Navigating the EU Air Passenger Rights Reform – Part 5: rerouting as a “reasonable measure” under Article 6c and the TAP judgment

The new regulated exemption under Article 6c

At first sight the regulation of extraordinary circumstances might not seem much different from the old version of the regulation. The concept of extraordinary circumstances serving as an exculpation from compensation claims is nothing new. The old Article 5(3) has now been incorporated into Article 6c. Notably, the new Article 6c now expressly refers to a “direct causal link”, a wording that did not appear in the former Article 5(3). This addition coincides with the CJEU’s decision of March 2026 (T-656/24), in which the existence of a direct causal link was addressed. While it cannot be established any longer whether the wording of Article 6c was actually influenced by this judgment, the temporal proximity between the judgment and the legislative amendment is noteworthy.

The judicial context: the impact of the TAP judgment

Historically, the industry has faced uncertainty regarding the scope of “reasonable measures” required from air carriers. In both the TAP and the Austrian Airlines, the CJEU examined in the specific circumstances of the cases, whether offering passengers a flight with the same carrier on the following day reflected all reasonable measures available to avoid the delay due to a missed connection (TAP) or the cancellation (AUA). The Court concluded that this was not the case, emphasizing that indirect connections operated by other carriers also had to be considered. While the judgment was based on the specific circumstances of the case (a missed connection and a cancellation), it has subsequently been interpreted broadly by courts and Claim Management Companies, establishing an obligation for airlines to reroute passengers even with competing carriers at the earliest possible opportunity in order to be exempt from liability, no matter what the exact circumstances are.

Especially in Germany courts have been interpreting rerouting as the only decisive reasonable measure under the old Article 5(3) thereby establishing high standards to meet the requirements for exculpation. (German) Courts have done so irrespective of the type of carrier involved, the situation and the quality of the disruption. The perception of the aforementioned TAP judgment of the CJEU led many German courts to require carriers to also check all indirect connection for rerouting in order to be exempt from paying compensation. Additionally, carriers are expected to prove which connections they considered while rerouting. Taking into account that not all carriers use systems to automatically reroute passengers onto the best alternative flight, or do not reroute passengers onto other carriers at all, it becomes clear that carriers almost never meet these strict courts’ requirements.

The way German courts apply the CJEU judgments currently undermines the concept of exemption from liability through proof of extraordinary circumstances to the extent that only the earliest possible rerouting is relevant.

The relation of Article 6c to Article 8

Article 6c governs the exculpation of a carrier from a compensation claim, whereas Article 8 regulates the carrier’s obligation to assist passengers through alternative transport options. Only Article 8 thus considers the passenger’s need for transport regardless of a disruption. Therefore, the exculpatory standard of “all reasonable measures” under Article 6c cannot impose operational requirements that extend beyond what is mandated by Article 8. In particular, providing alternative rerouting cannot automatically be classified as a mandatory “reasonable measure” required for an airline to exculpate itself from compensation liability. However, in the past (German) courts seemed to have disregarded this and applied re-routing as a reasonable measure under Article 5(3) by creating an objective and general standard.

What will change?

Right at the beginning of the regulation, recital 2 emphasizes that the revised regulation considers CJEU judgments from the past years. However, the new regulation does not consider the two CJEU judgments on rerouting mentioned above. Therefore, there is reason to believe that the legislator aimed at counteracting excessive application of the TAP and Austrian Airlines decisions, meaning that rerouting can be a reasonable measure in individual cases but it is not always a necessity.

Moreover, recital 5 specifies that the extraordinary circumstance must have “caused the disruption”, “disruption” in this case meaning for example the cancellation of a flight, which should not have been avoided even if the air carrier had taken all reasonable measures. Rerouting naturally cannot eliminate the disruption of a flight, because providing one single passenger another option to arrive (faster) at his/her final destination does not lead to the effect that the original flight is suddenly operating or is no longer being delayed. The whole construct around rerouting as a reasonable measure is not coherent with how the regulation expects a carrier to act in cases of disruptions. The protection of passengers through rerouting is established in Article 8 and not in Art. 6c.

Conclusion

The new Article 6c reshapes the way we look at rerouting. Not only does it contribute to further clarity by shedding light on what is viewed as an extraordinary circumstance, but the changes also emphasize that rerouting was never supposed to be viewed as a standard reasonable measure. To conclude, the revised Articles offer a new chance of establishing rerouting as a means of support for passengers affected by a disruption, but not as a requirement for exemption from compensation claims. It remains to be seen if the national courts will follow this approach.