Judgment;Summary — ECLI:EU:C:2024:408
Date: 2024-05-16
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-405/23 – 1 
Case C-405/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of Receipt: 
3 July 2023 
Referring court: 
Landgericht Köln (Cologne Regional Court, Germany) 
Date of the decision to refer: 
22 June 2023 
Defendant and appellant: 
Touristic Aviation Services Limited 
Applicant and respondent: 
Flightright GmbH 
  
Subject matter of the case in the main proceedings 
Air transport – rights of passengers – Regulation (EC) No 261/2004 – 
compensation to passengers in the event of long delay of flights – shortage of 
baggage loading staff – extraordinary circumstances, which could not have been 
avoided even if all reasonable measures had been taken 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Question referred 
Is Article 5(3) of Regulation (EC) No 261/2004 to be interpreted as meaning that a 
shortage of staff at the airport operator, or at a company commissioned by the 
airport operator, responsible for handling the baggage loading operations to be 
provided by that airport operator, constitutes an extraordinary circumstance, 
within the meaning of that provision, that has an external and uncontrollable effect 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-405/23 
 
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on the normal activity of the air carrier using that service of the airport operator / 
company commissioned by that airport operator, or is the loading of baggage by 
the airport operator / a company commissioned by that airport operator and a 
shortage of loading staff at that airport operator / company commissioned by that 
airport operator to be classified as part of the normal exercise of the activity of 
that air carrier, such that an exculpation as provided for under Article 5(3) of 
Regulation (EC) No 261/2004 can be considered only if the reason for the 
shortage of staff constitutes an extraordinary circumstance within the meaning of 
that provision? 
Provisions of EU law cited 
Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling 
market at Community airports 
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 
Brief summary of the facts and procedure 
1 The reference for a preliminary ruling is made in the context of a dispute between 
the parties concerning a compensation payment in the total amount of EUR 800, 
as claimed by the applicant on the basis of the rights subrogated by the passengers 
concerned. Those passengers were booked on flight XR 1092 of 4 July 2021 from 
Cologne/Bonn to Kos, operated by the defendant, which reached the airport of 
arrival with a delay of approximately three and a half hours. 
2 The Amtsgericht (Local Court) upheld the action. It left open the question of 
whether the long delay was due to an extraordinary circumstance because it found 
that the delay could in any case have been avoided by the defendant if all 
reasonable measures had been taken. 
3 By its appeal before the referring court, the defendant maintains its request for the 
action to be dismissed. The applicant contends that the appeal should be 
dismissed. 
Principal arguments of the parties in the main proceedings 
4 The defendant maintains that the long delay was due to a shortage of staff at the 
operator of Cologne Bonn Airport, which was caused by the COVID-19 pandemic 
and was not attributable to the defendant. The previous flight had already been 
delayed by 1 hour and 17 minutes due to a shortage of check-in staff. If the check-
in operations for the previous flight and the flight at issue had been properly 
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handled, a delay of more than three hours would not have been foreseeable. 
However, according to the defendant’s submissions, there was also a shortage of 
baggage handling staff, which delayed operation of the flight by a further 2 hours 
and 13 minutes. Lastly, there was an additional weather-related delay of 
19 minutes after the doors were closed. 
5 The applicant argues that the circumstances set out above cannot be regarded as 
an extraordinary circumstance. 
Brief summary of the basis for the reference 
6 In the view of the referring court, the Amtsgericht (Local Court) wrongly upheld 
the action on the ground that the defendant had failed to indicate the measures it 
had examined with a view to preventing or reducing the delay at issue in the 
present case. 
7 According to the case-law of the Court of Justice of the European Union (‘the 
Court’), recitals 14 and 15 and Article 5(3) of Regulation No 261/2004 state that 
an air carrier is to be released from its obligation to pay passengers compensation 
under Article 7 of that regulation if the carrier can prove that the cancellation or 
delay of three hours or more is caused by extraordinary circumstances which 
could not have been avoided even if all reasonable measures had been taken and, 
where such circumstances do arise, that it adopted measures appropriate to the 
situation, deploying all its resources in terms of staff or equipment and the 
financial means at its disposal in order to avoid that situation from resulting in the 
cancellation or long delay of the flight in question, without the air carrier being 
required to make intolerable sacrifices in the light of the capacities of its 
undertaking at the relevant time (judgments of 4 April 2019, Germanwings, 
C-501/17, EU:C:2019:288, paragraph 19, and of 11 June 2020, Transportes 
Aéreos Portugueses, C-74/19, EU:C:2020:460, paragraph 36). The measures that 
an air carrier can reasonably be expected to take in order to avoid extraordinary 
circumstances leading to a considerable delay of a flight or giving rise to its 
cancellation are determined by the circumstances of the individual case; the 
reasonableness is to be assessed depending on the situation (judgments of 
22 December 2008, C-549/07, Wallentin-Hermann, EU:C:2008:771, 
paragraphs 40 and 42, and of 12 May 2011, Eglītis and Ratnieks, C-294/10, 
EU:C:2011:303, paragraph 30). 
8 On that basis, there was no obligation for the defendant to examine and take 
measures within the meaning of Article 5(3) of Regulation No 261/2004. There is 
no clear evidence to show that the occurrence of a long delay could have been 
foreseen by the defendant. The delayed arrival of the previous flight at 
Cologne/Bonn was due to an initial delay to the flight that had taken place the 
previous day, which was caused by a shortage of check-in staff that lay within the 
defendant’s own sphere of responsibility. There was no evidence to suggest that 
further delays might have resulted from that circumstance. Furthermore, there are 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-405/23 
 
