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Is crew sickness an extraordinary circumstance? What the Court of Justice decided

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Réponse rapide

No. On 11 May 2023 the Court of Justice ruled that the unexpected absence of a crew member whose presence is essential to the flight — through illness, or even death — shortly before departure is not an extraordinary circumstance under Article 5(3) of Regulation 261/2004 (Joined Cases C-156/22 to C-158/22, TAP Portugal). Managing crew absence is part of crew planning, which is inherent in running an airline. A cancellation, or an arrival 3 hours or more late, caused by crew sickness is therefore compensable — €250 to €600 per passenger by distance — unless a different ground applies. For UK261 flights the ruling does not bind UK courts, which may still take it into account.

Puis-je obtenir une indemnisation pour une perturbation due à manque ou maladie d'équipage ?

Oui, dans la plupart des cas : manque ou maladie d'équipage n'est pas une circonstance extraordinaire, donc l'indemnisation forfaitaire (250 €–600 € par passager) est due pour un retard à l'arrivée de 3 heures ou plus ou une annulation annoncée moins de 14 jours avant.

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  • Motif : Manque ou maladie d'équipage

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Réponse directe

En bref
No. The unexpected absence of an essential crew member through illness or death shortly before departure is not an extraordinary circumstance (Court of Justice, TAP Portugal, C-156/22 to C-158/22, 11 May 2023).
Montant
€250 – €600per passenger by distance, when the flight was cancelled at short notice or arrived 3 hours or more late (UK261: £220 – £520)
Pourquoi
Crew planning and working hours are part of the normal running of an airline, so a crew member's sudden absence is inherent in its activity — the first of the two cumulative conditions of Article 5(3) fails.
Ce qui peut changer la réponse
  • The arrival delay at the final destination was under 3 hours.
  • The cancellation was announced 14 days or more ahead, or with a re-routing inside the legal windows.
  • The airline relies on a different, genuinely external cause as well.
  • The flight falls outside Article 3 (e.g. a non-European airline flying into Europe).
  • A UK261 flight: the ruling is persuasive, not binding, in UK courts.
Vérifiez votre vol
Vérifier mon vol
Source officielle
Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — European Parliament and CouncilDernière vérification à la source le 23 septembre 2026

What the Court decided

The case began with a TAP Portugal flight from Stuttgart to Lisbon on 18 July 2019. Early that morning the co-pilot was found dead in his hotel; the rest of the crew declared themselves unfit to fly, no replacement crew was available outside TAP’s base, and the flight was cancelled. A replacement crew flew in from Lisbon and the passengers left on a replacement flight that afternoon. TAP refused compensation, arguing that the sudden death was an extraordinary circumstance.

The Court of Justice disagreed. Its reasoning, in four steps:

  1. Two conditions, both required. An extraordinary circumstance is an event that is not inherent in the normal exercise of the airline’s activity and beyond its actual control. The concept is read strictly, because it is an exception to the passenger’s right to compensation.
  2. Crew absence is part of running an airline. Measures relating to staff — including crew planning and working hours — belong to the airline’s normal activity. Airlines are, “as a matter of course”, faced with a crew member’s unexpected absence through illness or death, including shortly before departure.
  3. The medical cause does not matter. A death is legally no different from a sudden illness: it is the absence itself that is inherent. Passing the regular medical examinations changes nothing — anyone can fall ill.
  4. The measures the airline took were not examined. Because the first condition failed, the Court did not need to ask whether TAP could have avoided the cancellation.

The operative part: the unexpected absence — due to illness or death — of a crew member whose presence is essential to the operation of a flight, which occurred shortly before the scheduled departure, does not fall within the concept of extraordinary circumstances.

What it means for your claim

  • A refusal that names crew sickness does not, by itself, exempt the airline from the fixed compensation.
  • It does not matter how sudden the illness was, or whether the airline had standby crew: the defence fails before that question.
  • Meals, refreshments, a hotel when an overnight stay became necessary, transfers and two calls or e-mails are owed whatever the cause (Article 9) — and reimbursed if the airline did not provide them.

