Staff shortages at the airport and compensation for delayed flights. The case went to the CJEU

Air passengers who arrive at their destination within the European Union with a delay of at least three hours can claim compensation from the carrier if it is responsible for the delay.

Flight delay compensation

Passengers are entitled to compensation when:

• at least one of the airports – take-off or landing – is located in the European Union and the flight is operated by an EU-registered carrier

• the departure airport is located in the European Union and the flight is operated by a carrier not registered in the EU

However, not every delay gives you a chance to receive compensation: airlines are exempt from liability if it was impossible to stick to the schedule due to extraordinary circumstances. These include bad weather, the threat of a terrorist attack or a bird strike. Therefore, a delay exceeding three hours does not automatically mean that compensation will be paid – in each situation the actual cause of the delay is investigated.

A passenger for whom the airline has organized an alternative flight will not be entitled to compensation. Offering a hotel when you have to wait several hours for the next flight does not exempt you from paying compensation as long as the airline is responsible for the delay. The aggravating circumstances include primarily: delay due to the poor condition of the aircraft, insufficient number of crew or a strike by airline employees.

Strike of airport employees and air traffic controllers and compensation for delayed flights

A strike by airport employees is a different matter: it is a circumstance that excludes the carrier's liability. It is responsible for its own crews, but not for flight controllers or employees accepting travelers' luggage. There seemed to be agreement on this, and yet the issue concerned the carrier's liability in the event of a flight delay due to insufficient baggage loading teams.

The plaintiff in the case that ended up in the CJEU was Flightright, which fights for compensation for delayed flights on behalf of customers. The case concerned the delay of a flight from Cologne-Bonn airport in Germany to the Greek island of Kos in 2021. The flight was operated by TAS airlines. The flight dealt with by the CJEU was delayed by 3 hours and 49 minutes, which was caused by three different problems: lack of staff responsible for checking in passengers, prolonged loading of luggage (due to an insufficient number of employees) and weather conditions. The latter circumstance delayed the start by 19 minutes, so it had no major impact on the final time of arrival at the destination.

CJEU on compensation for a delayed flight

However, TAS Airlines refused to pay compensation, pointing out that the delay was the result of extraordinary circumstances, including staff shortages at the airport. The case went to a German court, and the Court of Justice of the EU asked the Court of Justice of the EU to interpret Regulation No. 261/2004, which lays down the rules for compensation and assistance for passengers in the event of cancellation or long delay of flights.

The Court held that the lack of airport staff may constitute an “extraordinary circumstance” which excludes the airline's liability. The CJEU recalled that an extraordinary circumstance exists when an event – neither by its nature nor by reason of its source – is not appropriate for normal exercise of the air carrier's business and is beyond its effective control

It is for the national court to assess whether this was indeed the case in the situation at issue.