Flight Delays and Air Traffic Management: When the Carrier Must Pay
An air traffic management decision is not, by itself, enough to exclude compensation
An air traffic management decision does not automatically release the air carrier from its obligation to pay the fixed compensation provided for by Regulation (EC) No 261/2004. The carrier must identify the event that led to the decision and prove, in the specific circumstances, that the event qualifies as an “extraordinary circumstance”.
This is the central point of the judgment delivered by the Court of Justice of the European Union on 8 October 2026 in Case C-108/26, following a review of the judgment delivered by the General Court on 21 January 2026. The Court of Justice set aside the interpretation according to which an air traffic management decision could itself constitute an extraordinary circumstance, irrespective of the reasons that had prompted it. Court of Justice of the European Union, judgment of 8 October 2026
The judgment confirms the restrictive approach to the exemption from the duty to pay compensation and clarifies that the assessment cannot stop at the existence of an instruction or measure issued by air traffic control. The court must examine the cause of the decision and assess its nature, origin and concrete impact on the flight concerned.
The case: a delay caused by several factors
The dispute concerned a passenger travelling from Izmir to Warsaw. The flight arrived at its destination more than three hours late. The aircraft, however, had previously operated a flight between Katowice and Izmir. That earlier flight had been affected by an operational restriction imposed by the air traffic management services because of limitations affecting Hungarian and Romanian airspace, which were connected with adverse weather conditions.
After the aircraft arrived in Izmir, a technical fault was also identified. Its repair took more than two hours. The Court was therefore faced with a delay resulting from the combination of a potentially extraordinary circumstance and a technical event relating to the operation of the aircraft.
The issue was material because, if the time attributable to air traffic management had been deducted from the overall delay, the remaining delay would have been less than three hours. This gave rise to the preliminary reference and, following the General Court’s judgment, to the review proceedings before the Court of Justice.
The General Court’s judgment of 21 January 2026 had essentially held that it was sufficient for the air traffic management decision to be external to the carrier and outside its control. The Court of Justice held instead that the analysis must also address the event that led to the decision.
The concept of extraordinary circumstances remains subject to two cumulative conditions
Article 5(3) of Regulation No 261/2004 allows the carrier to avoid paying compensation only where it proves that the cancellation or long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
According to settled case-law, the event must satisfy two cumulative conditions: it must not be inherent, by its nature or origin, in the normal exercise of the carrier’s activity, and it must be beyond the carrier’s actual control. The assessment must be concrete and must relate to the individual flight.
The Court of Justice has reiterated that the two conditions cannot be collapsed into one. The fact that an event is beyond the carrier’s control is not sufficient if the event nevertheless forms part of the normal operation of the air transport business. Conversely, the fact that an event is external to the operation of the aircraft does not, by itself, conclude the assessment of whether it is extraordinary.
The Court of Justice judgment of 13 June 2024 confirms that, where an extraordinary circumstance causes a cancellation or a long delay, the carrier must also prove that it adopted measures technically and economically capable of avoiding or limiting the consequences of that event.
The reason for the air traffic management decision is decisive
Air traffic management decisions are ordinary occurrences in the operation of an air carrier. They may concern, among other matters, the allocation of a time slot, a reduction in sector capacity, a change of route or a temporary restriction of airspace.
Precisely because such decisions form part of the ordinary operation of air transport, they cannot automatically be classified as extraordinary. The carrier must prove that the decision was adopted because of a further event which was not inherent in the normal exercise of its activity and which was beyond its actual control.
The Court of Justice referred, by way of example, to weather conditions of such severity that they prevent the flight from being operated safely and in accordance with the original schedule. In such circumstances, the weather event may satisfy both conditions required by the rule: it is external to the carrier and does not form part of the normal operation of the business. The national court must nevertheless assess the actual severity of the phenomenon and its concrete impact on the possibility of operating the flight.
The air traffic management decision is therefore the operational consequence of an event; it is not necessarily the extraordinary event itself. This distinction is essential. An airline cannot merely produce a communication concerning a slot or a traffic restriction. It must document the cause of the measure, its duration and its causal connection with the delay to the flight concerned.
A delay of less than three hours may also be deducted
The Court also confirmed an important practical principle: the extraordinary event need not, by itself, have caused a delay of at least three hours.
If the overall delay results from several factors, the court must separate the delay and determine which part is attributable to the extraordinary event and which part is attributable to non-extraordinary causes. The time attributable to the extraordinary circumstance may be deducted even where it is less than three hours. Compensation remains payable if, after the deduction, the delay attributable to the non-extraordinary causes still reaches the threshold laid down by the Regulation.
The deduction is not automatic. The carrier must prove both the temporal contribution of the extraordinary event and the adoption of reasonable measures to avoid or reduce the delay. In the absence of that evidence, the period invoked by the carrier cannot simply be deducted from the total delay.
