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TAP v flightright (C-156/22 to C-158/22)

A plain-English summary of the Court of Justice of the EU judgment of 11 May 2023: the facts, the question, what was decided and what it means for your claim.

By the EU261 Flight Delay editorial team Last reviewed: Reading time: 4 min How we write our guides

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In short: The unexpected illness or death of an essential crew member shortly before departure is not an extraordinary circumstance.

CaseTAP Portugal v flightright GmbH (C-156/22) and Myflyright GmbH (C-157/22 and C-158/22)
CitationC-156/22 to C-158/22
CourtCourt of Justice of the EU (Third Chamber)
Date
Full textEUR-Lex (Publications Office of the European Union)

The facts

TAP was due to operate a flight from Stuttgart to Lisbon at 6.05 on 17 July 2019. At 4.15 that morning the co-pilot was found dead in his hotel bed. The shocked crew declared themselves unfit to fly, and as no replacement staff were available away from TAP’s base, the flight was cancelled. A replacement crew flew in from Lisbon and the passengers left on a replacement flight scheduled at 16.40.

The passengers assigned their claims to flightright and Myflyright. The Amtsgericht Nürtingen (Local Court, Nürtingen) ordered TAP to pay, and the Landgericht Stuttgart (Regional Court, Stuttgart), hearing TAP’s appeal, referred the question.

The question

Is the unexpected absence, through illness or death, of a crew member essential to operating the flight, shortly before departure, an extraordinary circumstance?

What the Court ruled

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

Paraphrased from the operative part of the judgment. The exact wording is in the full text.

What it means for you

Airlines must plan for crew falling ill or being unable to fly, for example with standby crew. “Crew sickness” is not a valid reason to refuse compensation.

Decided after 2020, this ruling does not bind UK courts. But the UK Supreme Court reached the same result for UK claims in Lipton v BA Cityflyer (2024).

Read more: Extraordinary circumstances · Cancelled flight compensation · Crew shortages and sickness.

Status in the UK

Decided after the end of the Brexit transition period (31 December 2020), so it does not bind UK courts applying UK261, although they may have regard to it. It applies in full to flights covered by EU261 in EU courts.

How EU rulings apply after Brexit is explained on our case-law overview.

This is a plain-English summary written by our editorial team, not legal advice. Judgments turn on their facts, and later rulings can refine them. Before relying on a case in a dispute, read the full judgment or get advice.

  • Lipton v BA Cityflyer ([2024] UKSC 24, 2024) – Pilot illness is not extraordinary (UK Supreme Court)
  • Airhelp v SAS (C-28/20, 2021) – Airline’s own staff strike is not extraordinary
  • Krüsemann v TUIfly (C-195/17 etc., 2018) – Mass crew sick-out (“wildcat strike”) is not extraordinary
  • McDonagh v Ryanair (C-12/11, 2013) – Care is owed even in extraordinary circumstances
  • Sturgeon (C-402/07 and C-432/07, 2009) – A delay of 3 hours or more at arrival gives a right to compensation
  • Wallentin-Hermann (C-549/07, 2008) – Technical problems are normally the airline’s risk; the two-part test

All cases in the library

Sources

  1. Judgment of the Court (Third Chamber), 11 May 2023, Joined Cases C-156/22 to C-158/22, TAP Portugal v flightright and Myflyright – EUR-Lex (Publications Office of the European Union)

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