C-156/22 to C-158/22 · 2023 · EC 261
TAP Portugal v flightright GmbH and Myflyright GmbH
The sudden death of a crew member shortly before departure is not an extraordinary circumstance. The Court held on 11 May 2023 that the unexpected absence of staff essential to a flight, through illness or death, is intrinsically linked to crew planning and working hours, so it stays within Art. 5(3) even where the loss is tragic and the rest of the crew is declared unfit to fly.
REVIEWED AGAINST RULE SET V6 AND THE CITED PRIMARY SOURCES · UPDATED 7 AUGUST 2026
- COURT
- Court of Justice of the European Union (Third Chamber)
- CASE NUMBER
- C-156/22 to C-158/22
- JUDGMENT
- 11 May 2023
- CITATION
- ECLI:EU:C:2023:393
What the case was about
A Stuttgart to Lisbon flight on 17 July 2019 was due out at 6.05; the co-pilot was found dead in his hotel at 4.15.
The shocked crew declared itself unfit, no replacement staff were available outside TAP's base, and passengers travelled on a 16.40 replacement flight.
The German first instance court ordered compensation, treating sudden crew loss as a risk inherent in operating an airline.
What it changed
- It aligned the EU position with the UK Supreme Court's Lipton on crew sickness: staffing risk stays with the airline however unforeseeable the individual absence.
- Regular medical clearance changes nothing, because anyone can fall ill or die unexpectedly.
- The Court did not reach the second limb: once an event is inherent in the activity, control and avoidability no longer arise.
SOURCES
- Joined Cases C-156/22 to C-158/22 TAP Portugal v flightright and Myflyright, judgment of 11 May 2023 (ECLI:EU:C:2023:393) · EUR-Lex · checked 7 August 2026
- Regulation (EC) No 261/2004, Art. 5(3) · EUR-Lex · checked 7 August 2026