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no obvious measures that the defendant could have taken in order to avoid the 
long delay. In the opinion of the referring court, the Court’s judgment of 11 June 
2020, Transportes Aéreos Portugueses (C-74/19, EU:C:2020:460), as cited by the 
Amtsgericht (Local Court), does not impose any obligation to examine the 
possibility of rebooking the passengers concerned onto another flight. The 
shortage of baggage handling staff at the airport operating company affected a 
large number of flights which also experienced delays. Under those 
circumstances, it could not objectively have been expected that a rebooking would 
have enabled the passengers concerned to reach their destination more quickly. 
9 The Amtsgericht (Local Court) should not therefore have left open the question as 
to whether the shortage of handling staff that was cited as a reason for the long 
delay constituted an extraordinary circumstance. 
10 According to the Court’s settled case-law, the concept of ‘extraordinary 
circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 
refers to events which, by their nature or origin, are not inherent in the normal 
exercise of the activity of the air carrier concerned and are beyond that carrier’s 
actual control; those two conditions are cumulative and their fulfilment must be 
assessed on a case-by-case basis (see judgments of 31 January 2013, McDonagh, 
C-12/11, EU:C:2013:43, paragraph 29, and of 23 March 2021, Airhelp, C-28/20, 
EU:C:2021:226, paragraph 23). In its judgment of 23 March 2021, Airhelp 
(C-28/20, EU:C:2021:226), the Court stated that it follows from its case-law 
relating to the concept of ‘extraordinary circumstances’ within the meaning of 
Article 5(3) of Regulation No 261/2004 that events whose origin is ‘internal’ must 
be distinguished from those whose origin is ‘external’ to the carrier. The feature 
shared by all ‘external’ events is that they result from the activity of the air carrier 
and from external circumstances which are more or less frequent in practice but 
which the air carrier does not control because they arise from a natural event or an 
act of a third party, such as another air carrier or a public or private operator 
interfering with flight or airport activity. In the order of 14 November 2014, 
Siewert (C-394/14, EU:C:2014:2377, paragraph 19), the Court held: ‘however, as 
regards a technical problem resulting from an airport’s set of mobile boarding 
stairs colliding with an aircraft, it should be pointed out that such mobile stairs or 
gangways are indispensable to air passenger transport, enabling passengers to 
enter or leave the aircraft, and, accordingly, air carriers are regularly faced with 
situations arising from their use. Therefore, a collision between an aircraft and any 
such set of mobile boarding stairs must be regarded as an event inherent in the 
normal exercise of the activity of the air carrier.’ 
11 On that basis, the activity of loading baggage could be classified as forming part 
of the normal exercise of the defendant’s activity in the present case, because it 
directly serves the purposes of performing the transport service owed to the 
passengers. In turn, it would then be appropriate to regard a shortage of loading 
staff as part of the normal exercise of the defendant’s activity and it would 
therefore have to be held that an extraordinary circumstance did not exist. On the 
other hand, it could follow from the very fact that the baggage loading at Cologne 
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Bonn Airport is handled by the airport operator, and not by the defendant itself or 
by a service provider commissioned by the defendant, that the shortage of loading 
staff constitutes an external cause that impacted the defendant’s normal activity 
from the outside in a manner that was beyond its control. 
12 In the opinion of the referring court, an extraordinary circumstance does exist. 
Baggage loading forms part of the groundhandling services initially provided in 
Germany by the airport operators themselves, or by their subsidiaries, and, as 
such, it generally remains within the airport operating company’s sphere of 
responsibility, even after the liberalisation of European air transport by Directive 
96/67/EC and its transposition into national law. Accordingly, the question of 
whether a shortage of baggage loading staff constitutes an extraordinary 
circumstance should be determined by reference to whether, as in the present case, 
the baggage loading was carried out by the airport operator, with the result that the 
existence of an extraordinary circumstance would have to be affirmed, or whether 
the air carrier concerned was itself responsible for the baggage loading, or had 
entrusted that task to a service provider, which would mean that the baggage 
loading operation formed part of the normal activity of the air carrier concerned 
and that it would therefore have to be held that an extraordinary circumstance did 
not exist. 
13 In view of the exculpation that applies in the present case vis-à-vis the further 
delay of 2 hours 13 minutes that occurred at Cologne Bonn Airport as a result of a 
lack of loading staff, the delay attributable to the defendant would amount to less 
than three hours, which would mean that the defendant is not obliged to pay 
compensation. 
14 If, on the other hand, the interpretation were to lead to the conclusion that the 
baggage loading operations carried out by the airport operator are also to be 
regarded as forming part of the normal exercise of the activity of the air carriers 
using that service, an exculpation of the defendant by virtue of Article 5(3) of 
Regulation No 261/2004 could be considered only if the staff shortage cited as the 
reason for the delay was caused by an extraordinary circumstance. In the opinion 
of the referring court, that question is to be answered in the negative. With respect 
to the operation of the flight at issue, the shortage of loading staff was not an 
inevitable consequence of the COVID-19 pandemic that the defendant was 
incapable of preventing. It is not apparent from the defendant’s submissions that 
the airport operator was unable to adapt its human resources planning, such that, 
when flight operations resumed after the pandemic, it was unable organise the 
operations in a way that would avoid significant flight delays. It is instead 
acknowledged that the airport operator, surprised by the sudden and explosive 
increase in the passenger and flight numbers as of early July 2021, had failed to 
increase its staff numbers again in good time. 
15 It follows from all of the above considerations that the success of the appeal 
depends on the interpretation of Article 5(3) of Regulation No 261/2004.