Air passenger compensation for flight delay : can the lack of airport staff constitute an “extraordinary circumstance” ( CJEU 16 May 2024 Touristic Aviation Services Ltd v Flightright GmbH (case C-405/23 ) ?

 

More than twenty years after the entry into force of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, the courts are still debating on its interpretation, and in particular the concept of “extraordinary circumstances” and the interpretation of Article 5(3), which provides that :

 

  1. In case of cancellation of a flight, the passengers concerned shall

[…]

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

 

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival. […]

  1. An operating air carrier shall not be liable to pay the compensation provided for in Article 7 if it can prove that the cancellation was due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

[…] “

As a reminder, this obligation to compensate passengers in the event of flight cancellation applies in the same way in case of flight delays since the Sturgeon ruling, which held in  principle that a delay  of more than three hours on arrival in relation to the time initially scheduled is equivalent to cancellation (CJUE 19 Nov. 2009, Case C-402/07, Sturgeon (Cts) v Condor Flugdienst GmbH ).

The amount of this compensation depends on the flight distance, in accordance with Article 7(1) of this Regulation, which states:

“Where reference is made to this Article, passengers shall receive compensation in an amount fixed at :

  1. a) 250 euros for all flights of 1 500 kilometres or less;
  2. b) 400 euros for all intra-Community flights over 1,500 kilometres and for all other flights between 1,500 and 3,500 kilometres;
  3. c) 600 euros for all flights not covered by points a) or b).

However, again pursuant to Article 5(3), the carrier is not obliged to pay the compensation provided for in Regulation (EC) 261/2004 if it “can prove that the cancellation was due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

This concept of extraordinary circumstances, which allows the carrier to be exempted from its obligation to compensate passengers, is set out in recitals 14 and 15 of the Regulation.

14) As under the Montreal Convention, the obligations of operating air carriers should be limited or their liability exonerated in cases where an occurrence is due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may arise, in particular, in the case of political instability, weather conditions incompatible with the operation of the flight concerned, safety risks, unforeseen failures which may affect the safety of the flight, and strikes affecting the operations of an operating air carrier.

 

(15) Extraordinary circumstances should be considered to exist when an air traffic management decision concerning a specific aircraft on a specific day results in a significant delay, an overnight delay or the cancellation of one or more flights of this aircraft, even though all reasonable measures have been taken by the air carrier to avoid such delays or cancellations.

 

The concept of “extraordinary circumstances”

Despite it has already given rise to numerous rulings of the Court, it is this concept of extraordinary circumstances that the Court was called upon to interpret once again in this case, between Touristic Aviation Services Limited (“TAS”) and Flightright GmbH concerning the compensation sought by Flightright, to which passengers had assigned their rights, from TAS, in its capacity as operating carrier, following the long delay of a flight.

In this case, on July 4, 2021, a flight operated by TAS from Cologne-Bonn airport (Germany) to Kos airport (Greece) was delayed on arrival by 3 hours and 49 minutes.

This delay was due to the fact that, firstly, the previous flight had already suffered a delay of 1 hour and 17 minutes due to a lack of staff responsible for passenger check-in; secondly, the loading of baggage onto the aircraft was slowed down due to the fact that the airport operator’s staff, responsible for this service, were also in short supply, resulting in a further delay of 2 hours and 13 minutes; and thirdly, the weather conditions that occurred after the doors closed delayed take-off by a further 19 minutes.

Although the delay of more than three hours was due to several factors, the question referred to the Court of Justice of the European Union for a preliminary ruling concerns exclusively the delay linked to the lack of staff assigned by the airport operator to the loading of the  baggage  and is whether the lack of staff on the part of the operator of Cologne Bonn Airport, which TAS claims to have caused the long delay of the flight in question, constitutes an “extraordinary circumstance” within the meaning of Article 5(3) of Regulation No 261/2004.