The preceding flight in the aircraft rotation: when it matters
An extraordinary circumstance may also affect a preceding flight operated by the same aircraft. The Court of Justice has accepted that possibility, but requires a direct causal link between the event occurring on the earlier flight and the delay to the subsequent flight.
The carrier must therefore reconstruct the aircraft’s rotation, the actual times, the turnaround operations and the decisions taken after the event occurred. It is not sufficient to state that the delay propagated through the sequence of flights.
The causal link may be broken by an autonomous decision of the carrier which becomes the determining cause of the subsequent delay. The General Court has stressed that the assessment must distinguish the external event from the organisational decisions subsequently taken by the airline and determine whether those decisions were unavoidable or independently contributed to the delay. General Court, judgment of 4 March 2026
The carrier must therefore prove a direct connection between the extraordinary event and the delay to the later flight. A mere reference to the same aircraft or to the same daily rotation is not enough.
The position of the Italian courts: a concrete evidential burden
Italian case-law interprets the exemption consistently with the approach of the Court of Justice. The carrier must prove not only that an external event occurred, but also that the event concretely caused the delay and that its consequences could not have been avoided through technically and economically reasonable measures.
The same evidential approach applies to weather conditions, airport restrictions, air traffic management measures and technical events. General communications, press reports or operational data relating to other flights may have evidential value, but they do not necessarily establish the causal impact of the event on the specific flight in dispute.
The evidence must make it possible to reconstruct the individual flight. In particular, the carrier should be able to produce air traffic control or Eurocontrol communications, weather reports, flight-operation data, the aircraft’s rotation history, maintenance records and documentation relating to the alternative measures considered.
The national court must also examine whether the carrier adopted all measures reasonably available to it, taking account of its personnel, equipment and financial resources. The standard is not an absolute obligation to prevent every delay, but the carrier cannot rely on the extraordinary-circumstances defence without showing that it acted with appropriate diligence once the event occurred.
A subsequent technical fault does not disappear because the first event was extraordinary
In the case examined by the Court of Justice, the air traffic management decision was accompanied by a technical fault affecting the aircraft. The existence of an earlier event that may qualify as extraordinary does not automatically absorb the subsequent causes of the delay.
The court must isolate each factor and determine whether the technical fault is inherent in the normal operation of the carrier’s activity, whether it had an autonomous impact and whether the carrier adopted the measures that could reasonably be expected of it. The classification of the first event therefore does not, by itself, determine the outcome of the entire dispute.
The distinction is consistent with the European case-law. A technical problem affecting an ordinary component of an aircraft will generally require a separate assessment and cannot be treated as extraordinary merely because it followed an external event. Conversely, an external event affecting airport infrastructure or the aircraft from outside the carrier’s operational sphere may satisfy the conditions of Article 5(3), subject to proof of the causal link and of the measures taken by the carrier. Court of Justice of the European Union, judgment of 7 July 2022
What the carrier must prove
In light of the European judgment and the Italian case-law, exemption from compensation requires evidence of at least three elements:
the existence of the event and its classification as an extraordinary circumstance;
a direct causal link between the event, the air traffic management decision and the delay to the specific flight concerned;
the adoption of all reasonable measures to avoid or limit the delay.
From a documentary perspective, relevant evidence may include communications from Eurocontrol or air traffic control services, weather bulletins, flight-operation data, the aircraft’s rotation sequence, maintenance reports and documents concerning the alternative solutions considered by the carrier.
The documentation must, however, relate to the individual flight. Generic communications, media reports or reports concerning other connections may be indicative, but they do not necessarily prove the causal impact of the event on the flight in dispute.
Practical consequences for passengers
For passengers, the Court of Justice’s judgment has a clear consequence: the statement “delay caused by air traffic control” does not dispose of the matter and does not automatically exclude the right to compensation.
Where the arrival delay is at least three hours, the carrier must explain which event caused the air traffic management measure, how that event affected the flight, what part of the delay is specifically attributable to it and what measures were taken to limit its effects.
Passengers should therefore challenge, where appropriate, not only the existence of the event but also its legal classification, the actual duration of its impact, its connection with the flight concerned and the adequacy of the organisational measures adopted by the airline.
Conclusion
The Court of Justice’s judgment does not exclude the possibility that an airspace restriction or severe weather conditions may constitute an extraordinary circumstance. It does, however, exclude the automatic classification of the administrative decision that represents the operational consequence of that event.
The principle can be summarised as follows: the carrier cannot merely refer to the air traffic management decision. It must prove the event that caused it, its extraordinary nature, the causal link with the delay and the adoption of all reasonable measures.
The result is a more detailed assessment of the evidence and greater attention to the breakdown of the delay into its component parts. An external cause can release the carrier from its obligation only in respect of the time and consequences that it actually caused. Any part of the delay that remains attributable to technical faults, organisational choices or inadequately proven causes continues to be relevant for the purposes of the compensation provided for by Regulation No 261/2004.
© Avv. Gabriele Lanzi
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