The facts that still change the outcome

The ruling settles the cause. The other conditions of the Regulation still apply:

  • Delay under 3 hours at the final destination. Fixed compensation for a delay starts at 3 hours, measured when the aircraft door opened (Germanwings v Henning, C-452/13).
  • Early notice of a cancellation. A cancellation announced 14 days or more before departure — or with a re-routing inside the Article 5(1)© windows — carries no fixed compensation. The airline has to prove when it told you.
  • Scope. The flight must depart from the EU/EEA, Switzerland or the UK, or arrive there on an airline licensed there (Article 3).
  • A different cause. If the airline relies on something else as well — an air-traffic-control restriction, say — that cause is tested on its own.
  • UK and Swiss flights. The judgment was given after 31 December 2020. Under section 6 of the European Union (Withdrawal) Act 2018, UK courts are not bound by it but may have regard to it. In Switzerland, Court of Justice rulings given after the 1999 air-transport agreement are guidance for the courts.

Crew shortages, duty limits and crew strikes

The ruling is about a crew member’s illness or death. Its reasoning — that crew planning and working hours are part of the airline’s normal activity — points the same way for rostering shortages and crews that run out of legal duty hours, but Horvera has no separate Court of Justice ruling on those on file, and says so. Strikes by the airline’s own crew are covered by a different judgment: Airhelp v SAS (C-28/20) held that they are not extraordinary either. The strike guide has the detail.

What to do next

  1. Not claimed yet? Claim in writing from the operating airline — the free check writes the letter from your flight’s facts.
  2. Refused for crew sickness? Reply once, citing TAP Portugal (C-156/22 to C-158/22), and ask whether the airline relies on anything other than the absence; give it 14 days.
  3. Still refused, or no answer? Refer the claim to the ADR scheme or the enforcement body of the departure country — in Spain AESA, in the UK AviationADR or CEDR for member airlines. The ADR guide lists them.
  4. Watch the time limit. It is national law, from one to six years depending on the country (time limits).

Questions et réponses

Can an airline refuse compensation because a pilot was sick?

Not on that ground alone under EU261. The Court of Justice held in TAP Portugal (C-156/22 to C-158/22) that the unexpected absence of a crew member essential to the flight, through illness or death, shortly before departure is inherent in running an airline and so is not an extraordinary circumstance. Compensation is due if the other conditions are met.

Conditions
  • A cancellation at short notice, or an arrival 3 hours or more late at the final destination
  • A flight within the Regulation's scope (Article 3)
Exceptions
  • A different, genuinely external cause the airline also proves
  • UK261 flights: the 2023 ruling is persuasive in UK courts, not binding
Exemple

A Lisbon → Frankfurt flight is cancelled on the morning of departure because the captain fell ill; the passengers arrive five hours late on a replacement flight. The airline owes €400 per passenger (1,500–3,500 km) — the illness is not a defence.

Montant possible
€250–€600 per passenger by distance (UK261: £220–£520).
Étape suivante
Check my case
Source officielle
Joined Cases C-156/22 to C-158/22 TAP Portugal — unexpected absence of crew is not an extraordinary circumstance

Does it matter that the airline had no standby crew?

No. The Court did not reach the question of reasonable measures: because a crew member's absence is inherent in the airline's activity, the first condition of Article 5(3) fails and the airline cannot rely on the exemption, whatever it did or could not do to replace the crew member.

Conditions
  • The airline's refusal rests on the crew member's absence
Exceptions
  • The airline proves a separate extraordinary cause that affected the flight
Étape suivante
Analyze my rejection
Source officielle
Joined Cases C-156/22 to C-158/22 TAP Portugal — unexpected absence of crew is not an extraordinary circumstance

Les motifs invoqués par les compagnies, et ce que chacun vaut

Airline rejected your claim because of a strike

Who was striking decides. A strike by the airline's own pilots, cabin crew or ground staff — even a lawful, union-organised one — is inherent in running an airline and is not extraordinary (Krüsemann, Airhelp v SAS). A strike by air-traffic controllers, airport security or a third-party handler can be.

