Aviation Law
The new landscape of “extraordinary circumstances”
As we launch our dedicated series to prepare your airline for the 12-months transition to the amended Regulation (EC) No. 261/2004, we begin with the foundation of carrier defense: extraordinary circumstances. While the industry initially sought a wider expansion of these exemptions, the final text has one strategic advantage: legal certainty. By codifying nearly two decades of CJEU case law into a structured Annex, the reform seems to provide clearer boundaries for what constitutes an event beyond a carrier’s control.
The statutory requirement of “direct causality” in Article 6(c)
The most critical addition to the exoneration framework is the express requirement in Article 6c(1a): an air carrier is only exempt from compensation if it can prove a direct causal link between the extraordinary circumstance and the specific flight disruption.
“Direct causality” remains an undefined legal term. While intended to provide clarity, its application in court remains highly unpredictable. The burden of proof for this link rests entirely on the airline.
The critical connection: the T-656/24 precedent and a possible reaction “trap”
The new statutory focus on direct causality shall be viewed through the lens of recent jurisprudence, especially the General Court’s decision in T-656/24. This case involved a strike by security personnel, which is clearly an extraordinary circumstance under the new Annex I (v).
However, the court suggested that the causal chain was interrupted by the carrier’s own decision to wait for delayed passengers. The problem is as follows: if an airline’s reaction to a disruption (e.g. holding a flight for passengers stuck in strike-related security queues) is viewed as an independent decision that breaks the causal link, the airline loses its exoneration. Paradoxically, this creates irritating incentives. If every proactive management decision to reduce passenger inconvenience is potentially seen as an “interruption of causality”, carriers might find it legally “safer” to do nothing.
The contradiction: “reasonable measures” vs. causal interruption
There is an inefficient and illogical friction between the requirement for a direct causal link and the airline’s mandatory duty to take “all reasonable measures” to avoid disruption.
The regulation demands that airlines take measures to cope with the disruption in oder to minimize the negative effect on the passengers. Yet, as seen in T-656/24, a measure can be reinterpreted by courts as a voluntary decision that replaced the original “extraordinary” cause with an “internal” choice.
Strategically, airlines must therefore argue that “reasonable measures” are part of the duty to manage the effects of an extraordinary circumstance and it is an airline’s decision to wait for passengers or reschedule aircraft should be seen as a continuation of the extraordinary event’s impact and not an interruption of it.
The non-exhaustive list (Annex I and Article 6c)
For the first time, the Regulation now includes a dedicated Annex listing events considered extraordinary. Crucially, Article 6c(1) specifies that this list is non-exhaustive.
Key categories in Annex I are:
- Natural/Environmental disasters: Incompatible with safe flight operations.
- Meteorological conditions: Includes lightning strikes, thunderstorms or severe turbulence.
- Unruly passengers: Explicitly listed, unless the carrier caused the behaviour.
- Hidden manufacturing defects: Revealed by the manufacturer or a competent authority.
- Labor disputes: Strikes at essential service providers (ATC, airports) are extraordinary. Strikes by an airline’s own staff only qualify if they originate from demands that only public authorities can meet.
The potential of evaluating unlisted circumstances
Since the aforementioned list is non-exhaustive, the reform leaves a regulatory gap. According to Recital 5a, if an event is NOT included in Annex I, it must be assessed on a case-by-case basis against the cumulative conditions of Article 2(r).
This “omission” allows airlines to argue for new types of extraordinary circumstances as the aviation industry changes. For example, specific cybersecurity breaches or unprecedented airspace closures due to geopolitics are not yet listed. If it isn’t on the list, it isn’t automatically an “ordinary circumstance”, it just triggers the classic Wallentin-Hermann test, meaning that the circumstance must not be inherent with the carrier’s normal activity and must be beyond its actual control.
This also leaves room for judicial reconsideration of historical precedents that were previously unfavorable to carriers. The case-by-case evaluation gives airlines a new opportunity to argue that local operational context matters. For example, while de-icing procedures might be more of “ordinary” circumstance in New York in winter, an unprecedented freezing event in Seville could now be more effectively argued as “not inherent” and “beyond actual control” and thus an extraordinary circumstance.
Furthermore, the reform also partially signals a much clearer differentiation of spheres. By for example explicitly categorizing strikes and operational failures of ground handlers as extraordinary circumstances, the legislator has acknowledged that many technical and logistical dependencies are external to the airlines. This shift in legal valuation allows airlines to argue that many disruptions previously deemed “internal” should now be viewed as external.
Coming up
This briefing is the first step in our comprehensive guide to the new Regulation 261. We will resume this series at the end of August with newsletters on the new set of rules on delays, baggage Regulation, informational duties and many other topics.
As always, we are happy to help with further assistance on this topic or any other issues related to aviation law and passenger claims. Feel free to contact us for legal consultation or representation!
