TAP Portugal v flightright GmbH and Myflyright GmbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:393
• Date: 11 May 2023
• Docket Number: C-156/22,C-158/22
• Celex Number: 62022CJ0156
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

11 May 2023 (*)

(References for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Compensation to air passengers in the event of cancellation of flights – Article 5(3) – Exemption from the obligation to pay compensation – Concept of ‘extraordinary circumstances’ – Unexpected absence, due to illness or death, of a crew member whose presence is essential to the operation of the flight)

In Joined Cases C‑156/22 to C‑158/22,

THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Landgericht Stuttgart (Regional Court, Stuttgart, Germany), made by decisions of 3 February 2022, received at the Court on 17 February 2022, in the proceedings

TAP Portugal

v

flightright GmbH (C‑156/22),

Myflyright GmbH (C‑157/22 and C‑158/22),

THE COURT (Third Chamber),

composed of K. Jürimäe, President of the Chamber, M. Safjan (Rapporteur), N. Piçarra, N. Jääskinen and M. Gavalec, Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– TAP Portugal, by K. Brecke, B. Liebert and U. Steppler, Rechtsanwälte,

– flightright GmbH, by M. Michel and R. Weist, Rechtsanwälte,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Portuguese Government, by P. Barros da Costa, C. Chambel Alves, L. Guerreiro and P. Pisco Santos, acting as Agents,

– the European Commission, by G. Braun, G. Wilms and N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 February 2023,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 5(3) 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, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2 The requests have been made in proceedings between TAP Portugal (‘TAP’), on the one hand, and flightright GmbH (Case C‑156/22) and Myflyright GmbH (Cases C‑157/22 and C‑158/22), on the other, concerning the right of passengers to compensation under Regulation No 261/2004, following the cancellation of a flight due to the unexpected death of the aircraft’s co-pilot shortly before the scheduled departure of the flight.

Legal context

3 Recitals 1, 14 and 15 of Regulation No 261/2004 state:

‘(1) Action by the [European] Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

…

(14) … obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.

(15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.’

4 Article 5 of that regulation, headed ‘Cancellation’, provides:

‘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...