Jet Fuel Shortage – A clarification after the Commission’s Notice 8 May 2026?

I. What does a jet fuel shortage mean?

A jet fuel shortage is frequently misunderstood as a question of rising prices. Legally, however, the distinction is much stricter. Only a physical lack of fuel at a given airport or within a supply chain qualifies as a genuine shortage, whereas high or even extreme fuel prices do not.

This distinction is not merely academic but directly relevant in the context of passenger claims under Regulation (EC) No 261/2004. The classification of an event as a “fuel shortage” determines whether an airline may rely on the narrow exemption of “extraordinary circumstances” under Article 5(3), thereby avoiding compensation obligations. For airlines, this distinction is therefore critical. It determines whether a cancellation or delay may fall within the scope of an exemption.

II. The Commission Notice: important guidance, not the final answer

The Commission has tried to provide guidance, confirming in particular that a local fuel shortage may qualify as an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004, whereas cancellations based on economic considerations such as increased fuel prices do not. This may be seen as an important signal.

This aligns with the European Court of Justice (ECJ) judgement in Germanwings (C‑501/17), which mandates that for an event to qualify as an extraordinary circumstance, it must be inherently external and completely outside the actual control of the air carrier. The case itself concerned operational disruptions that arose in the course of an airline activity and raised the question whether such events could still fall within the scope of Article 5(3). The Court denied this by emphasizing that only truly external events, i.e. those not intrinsically linked to the airline’s operational sphere, can qualify as extraordinary.

This case law is of particular importance in the present context because it provides the conceptual framework against which the Commission’s distinction must be assessed. The Notice does not establish new legal criteria, but rather applies the principles developed by the ECJ to the specific scenario of disruptions in the aviation fuel supply chain.

In this context, it is important to consider the full “well‑to‑wing” perspective. Fuel disruptions are typically not isolated events but originate across a complex supply chain – from refining and transport to storage and airport distribution infrastructure. From a legal standpoint, this reinforces the need to distinguish clearly between disruptions arising within the airline’s operational sphere and those caused by external infrastructure, which may potentially satisfy the requirements for extraordinary circumstances.

Against this background, the decisive question is whether a fuel-related disruption satisfies the strict requirements developed in the above mentioned Germanwings ECJ decision, namely that the event is external to the airline’s normal operations and beyond its actual control. A physical fuel shortage at a specific airport may meet this requirements, as it typically originates in the external supply infrastructure. By contrast, increased fuel prices, even if economically significant, remain part of the normal business risks of operating an airline.

The Germanwings judgment thus serves as the central legal benchmark for interpreting the Commission’s guidance. It provides the baseline for the classification of fuel shortages as extraordinary circumstances. However, it must be kept in mind that the Notice reflects the Commission’s interpretation, but it is neither binding on national courts nor decisive in individual disputes. For airlines, this means that their obligations to compensate passengers are not defined by the Notice alone, but by how national courts ultimately apply the law in specific cases.

At the same time, the strict distinction drawn by the Commission between physical fuel shortages and price-related disruptions is not without controversy. In a situation characterised by extreme market volatility and geopolitical disruption, the separation between “availability” and “price” may, in practice, prove to be artificial. From an operational perspective, exceptionally high and rapidly escalating fuel prices can have effects comparable to those of a physical shortage, effectively constraining the airline’s ability to operate certain routes or maintain scheduled services.

This raises the question whether, in such crisis scenarios, the economic dimension of fuel supply should always be treated as part of the normal business risk of an airline. Where price developments are directly triggered by external events of an exceptional nature, such as armed conflict or systemic supply disruptions, there are arguments to suggest that the current legal framework may not fully capture the operational realities faced by carriers. The Commission’s approach therefore provides clarity but may at the same time leave relevant grey areas unresolved.

III. Where cases will actually be decided

In practice, disputes will not turn on abstract definitions but on the concrete facts of each individual case. Key questions will include whether there was a real, physical shortage at the specific airport, whether that shortage actually prevented the operation of the particular flight, and whether the airline took all reasonable measures to avoid the disruption.

Even where a shortage exists, this does not automatically exclude the liability from compensation under Article 5(3) of Regulation (EC) No 261/2004. From an airline perspective, each case ultimately stands or falls on its individual facts and the quality of the supporting evidence.

The airline must demonstrate a clear causal link and meet a high evidentiary threshold, typically through documentation such as NOTAMs, supplier confirmations, and operational or internal reports. To successfully clear this hurdle, carriers must navigate two strict judicial barriers.

