ECJ: Compensation for Cancelled Flight Due to Co-Pilot’s Death

Jun 2, 2023 Benn-Ibler Rechtsanwälte

The cancellation of a flight due to the unexpected death of the co-pilot does not exempt the operating air carrier from its compensation obligation towards the passengers. This was decided by the European Court of Justice (hereinafter ECJ), citing the fact that the death of the co-pilot, albeit a very tragic circumstance, did not constitute an extraordinary circumstance and was to be treated merely as an unexpected illness.

The case in question involved a flight from Stuttgart to Lisbon. The Portuguese airline’s co-pilot was found dead in his hotel room on the morning of the flight. Shocked by this event, the entire crew reported themselves unfit to fly. A replacement crew then flew the passengers to Lisbon several hours later. A legal service provider sued for compensation under the assigned rights of some of the passengers because the Portuguese airline refused to pay compensation under the Air Passenger Rights Regulation, claiming that the death was an extraordinary circumstance, which supposedly relieved the company of its obligation.

In this regard, the ECJ ruled as follows, sharing the view of the ECJ Advocate General Medina expressed in her opinion: Any measures affecting an air carrier’s employees with regard to crew planning and staff working hours fall within the normal exercise of an undertaking’s activities. This includes managing an unexpected absence of one or more employees due to illness or death, even shortly before a scheduled departure. The death of a crew member is thus not an extraordinary circumstance that would preclude compensation obligation under the Passenger Rights Regulation.

In the view of the ECJ, an unexpected death of a crew member, however tragic, cannot be legally distinguished from that of a mere illness. The fact of the very absence of a crew member and not the specific medical cause of that absence constituted an event inherent in the normal exercise of an air carrier’s activity.

ECJ, C-156/22 (11.05.2023)