Balancing Consumer Rights with Airline Operations: A Critical Review of TAP Portugal and its Implications

In today’s world of air travel, the balance between passenger rights and airline obligations is beyond debate: grounded in solid consumer protection principles, passengers expect airlines to adhere to service standards and provide compensation in cases of disruption. However, this level of protection often places significant strain on airlines’ ability to operate efficiently and may ultimately result in unintended consequences for consumers. In TAP Portugal v. Flightright GmbH and Myflyright GmbH (Joined cases C-156/22, C-157/22 and C-159/22) (“TAP Portugal”) the ECJ recently ruled that the sudden death of a co-pilot and the consequent incapacitation of the cabin crew did not qualify as an “exceptional circumstance” that would exempt the airline from its compensation obligations. It follows that to avoid any disruption, in this instance a lengthy delay, the air carrier should have promptly replaced the entire flight crew. This would require maintaining one or more full backup crews on standby, which is a logistical and financial burden unsustainable as a standard practice. In light of this ruling and the broader trend it falls under, it becomes increasingly necessary to reassess where to strike the balance between consumer rights and the operational demands of airlines.

EU Airline Compensation Rules

EU Regulation 261/2004 (“the Regulation”) aims to ensure a “high level” of protection for airline passengers (Recital 1). Airlines are required to provide compensation and assistance if a flight is delayed for more than three hours, cancelled without sufficient notice, or if boarding is denied due to overbooking (Article 5(3)). An exemption exists in cases of “extraordinary circumstances,” referring to events that are both beyond the airline’s control and that are not inherent to its normal operations (ex multis, KU and Others v SATA International – Azores Airlines SA (C-308/21), para 20). These can include, according to Recital 14 of the Regulation, natural disasters, strikes by air traffic controllers, or severe weather conditions. The Regulation, however, does not expand the meaning of “extraordinary circumstances” beyond this closed list. The lack of a comprehensive definition has spurred debate and litigation, with the ECJ either adhering to the list under Recital 14 or applying the principle of “ordinary meaning in everyday language,” to determine the nature of the events on a case-by-case basis (Wallentin-Hermann v Alitalia - Linee Aeree Italiane SpA (C-549/07), paras 17, 23, and 36). 

The TAP Portugal Case: Facts and Ruling

The TAP Portugal case revolves around the co-pilot of a TAP Portugal flight who tragically passed away shortly before the scheduled departure. This event left the entire crew too shaken to operate the flight, resulting in a delay of over ten hours as the airline rushed to find replacements. The affected passengers sought compensation under Regulation 261/2004, but TAP Portugal rejected the applications, arguing that the death of the pilot should be considered an “extraordinary circumstance”, akin to the list of unforeseeable events under Recital 14 of the Regulation. The ECJ ruled against TAP Portugal, reasoning that, while tragic and rare, the death of a pilot is connected to the normal operations of an airline and cannot be considered differently from an illness. In this vein, the Court highlighted that airlines should be able to anticipate such events when managing staff working hours and planning crew schedules (para 23).

