Procedure
The circumstantial examination procedure afraid the judgement of the Court of the European Union of 21.1.2026, D (Managing Decision), T-134/25, Legalis, issued in consequence to a preliminary ruling of the territory Court for the City of Warsaw in Warsaw. The intent of the review was to find whether, in the light in peculiar of the judgments of the TS of 31.1.2013, McDonagh, C-12/11, Legalis, and 23.3.2021, Airhelp, C-28/20, Legalis — judgement of the Court of First Instance affects the unity or consistency of Union law in so far as the Court of First Instance held that:
- Whereas the decision of the flight management cannot be considered to fall within the average performance of the air carrier due to the fact that it is not part of the activities of the air carrier afraid but falls within the business and competence of the flight management;
- Whereas specified a decision, whatever the reason for it, is outside the scope of effective control of that carrier, unless it has contributed to that decision, and
- Consequently, Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11.2.2004 laying down common rules on compensation and assistance to passengers in the event of denied boarding or cancellation or long hold of flights, repealing Regulation (EEC) No 295/91 (OJ L 46, p. 1), must be interpreted as meaning that specified a decision may constitute an ‘extraordinary circumstance’ within the meaning of that provision, irrespective of the duration of the hold caused by it and of the reason justifying it, if it is shown that that that decision was outside the scope of effective control of the air carrier in question, in peculiar where it can be excluded that the carrier contributed to that decision.
TS Position
The word ‘extraordinary circumstances’
For the purposes of applying the right to compensation for delayed flights, passengers may be regarded as passengers of cancelled flights and can so trust on the right to compensation provided for in Article 7 of Regulation No 261/2004 if, on account of a delayed flight, they incur a failure of at least 3 hours, i.e. if they arrive at the destination at least 3 hours after the arrival time originally provided by the air carrier. Article 5(3) of Regulation No 261/2004 However, it exempts the operating air carrier from the work to pay compensation if it can prove that an appeal or a large hold on arrival is due to ‘extraordinary circumstances’, which could not be avoided even if all reasonable measures were taken and, in the event of specified a situation, that he had taken measures adapted to the situation by utilizing any personnel or material resources and financial resources he had at his disposal to avoid that the situation led to the cancellation or long hold of the flight in question.
The Court found that The Court of First Instance infringed the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, by ruling in judgement T-134/25 that a decision by the flight management may constitute an exceptional circumstance, irrespective of the reason justifying it, if it is shown that it has been outside the scope of effective control of the air carrier in question, and in peculiar where it can be excluded that that carrier has contributed to that decision.
The second paragraph of Article 62b of the Statute of the Court of Justice provides that if the Court of First Instance considers that the judgement of the Court of First Instance infringes the unity or consistency of Union law, the answer to which the Court of First Instance will answer the questions under review shall replace the answer of the Court of First Instance.
Flight management decision
It follows from the caselaw of the TS that any decision of the flight management cannot, by its nature, itself and irrespective of the basis on which it was based, constitute an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004 (judgment ofC-12/11, paragraph 34). On the contrary, take account of the grounds for specified a decision, i.e. the event which led to it, and to measure whether, by reason of its nature or its source, the event does not fall within the average performance of the air carrier’s activities and is beyond its effective control, the 2 conditions having cumulative nature.
In the present case, the decision of the flight management was taken due to restrictions in the airspace of Hungary and Romania introduced due to bad weather conditions. Recital 14 of Regulation No 261/2004 shows that exceptional circumstances may happen in peculiar in the case of meteorological conditions preventing a given flight. However, the TS pointed out that the circumstances referred to in recital 14 request not necessarily and automatically constitute grounds for exemption from the compensation work provided for in Article 5(1)(c) of Regulation No 261/2004. Consequently, be assessed in each circumstantial case whether they meet both cumulative conditions. The Court pointed out that It is so for the referring court to determinewhether the bad weather conditions which led to the contested decision of the flight management fulfil these conditions.
The Court explained that, first, although the air carriers operating regularly meet changing or even hard weather conditions, this does not alter the fact that, where Atmospheric conditions prevent the operation of the flight in a completely safe manner, in accordance with the originally planned timetable, they do not fall within the average operation of the air carrier concerned. Secondly, since the atmospheric conditions so hard that they prevent the operation of the flight in a completely safe manner, as originally foreseen in the timetable, are natural events, it should be considered that they are beyond the effective control of the air carrier concerned. Therefore, the TS considered, subject to the findings to be made by the referring court, that the event underlying the decision taken by the flight management meets cumulative grounds for considering it an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004.
The Court held that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the decision of the flight management cannot, in itself and irrespective of the reasons justifying it, constitute an ‘extraordinary circumstance’ within the meaning of that provision, but, on the contrary, the reason for specified a decision must be taken into account by examining for each case separately whether the event which caused that decision, by reason of its nature or its source, falls outside the average performance of the air carrier afraid and is beyond its effective control.
Comment
For the first time in the past of the Court of Justice, the judgement of the Court of First Instance, which was given for a preliminary ruling, was repealed, recognising that the explanation adopted in the Court of Justice infringes the unity and consistency of EU law. Consequently, this judgement and the explanation of the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 are replaced by the judgement presented by the TS. Unlike the Court of First Instance, the TS has accepted favourably for passengers that the decision of the flight management cannot in itself constitute an ‘extraordinary circumstance’ within the meaning of that provision.It is so appropriate to take into account each reason for specified a decision and to measure whether it falls within the average performance of the air carrier’s activities and is beyond its effective control (cumulative grounds).
However, the TS has limited this ‘pro-passenger’ explanation by considering that erstwhile a flight hold of at least 3 hours at the time of landing at the destination aerodrome is not only a consequence of exceptional circumstances within the meaning of Article 5(3) of Regulation No 261/2004 (e.g. as in the present case, weather conditions so hard that they prevent the flight from being carried out in a completely safe manner, in accordance with the originally scheduled flight schedule), but besides of another non-aeronautical circumstances (e.g. as in the present case, a method failure of the aeroplane), the hold resulting from that first condition should be deducted from the full hold of the flight at the time of landing at the destination aerodrome in order to measure whether compensation for passengers provided for in Article 7 of Regulation No 261/2004 should be paid for the hold of that flight.
Moreover, the TS indicated that an air carrier may trust on an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004 in the case ofevents which have affected the erstwhile flight operated by the same carrier utilizing the same aircraft, provided that there is simply a direct causal linkbetween the occurrence of this condition and this delay.
