The cancellation of a flight due to the death of a pilot requires compensation to passengers, according to the EU lawyer

The unforeseeable death of a pilot before flying does not exempt the airline from indemnifying passengers if the trip is cancelled. That is the answer that the General Advocate of the EU proposes to the Court of Justice of the European Union (CJEU) in a case that confronts the Portuguese company TAP with three passengers. The General Counsel, an independent figure whose conclusions are not binding but tend to coincide with the subsequent sentence in most cases, considers that the conditions of “extraordinary circumstance” that would allow avoiding compensation to passengers even if it were an unforeseen event, do not exist. since personnel management and crew planning are part of the day-to-day life of air carriers.

The facts analyzed by the Luxembourg court refer to a flight that was to connect Stuttgart with Lisbon on July 17, 2019. The departure, scheduled for 6:05 a.m. in the German city, never took place because that morning the co-pilot was found dead in the hotel room where he was staying. The rest of the crew, heavily shaken, refused to fly and as the run did not start from a TAP base, there was no replacement crew. The airline canceled the flight and sent a replacement crew at 11:25 a.m. on a flight that left the Portuguese capital at 11:25 a.m. (one hour more in Germany).

Those replacement staff landed in Stuttgart at 3:20 p.m. (local time) and the passengers were transferred to a replacement flight that departed at 4:40 p.m., ie more than 10 hours later than originally planned. Two legal aid companies submitted claims for compensation on behalf of three passengers and were upheld by a German court of first instance. TAP, however, appealed that ruling and took it to a regional appeals court. This body is the one that, in turn, formulated the question for a preliminary ruling on the matter to the CJEU. I wanted to know if it can be interpreted that “there is an extraordinary circumstance”, in accordance with the regulations governing compensation to passengers, when a flight is canceled “because a crew member (in this case, the co-pilot) assigned to said flight, who has passed without restrictions the prescribed regular medical examinations, shortly before the start of the flight, suddenly and unpredictably for the air carrier, dies or falls so seriously ill that he cannot carry out the same”.

But the Advocate General doesn’t appreciate the first one. “I am of the opinion that the sudden absence of a co-pilot is an ordinary part of the activity of an air carrier in charge of carrying out a flight and said event, regardless of its cause, must be considered inherent to the normal exercise of the activity of the carrier. aerial”. “Since both requirements are cumulative,” continues the lawyer, “it will not be necessary to examine the second requirement if the Court of Justice supports my reasoning.”

An “unpredictable” event

But Medina admits that, in some sentences, the European court has examined both circumstances separately. This means that, rather than cumulative, “it seems that both requirements are, in fact, complementary.” In other words, it would be enough for one of them to be fulfilled and for this reason he analyzes whether death also constitutes “an event that is completely beyond the effective control of the carrier.” The General Counsel believes that, in effect, if the death is not due to the airline’s negligence but to natural causes, it can be classified as an “external event” and also “unforeseeable”. But he stresses that it remains to be determined if it is also something that is beyond the control of the airline, for which he points out that the court hearing the case must verify if the airline “complied with all the procedures and safety requirements related to the health of the affected co-pilot, whether the prescribed medical examinations were carried out correctly and whether, during the periodic examinations, there was anything to indicate that the affected co-pilot’s state of health was not good enough to perform his duties”.

For all these reasons, and underlining the idea of ​​cumulative requirements, the Attorney General proposes that the CJEU, in its future ruling, say that the cancellation of a flight due to the death of a crew member is not an extraordinary circumstance that exempts the airline from indemnifying to the passengers. And that, if the court of Luxembourg considers contrary to that criterion that it is indeed an extraordinary circumstance, “it would be necessary to examine the concept of reasonable measures that an air carrier must adopt” in such a situation, such as the replacement of crew (the The letter recalls that due to air regulations that plane could not take off without two pilots in the cabin) or the reassignment of passengers to flights with other companies.

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