High Court holds airline met its burden of proof on “all reasonable measures” following passengers’ refund request.

On 6 December 2025, Henning Romme-Mølby represented the airline and obtained a victory before the Danish High Court in a case of importance for the interpretation of Articles 5 and 8 of EU Regulation 261/2004. The Court’s decision provides enhanced legal clarity for airlines operating under extraordinary operational disruptions.

Extraordinary circumstances and secondary operational effects

Both the District Court and the High Court agreed that an announced and subsequently executed strike among air traffic control personnel in Italy constituted extraordinary circumstances within the meaning of Article 5(3). The High Court emphasized that even where a strike is time-limited, its operational effects may persist and create such systemic congestion that an airline is compelled to cancel a flight scheduled after the formal strike window. These secondary complications are therefore legally relevant and fall within the scope of extraordinary circumstances.

A principle issue: Did the Airline take “all reasonable measures”?

The central legal question on appeal concerned whether the airline had taken all reasonable measures to avoid or limit the resulting delay. This issue remains one of the most disputed aspects of EU261 litigation.

The District Court held that the airline had not discharged this burden, primarily because it had not been proven that the passengers were offered re-routing at the earliest opportunity.

The High Court, however, overturned this conclusion and accepted the airline’s reasoning, thereby providing an important refinement of the applicable legal standard.

Arguments presented by the airline during the evidence phase

During the evidentiary proceedings, the airline emphasized a series of arguments illustrating that it had complied with its obligations under Articles 5 and 8 and had taken all reasonable measures to mitigate the consequences of the operational disruption. These arguments included, inter alia (not exhaustive):

• That the passengers received timely communication offering them the choice between refund and re-routing, in accordance with Article 8.

• That the passengers elected a refund two days prior to the planned departure and subsequently arranged their own transportation from an entirely different airport.

• That the passengers’ election of a refund terminated the re-routing process; had the passengers instead requested re-routing, the refund would not have been released, and alternative travel arrangements would have remained available to them.

• That it is not feasible to require an airline to document a hypothetical “earliest possible re-routing option” for all 189 passengers from a cancelled flight, given natural fluctuations in seat availability and differing individual travel needs.

• That alternative and potentially better re-routing options often arise only when passengers actually request re-routing following receipt of such an offer, making it unreasonable to expect the airline to pre-emptively freeze seat inventory in anticipation of purely theoretical scenarios.

The High Court accepted these arguments and concluded that the airline had fulfilled its obligations under Article 8 and had taken all reasonable measures required by Article 5(3). The airline was therefore acquitted of both the reimbursement claim and the compensation claim.

Legal significance

This judgment strengthens the jurisprudence on how Articles 5 and 8 interact when passengers elect a refund rather than re-routing. It confirms that airlines cannot be required to document hypothetical re-routing options that passengers have expressly declined to pursue. The mitigation assessment must be based on the actual choices made by passengers, not on theoretical alternatives.

This approach is consistent with the Regulation Article 4.2.:

“As a general principle, when the passenger is informed about the cancellation of the flight and is correctly informed on the available choices, the choice offered to passengers under Article 8(1) is to be made once. In such cases, as soon as the passenger has chosen one of the three options under Article 8(1)(a), (b) or (c), the air carrier no longer has any obligation linked to the other two options.”[my emphasis]

The Commission’s Interpretative Guidelines further state:

“However, where an air carrier can demonstrate that, when the passenger has accepted to give his or her personal contact details, it has contacted the passenger and sought to provide the assistance required by Article 8, but the passenger has nonetheless made his or her own assistance or re-routing arrangements, then the air carrier may conclude that it is not responsible for any additional costs the passenger has incurred and may decide not to reimburse them.”[my emphasis]

Comment

This ruling reinforces existing case law — particularly on the question of whether an airline has taken all reasonable measures to limit delay when passengers themselves elect a refund rather than re-routing. The High Court decision confirms that once passengers opt for a refund, the airline’s duty to mitigate delay does not extend to constructing or evidencing hypothetical re-routing scenarios that the passengers did not request. The decisive question is whether the passengers were in fact offered both refund and re-routing, in accordance with Article 8.