The European Court of Justice has recently ruled in the Case 405/23 – Touristic Aviation Services that the fact of there being an insufficient number of staff of the airport operator responsible for loading baggage onto planes may constitute an “exceptional circumstance”.

• Main dispute and questions referred to preliminary ruling

On 4 July 2021, the arrival of a flight which had departed from Cologne Bonn airport (Germany) and was destined for Kos airport (Greece), operated by TAS, was delayed by 3 hours and 49 minutes.

That delay was due to the following reasons:

• First, the preceding flight had already been delayed by 1 hour and 17 minutes because of a shortage of staff responsible for checking in passengers.
• Secondly, the loading of baggage onto the plane had been slowed down as there had also been an insufficient number of staff of the airport operator responsible for that service, which gave rise to an extra delay of 2 hours and 13 minutes.
• Thirdly, the weather conditions arising after the doors were closed also delayed the flight by 19 minutes.

A certain number of passengers affected by that delay assigned their possible rights to compensation to Flightright. That company brought an action against TAS before the German courts, claiming that that delay was attributable to TAS and could not be explained by extraordinary circumstances.

Under EU law, an airline company is not required to pay compensation in relation to a long delay, that is to say a delay of more than three hours, if it can prove that the delay was caused by ‘exceptional circumstances’ which could not have been avoided even if all reasonable measures had been taken.

The German court before which the case was brought asks the Court of Justice whether the shortage of staff of the airport operator responsible for loading baggage onto planes may constitute an “exceptional circumstance”.

• Ruling of the European Court of Justice

According to the Court, the fact of there being an insufficient number of staff of the airport operator responsible for loading baggage onto planes may constitute an “exceptional circumstance”. It also states that an “exceptional circumstance” arises where, first, the event is not, by its nature or origin, inherent in the normal exercise of the activity of the airline company and, secondly is beyond its actual control.

Nonetheless, to be exempted from its obligation to pay compensation to passengers provided for in Art. 7 of Regulation (EC) 261/2004, the Court states in paragraph 30 that the air carrier whose flight has experienced a long delay on account of such an extraordinary circumstance is required to prove that:

• That circumstance could not have been avoided even if all reasonable measures had been taken and
• The air carrier did adopt measures appropriate to the situation to avoid the consequences thereof.

Thus, it is for the German court to assess whether those two conditions are satisfied. Accordingly, it must, first, determine whether the failures in the baggage loading operations must be regarded as general failures. If that were the case, those failures would not be capable of constituting an event which is inherent in the normal exercise of the activity of the airline company.

Secondly, it must determine whether those failures were beyond TAS’s control. That would not be the case, in particular, if TAS was able to exercise effective control over the airport operator.

Even if the German court were to determine that the shortage of staff at issue constitutes and “extraordinary circumstance”, TAS would, in order to be exempted from its obligation to pay compensation to passengers, also have to show, first, that that circumstance could not have been avoided even if all reasonable measures had been taken, and, secondly, that it adopted all measures appropriate to the situation to remedy the consequences stemming from it.