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

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).