1. The remaining causailty trap: It is insufficient to point to a regional crisis in the Middle East or a macro-economic fuel deficit. The carrier must provide strict and clear evidence that a physical lack of fuel at airport X on day Y was the direct, exclusive, and unavoidable cause of that specific flight’s cancellation or delay. While the Commission expressly relies on the ECJ judgment in SATA International (C-308/21) to confirm that a general failure of the airport’s refuelling system can constitute an extraordinary circumstance, the carrier still bears the heavy burden of proving that this specific event directly caused the individual flight disruption.

2. The reasonable measures: Proving the physical shortage is only half the battle. The air carrier must also prove that it exhausted all reasonable measures to bypass the disruption. National courts at least in Germany interpret this requirement often in hindsight and apply a hyper-strict standard. Judges may assess operational decisions: Did the airline attempt to reorganize its fleet rotation? Did it explore alternative supply chains, such as utilizing Jet A instead of Jet A-1 as outlined in EASA SIB No. 2026-04? Could the airline have carried extra fuel from the departure airport (tankering) under the ReFuelEU Aviation safety exemptions? What follows is uncertainty when predicting if all this is sufficient to be exempted from liability. However, recording as much information as possible is the key factor in order to have a chance to freed from liability obligations.

IV. Operational and regulatory implications beyond passenger claims

Beyond the assessment of passenger compensation, the Notice also contains several operationally relevant clarifications that directly affect airline decision-making.

First, with regard to airport slots, the Commission confirms that disruptions caused by fuel shortages may qualify as justified non-use of slots (JNUS) under Regulation (EEC) No 95/93. This is of particular importance for airlines seeking to preserve their historic slot portfolios in situations where flights cannot be operated due to supply constraints at a specific airport.

Second, the Notice addresses fuel uplift obligations under the ReFuelEU Aviation framework. While airlines are generally required to uplift at least 90% of their fuel at EU airports, confirmed fuel shortages typically evidenced by NOTAMs may justify deviations from this requirement on safety grounds. This provides a degree of operational flexibility, particularly in scenarios where return flights are at risk due to insufficient fuel availability at the destination.

Finally, the Commission reiterates the limits imposed by Regulation (EC) No 1008/2008 with regard to pricing. Airlines are not permitted to introduce post-sale fuel surcharges in response to rising fuel costs once a ticket has been sold. Any adjustments to pricing must therefore be incorporated into future bookings and transparently communicated at the time of purchase.

In essence, these clarifications demonstrate that fuel-related disruptions are not only relevant for passenger claims but also have significant implications for slot management, operational planning, and commercial strategies.

V. Passenger rights remain the starting point

Despite the current crisis, the system continues to follow a clear hierarchy. Passenger rights apply in full, exceptions are interpreted narrowly, and the burden of proof lies with the airline.

Passengers therefore retain, in particular, the right to re-routing or reimbursement pursuant to Article 8 of Regulation (EC) No 261/2004, the right to care such as meals and accommodation under Article 9 of Regulation (EC) No 261/2004, and the right to compensation according to Article 7 of Regulation (EC) No 261/2004 unless the strict conditions for an exemption under Article 5(3) of Regulation (EC) No 261/2004 are met. The Commission’s guidance reinforces this approach: crisis situations do not lower the level of protection but merely clarify the circumstances under which exceptions may apply.

VI. Why this matters now?

The current environment is characterised by a combination of rising fuel prices, isolated supply disruptions, and increasingly complex operational decisions. This creates a grey area in which economic and physical factors may overlap.

It is precisely within this grey area that disputes are likely to arise. Airlines may argue that disruptions are caused by extraordinary circumstances, while passengers – or in practice more often the claim management companies – may challenge whether the required threshold of evidence has been met. As past case law has shown, courts tend to apply strict standards when reviewing such situations, particularly where passenger rights are concerned.

VII. Key takeaway: clarification, no final certainty

The Commission’s Notice of 8 May 2026 tries to provide some regulatory recommendation 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 considering 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.

VIII. Conclusion

A jet fuel shortage is not a blanket cheque to justify a disruption. It is a fact-specific concept, narrowly interpreted within a system that continues to prioritise passenger protection. The Commission has set out important guiding principles. However, the decisive question whether the airlines owe compensation will ultimately be answered where it always ends: before the courts.

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.