The Middle East Conflict and its impact on Aviation: The European Commission’s Notice 8 May 2026

I. Extraordinary circumstances: Fuel shortage yes, high prices no

The most relevant clarification for airlines concerns the scope of “extraordinary circumstances” according to Article 5(3) of Regulation (EC) No. 261/2004. The Commission’s position is clear and draws a sharp distinction that carriers must keep in mind: a local fuel shortage that prevents the operation of a specific flight may qualify as an extraordinary circumstance. However, cancellation due to higher fuel prices, even if they are exceptionally high, are not regarded as extraordinary in the sense of Art. 5 (3).

That distinction is very relevant in practice: considering that an airline that cancels a flight because fuel prices have risen to such an extent that it makes the routes commercially not viable, cannot rely on Art. 5(3) to be exempted from any liability for compensation. To successfully invoke Art. 5(3) airlines will have to demonstrate that a specific, local fuel shortage at the relevant airport prevented the operation of the flight. The Commission refers to the CJEU’s judgment (C-308/21, 7 July 2022), which confirmed that a general failure of the refuelling system at an airport can be an extraordinary circumstance if it is outside the aircraft operator’s control.

Consequently, airlines must document and proof these circumstances. Documentation could include notice to airmen (NOTAM), communication from fuel suppliers, operational logs and other evidence that shows that the cancellation was caused by supply unavailability rather than a commercial assessment of profitability. The timely collection of this evidence will be key to defend passenger claims successfully.

II. Ticket pricing and fuel surcharges

The Commission’s Notice reaffirms the obligations under Art. 23 of Regulation (EC) No. 1008/2008 under which the final ticket price must be displayed before the booking is finalised. That also includes all unavoidable and foreseeable charges. Therefore, airlines may not retroactively increase ticket prices on the basis of fuel cost increases after the ticket sale. Any terms and conditions that currently allow for such post-sale fuel surcharges must be revised. The Commission explicitly states they are non-compliant with the Air Services Regulation.

Airlines should therefore review their general terms and conditions of carriage quickly. Where surcharges are mentioned, those clauses require special attention. Optional price supplements that are apparent at the beginning of the booking process on an opt-in basis might be permissible but only if they are communicated clearly, transparently, and unambiguously.

The Package Travel Directive, however, permits tour operators to increase the price of a package tours after the contract was concluded, if this right was expressly reserved stated when the contract was concluded and the increase is directly caused by changes in the cost of fuel. Increases of up to eight per cent do not require the traveller’s agreement but the traveller must be informed at least twenty days before departure with a detailed justification.

III. Airport slots: Justified Non-Use and its limits

The Commission has endorsed the recommendation of the European Airport Coordinators Association (EUACA) of 13 March 2026 on the application of justified non-use of slots (JNUS) in the context of the Middle East crisis. Airlines experiencing fuel supply disruptions may invoke JNUS in the context of the Middle East crisis to avoid losing their slot entitlements under the 80/20 use-it-or-lose-it rule of Council Regulation (EEC) No. 95/93.

JNUS applies both to the departure and destination airport. This covers scenarios where an airline can fuel sufficiently at the first airport but is unable to get the fuel needed for the return or onward leg at the second airport due to insufficient supply there. The Commission clarifies that high jet fuel costs alone cannot constitute a “serious disturbance of operations” sufficient to establish JNUS. The threshold is an actual supply disruption. Evidence will be required by coordinators when deciding on JNUS applications.

IV. Fuelling obligations under ReFuelEU Aviation

Regulation (EU) 2023/2405 (ReFuelEU Aviation) requires aircraft operators to uplift at least 90 % of their yearly requirements at each EU departure airport from which they operate commercial flights. This is supposed to prevent “tinkering”, meaning the practice of deliberately uplifting more fuel than needed at airport A to avoid refuelling at airport B because it is cheaper. This leads to heavier aircrafts and more CO2 emissions.

The Commission’s Notice confirms that an exemption from this threshold is available where compliance with fuel safety rules due to e.g. a shortage at the destination requires uplifting additional fuel at the departure airport. This is necessary for a safe return or onward leg. In these cases, airlines must report the deviation from the treshhold to the competent authority and to EASA as part of their annual reporting obligations. The Commission has called on member states to ensure that NOTAMs are issued fast in cases of shortages and to also accept the NOTAMs as evidence for exemption.

Again, this defence does not extend to cases of high fuel prices.

V. EASA safety information bulletin on Jet A fuel

EASA has published a Safety Information Bulletin (SIB No. 2026-04) on the possible use of Jet A grade fuel in environments previously supplied with Jet A-1. The aviation industry is currently assessing whether Jet A fuel could serve as a temporary supply alternative should shortages appear in Europe. The Commission has confirmed that there is no regulatory obligation mandating either fuel grade and that large aircrafts are generally certified to operate on both. Airlines and fuel supply chain actors should consult the EASA bulletin before making any operational changes in this area.

VII. Conclusion

The Commission’s Notice of 8 May 2026 tries to provide some regulatory clarity at a time of operational uncertainty for the aviation industry. The central message for airlines is that the law draws a strict line between supply disruption and price volatility. This is a distinction that directly determines liability exposure under Regulation (EC) No. 261/2004 as well as a possible increase in ticket prices, slot protection and fuelling compliance. Applying this distinction correctly and documenting it well, will be crucial for assessing the validity of passenger claims.

Airlines should review their general conditions of carriage for any post-sale fuel charge clauses, assess their slots in light of the EUACA JNUS recommendation and ensure that possible deviations from the 90 % fuelling threshold under ReFuelEU Aviation are properly reported and based on evidence material.

We are closely monitoring further regulatory developments and are happy to advise you on the implications of the above Notice of the European Commission for your operations and possible liability.