A Strong Consumer Protection Trend in EU Case Law

The TAP Portugal decision aligns with a broader trend within EU case law that tends to prioritize consumer protection over corporate interests across a number of sectors, including financial services, product liability, and, naturally, travel and transport. The ECJ has in fact consistently relied on the principle that “the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge” (Ernst Georg Radlinger and Helena Radlingerová v Finway a.s. (C-377/14) para 63) and is therefore entitled to stronger safeguards. The importance of a superior protection has also been increasingly emphasized in the context of the digital environment, as seen in Verein für Konsumenteninformation v Sofatutor GmbH (C-565/22). This approach is deeply rooted in the EU’s commitment to upholding the rights of individuals in the marketplace, ensuring fair treatment while promoting transparency and accountability, as underscored in the 2020 New Consumer Agenda. However, the ECJ’s ongoing stance on airline responsibilities in cases of flight disruption raises concerns of proportionality, particularly in connection to the burdens that may be—directly or indirectly—imposed on air carriers. Strict compliance with all EU compensation rules could effectively result in major operational challenges for airlines, increase costs, and potentially have an adverse impact on the quality and affordability of air travel, ultimately harming both consumers and carriers. The concept of proportionality has also been widely examined in the context of Article 16 of the EU Charter of Human Rights (EUCHR), which affirms the right to freely conduct a business activity in accordance with EU and national laws. While this right reflects the EU’s ordoliberal tradition of balancing public policy objectives with a profitable conduct of businesses, the ECJ has regularly justified proportionate infringements on Article 16 EUCHR in the interest of consumer protection (e.g. McDonagh v Ryanair Ltd (C-12/11); and Société Neptune Distribution v Ministre de l'Économie et des Finances (C-157/14)).

The Challenge of Defining Extraordinary Circumstances

National courts have often deferred cases to the ECJ concerning compensation claims under EU Regulation 261/2004, many of which involved delays or cancellations caused by a pilot or cabin crew member falling ill. The Court has generally, and justifiably, ruled that illness does not qualify as an extraordinary circumstance, affirming that airlines should be prepared to manage such eventualities. Similarly, in the much-anticipated Lipton and other v BA Cityflyer Ltd (EWCA Civ 454) case, the UK Supreme Court ruled that a pilot’s illness arising shortly before departure should be easily anticipated and managed, as is expected in any corporate organizations, and therefore cannot legitimize flight cancellation under Retained EU law. However, the sudden death of a pilot and the incapacitation of the entire cabin crew seem to present a different set of considerations. Unlike employee illness, death is inherently rarer and less predictable. Its impact becomes even more significant—and even harder to foresee—when it affects an entire aircrew, as such disruptions cannot be managed in the same way as standard contingencies. Requiring airlines to compensate passengers for delays caused by what is, in fact, an extraordinary event could impose undue financial constraints on them—regardless of how manageable they may be[1]—and, most importantly, induce the inefficient standardization of operational burdens, as would be maintaining multiple backup pilots and crew members in every major area served by the airline. This could result in either additional costs for airlines that would inevitably be passed on to passengers; or in strategic non-compliance that would similarly weaken safeguards and erode passenger trust. Consumer protection is undermined in either scenario. A promising development is nevertheless found in D.S.A. v P.S.A. (C-411/23), a case decided in June 2024 in which an engine malfunctioning was confirmed to fall under the concept of “extraordinary circumstances”. The ECJ held that to avoid compensation duties, the air carrier (P.S.A.) must adopt all reasonable measures to prevent both the occurrence and the consequences of the extraordinary events, such as maintaining a backup fleet, provided that this was “technically and economically feasible” (para 53). While it remains uncertain whether this will set a strong precedent, the decision suggests that resource-intensive activities—as is maintaining even a modest backup fleet of commercial airplanes—can only be expected of airlines if they can be executed efficiently and in proportion to the benefits they provide to passengers.

The Need for a Balanced Approach

Given the reasoning above, the challenge for courts and regulators is to strike a fairer balance between protecting consumer rights and operational standards imposed on or induced in airlines. One possible solution would entail the expansion of the current definition of “extraordinary circumstances” under EU Regulation 261/2004, to create a more nuanced framework that distinguishes between different types of unforeseeable events. In this context, developing operational standards for airlines would also prove highly beneficial. Such standards would provide clarity and predictability for both consumers and businesses, ensuring that passenger rights are protected while offering airlines practical guidelines to manage and mitigate disruptions effectively. This approach would contribute to maintain a more proportional consideration of all interest involved, while respecting EU’s public policy priorities.

[1] In this case, the overall compensation net of legal fees amounts to a minimal fraction compared to the 2023 TAP Portugal net income surpassing EUR 177 million. See Transportes Aéreos Portugueses, S.A., Earnings Release – Full Year 2023.