Ce qu’il faut demander à la compagnie, par écrit
  • Whose staff were on strike, employed by whom, and on which dates and hours?
  • Was your specific flight on the list of flights the strike cancelled or held, or was it cut to protect the rest of the schedule?
  • For a third-party strike: why could you not be re-routed, including on another airline?
Quand ce motif tient
It holds for an ATC, airport or third-party handler strike that actually held your flight and left no re-routing option. It does not hold for the airline's own staff, for a strike that ended before your departure, or for "operational reasons" that turn out to be a rostering problem.
Prochaine étape
If the strike was the airline's own, reply citing Airhelp v SAS (C-28/20) and escalate after 14 days; if it was a third party, ask for the strike notice and the re-routing options that were considered.

Airline blamed crew sickness

The airline says a pilot or cabin crew member fell ill, or died, shortly before departure. The Court of Justice has ruled that the unexpected absence — through illness or death — of a crew member essential to operating the flight, arising shortly before departure, is not an extraordinary circumstance (TAP Portugal, C-156/22 to C-158/22, 11 May 2023): managing crew absence is part of crew planning, inherent in running an airline. Because that first condition fails, the Court did not need to look at the measures the airline took.

Ce qu’il faut demander à la compagnie, par écrit
  • Is the airline relying on anything other than the crew member's absence — and if so, on what, and with what record for flight [number] on [date]?
  • What time did the flight finally arrive at [final destination], or when were you told it was cancelled?
Quand ce motif tient
On that ruling, crew illness alone does not exempt the airline. The refusal can still be right on a different ground: an arrival delay under three hours, a cancellation announced 14 days or more ahead, or a flight outside the Regulation. For UK261 cases the ruling (given after 31 December 2020) does not bind UK courts, which may still have regard to it; in Switzerland it is guidance.
Prochaine étape
Reply once citing TAP Portugal (C-156/22 to C-158/22) and asking the questions above with a 14-day deadline; if the airline maintains the refusal, refer the case to the ADR scheme or the enforcement body.

Airline blamed a late incoming aircraft

The airline says your aircraft arrived late from its previous flight. A knock-on delay is judged on its original cause: the Court of Justice has held that an airline may rely on an extraordinary circumstance that affected an earlier flight operated with the same aircraft only if there is a direct causal link between that circumstance and your delay (C-74/19). An ordinary operational delay earlier in the day is not extraordinary.

Ce qu’il faut demander à la compagnie, par écrit
  • What caused the delay of the earlier flight, on which route, and was that cause itself extraordinary?
  • Was it the same aircraft (registration) that then operated flight [number]?
  • Why could the airline not absorb the earlier delay — with a spare aircraft, a schedule buffer, or by re-routing passengers?
Quand ce motif tient
It holds only when the earlier flight was hit by a genuine extraordinary circumstance, the same aircraft operated your flight, and the causal link is direct. It does not hold for "late arrival of the incoming aircraft" with no cause given, or when the original cause was technical, crew or operational.
Prochaine étape
Ask for the root cause of the first delay in the rotation with a 14-day deadline; if the airline does not identify an extraordinary cause, reply that the burden is not discharged and escalate.

Sources

  1. European Community / Swiss ConfederationAgreement between the European Community and the Swiss Confederation on Air Transport (signed 21 June 1999)
  2. Court of Justice of the European UnionCase C-28/20 Airhelp v Scandinavian Airlines — a strike organised by the airline's own staff is not an extraordinary circumstance
  3. Court of Justice of the European UnionCase C-452/13 Germanwings v Henning — "arrival time" is when at least one aircraft door is opened
  4. Court of Justice of the European UnionCase C-12/11 McDonagh v Ryanair — the duty to provide care (meals, accommodation) applies without temporal or monetary limit, even in extraordinary circumstances
  5. Court of Justice of the European UnionJoined Cases C-156/22 to C-158/22 TAP Portugal — unexpected absence of crew is not an extraordinary circumstance
  6. European Parliament and CouncilRegulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights
  7. UK Government — legislation.gov.ukEuropean Union (Withdrawal) Act 2018, section 6 — UK courts are not bound by CJEU decisions made on or after IP completion day (31 December 2020) but may have regard to them

Dernière revue juridique : 25 septembre 2026 · Contenu mis à jour : 25 septembre 2026

Does the airline's reason exempt it?

Enter the flight and paste the airline's explanation. Horvera tests it against the case law — which causes can be extraordinary, what the airline has to prove, and whether its reply proves it.

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