The question referred for a preliminary ruling  by the Landgericht Köln (Regional Court, Cologne)  was as follows:

“Is Article 5(3) of [Regulation No 261/2004] to be interpreted as meaning that a shortage of staff at the airport operator, or at a company commissioned by the airport operator, responsible for handling the baggage loading operations to be provided by that airport operator, constitutes an extraordinary circumstance, within the meaning of that provision, that has an external and uncontrollable effect on the normal activity of the air carrier using that service of the airport operator / company commissioned by that airport operator, or is the loading of baggage by the airport operator / a company commissioned by that airport operator and a shortage of loading staff at that airport operator / company commissioned by that airport operator to be classified as part of the normal exercise of the activity of that air carrier, such that an exculpation as provided for under Article 5(3) of [that provision] can be considered only if the reason for the shortage of staff constitutes an extraordinary circumstance within the meaning of that provision?”

 

In the judgment of May 16, 2024, the Court recalls that, according to settled case-law, the concept of “extraordinary circumstances” within the meaning of Article 5(3) of Regulation No 261/2004 refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that air carrier’s actual control.

Although the Court also recalls that these two conditions are cumulative, it seems that over the years the main criterion used by the Court to consider that an event constitutes an extraordinary circumstance has become whether the event originates inside or outside the air carrier.

Thus, the following events whose origin is “internal” cannot be qualified as extraordinary circumstances :

  • the unexpected death of the co-pilot, as the management of an unexpected absence, due to illness or death, of one or more members of staff whose presence is essential to the operation of a flight, including shortly before the departure of that flight remains intrinsically linked to the question of crew planning and staff working hours, with the result that such an unexpected event is inherent in the normal exercise of the operating air carrier’s activity (CJEU 11 May 2023 in joined cases C-156/22 to C-158/22 | TAP Portugal).

On the other hand, according to the Court of Justice, the concept of extraordinary circumstances includes the occurrence of so-called “external” events resulting from the air carrier’s activity and from external circumstances, which in practice occur more or less frequently, but over which an air carrier has no control, because they are caused by a natural event or by a third party, such as another air carrier or a public or private actor interfering with the air or airport activity, such as :

Then, quite logically, the answer of the European Court of Justice in the latter judgment of May 16, 2024 to the question referred is clear: the fact that the airport operator’s staff responsible for loading baggage onto aircraft was insufficient in number may constitute an “extraordinary circumstance”.

The concept of  “reasonable measures”

However, to the question of whether the air carrier whose flight has been delayed for a long time as a result of such an extraordinary circumstance is relieved of its obligation to pay compensation to passengers the answer is not so clear, since the Court adds that the air carrier must prove that the circumstance could not have been avoided even if all reasonable measures had been taken and that it had taken measures appropriate to the situation in order to avoid its consequences.

The Court is once again reinforcing the burden of proof and the conditions under which the carrier may be exempted from compensation to passengers, even though the situation is beyond its control. Thus, according to the case law of the Court of Justice of the European Union, the carrier must not only take all measures to avoid the circumstance but also all measures adapted to the situation capable of obviating its consequences.

When such an incident occurs, we can legitimately ask ourselves what reasonable measures the airline could have taken to avoid the consequences of this event, which precisely was beyond its effective control. The answer to this question remains uncertain, all the more so since such measures must not lead the company to make sacrifices that would be unbearable in the light of the company’s capabilities at the time, as the Court has already ruled in a case where the extraordinary circumstance in question was the failure of the refueling system (CJUE 7 July 2022 in case SATA International – Azores Airlines SA ° C-308/2).

For example, in the present case, the Court considers that the failures in baggage loading operations at Cologne-Bonn airport were beyond the control of TAS, but the Court very unrealistically imagines that an airline could have avoided the delay in baggage loading by using the services of another service provider.

We can then expect different interpretations within the European Union, depending on the local courts, and uncertainty as to the assessment of the reasonable measures that could be taken by the airlines. To be continued…

 

Emmanuelle Hober Zaffran

emmanuelle@ehz-avocats.com

www.ehz-avocats.com