crew had to be flown in first, which is why the replacement flight finally took off about 10 hours after the scheduled departure time.

Flightright GmbH and Myflightright GmbH claimed compensation for the passengers concerned under Article 5 of Regulation (EU) No 261/2004. TAP Portugal countered that the reason for the cancellation was based on an extraordinary circumstance and that the airline was therefore not obliged to provide compensation.

ECJ Advocate General Medina has recommended the following judgment to the European Court of Justice:

To begin with, airline operating regulations stipulate that at least two pilots must operate a flight. Even if the remaining crew had been fit to fly, without a replacement pilot the flight could not have taken off. The Court should therefore confine itself exclusively to the issue of the death of the pilot and disregard any possible impact on the other crew members.

According to the case law of the ECJ, an ‘extraordinary circumstance’ must fulfil two conditions: It is not part of the normal exercise of the activity of an operating air carrier and it is in no way actually controllable by the operating air carrier.

The Advocate General considers that the absence of a pilot - for whatever reason - and the associated mission planning and risk management are part of everyday business of air carriers. The sudden absence of a crew member should in principle be taken into account in mission planning. 

For this reason alone, this case does not present an exceptional circumstance, even though the deceased pilot had successfully passed his prescribed regular medical examinations without any restriction.

Opinion, C-156/22 (09.02.2023)