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The Court of Justice of the European Union rules that decisions taken by air traffic control cannot, in themselves, constitute extraordinary circumstances.
On 8 October 2026, the Court delivered its judgment in Case C-108/26 RX, in which it held that a decision taken by air traffic control cannot, in itself, constitute an extraordinary circumstance.
The Court of Justice of the European Union reviewed the judgment of the General Court, case T-134/25. The General Court had held that restrictions imposed by air traffic control constituted, in themselves, extraordinary circumstances, regardless of the duration of the restrictions.
The case before the General Court concerned a flight that was delayed because air traffic control had assigned a later departure time to a preceding rotation, which affected the flight in question.
The question arose, whether an air traffic management decision may constitute an ‘extraordinary circumstance’, irrespective of the duration of the delay entailed and the reason for it, and if this is not the case, whether the national court is required to examine the reasons underlying that decision.
The Court of Justice rejected the view of the General Court. Rather, an air carrier must demonstrate that the air traffic management decision was taken on account of an ‘extraordinary circumstance’.
The effect of the new judgment
What are the effects of the judgment? We highlight three key points arising from the judgment:
First, the Court of Justice has now established that, in cases involving a decision taken by air traffic control, an air carrier must be able to demonstrate that the decision was made on account of an extraordinary circumstance.
In practical terms, this is unlikely to lead to significant changes in Danish practice. Decisions taken by air traffic control will generally be based on an event such as a strike, adverse weather conditions, etc., which will normally be reflected in regulation codes or other forms of evidence. The underlying reason may therefore already be a known circumstance in cases of compensation claims.
Nevertheless, the judgment clearly tightens the evidentiary requirements in such cases. An air carrier will not be able merely to prove the existence of the decision; it must also prove the circumstances underlying that decision. In other words, the matter to be proved becomes more a question of why the decision was taken than whether a decision was taken. In any event, proving the reasons underlying a decision taken by a third party will be more difficult than merely proving the existence of that decision.
The judgment means that greater emphasis must now be placed on proving the circumstances underlying the decision, rather than merely establishing the existence of the decision itself.
What is clear, is that an air carrier cannot simply rely on the decision taken by air traffic control.
Second, following the judgment, it is not entirely clear whether an air carrier is precluded from invoking extraordinary circumstances on the grounds of decision taken by air traffic control, which are inherent from capacity-related reasons, such as insufficient capacity within an air corridor.
An air carrier will regularly experience changes to its scheduled departure time, but is it inherent in the normal exercise of its activity that an available air corridor may not be found until several hours later than would ordinarily be expected? A reading of the judgment suggests that the focus should be on the reason for the lack of capacity. However, this cannot be clearly interpreted from the judgment, as the lack of capacity will itself be the reason for the decision taken by air traffic control.
Third, the judgment still leaves an unresolved question in situations where an air carrier receives an unusually large number of differing notifications concerning take-off time for a single flight. An air carrier may, at times, find itself in a situation where, for example, 10–15 conflicting notifications concerning the departure time are received in respect of a single flight. Would the air carrier still be required to account for the reasons underlying each of those decisions? Could such decisions not be the result of erroneous handling by air traffic control and, as such, themselves constitute an extraordinary circumstance?
And what should air carriers pay particular attention to?
Following the judgment in Case C-108/26, it is clear that air carriers must now exercise caution when relying on extraordinary circumstances in cases involving decisions taken by air traffic control. At a minimum, air carriers must be able to identify and provide evidence of an extraordinary circumstance that gave rise to the decision.
It remains uncertain whether events such as restrictions on air corridors and the allocation of later departure times may, in themselves, constitute extraordinary circumstances. This will depend on whether the event satisfies the first part of the cumulative test, namely whether it falls outside the normal exercise of the air carrier’s activity.
Second, air carriers should ensure that more comprehensive evidence is available in this type of case. Following the new judgment, a slot history alone is unlikely to be sufficient; the air carrier should also be able to provide evidence of the specific event underlying the decision (for example, weather data, a NOTAM or similar documentation).
How can Romme Law Firm assist?
At Romme Law Firm we continuously monitor developments in the case-law on extraordinary circumstances and ensure that our clients’ cases are presented and defended as effectively as possible. This includes ensuring that the necessary evidence is available to meet the burden of proof, under the new case-law, in respect of the underlying event that gave rise to a decision taken by air traffic control.
If you would like to learn more about our work in this area, please do not hesitate to contact us.
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