D S.A. v P S.A (T-134/25)

Contents

Judgment of the General Court (Fifth Chamber, sitting with five Judges)21 January 2026^note(Reference for a preliminary ruling — Air transport — Compensation to passengers in the event of a long delay or cancellation of a flight — Exemption — Extraordinary circumstances — Article 5(3) of Regulation (EC) No 261/2004 — Air traffic management decision — Allocation of delayed departure slots due to adverse weather conditions — Possibility of relying on a flight subsequent to that affected by the occurrence of an extraordinary circumstance)In Case T‑134/25,REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland), made by decision of 21 November 2024, received at the Court of Justice on 12 February 2025, in the proceedingsD S.A.vP S.A.,THE GENERAL COURT (Fifth Chamber, sitting with five Judges),composed of M. Sampol Pucurull, President, T. Pynnä (Rapporteur), J. Laitenberger, M. Stancu and W. Valasidis, Judges,Advocate General: J. Martín y Pérez de Nanclares,Registrar: V. Di Bucci,having regard to the transfer of the request for a preliminary ruling to the General Court by the Court of Justice on 25 February 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,having regard to the subject matter referred to in point (e) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,having regard to the written part of the procedure,after considering the observations submitted on behalf of:– D, by P.P. Gad, adwokat,– P, by E. Uznańska, adwokatka,– the Polish Government, by B. Majczyna and D. Lutostańska, acting as Agents,– the European Commission, by B. Sasinowska and N. Yerrell, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2The request was made in proceedings between, on the one hand, D S.A., a commercial company, and, on the other, P S.A., an air transport company, concerning the latter’s refusal to compensate a passenger whose flight had been significantly delayed and who had assigned her right to flat-rate compensation to D.

Legal framework

3Recitals 1, 14 and 15 of Regulation No 261/2004 state the following:(1) Action by the [European Union] in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.…(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.(15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.’

4Article 5 of Regulation No 261/2004 provides:1.In case of cancellation of a flight, the passengers concerned shall:…(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless [they are informed of the cancellation]:…3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.…’

5Article 7(1) of Regulation No 261/2004 provides as follows:‘Where reference is made to this Article, passengers shall receive compensation amounting to:(a) EUR 250 for all flights of 1500 kilometres or less;(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;(c) EUR 600 for all flights not falling under (a) or (b).…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

6A was a passenger on flight LO 6110 Izmir–Warsaw on 25 July 2023.

7The aircraft scheduled to operate flight LO 6110 was due to take off from Izmir (Türkiye) airport at 18:20 UTC and land in Warsaw (Poland) at 21:10 UTC.

8In actual fact, flight LO 6110 took off at 21:40 UTC and landed the next day at 00:17 UTC, thus with a delay in arrival of more than three hours.

9Flight LO 6110 was preceded by flight LO 6111, which was operated by the same aircraft in ‘rotation’. The aircraft scheduled to operate flight LO 6111 was due to take off from Katowice (Poland) at 14:55 UTC and land in Izmir at 17:20 UTC. At 12:55 UTC, the air carrier concerned received a Slot Allocation Message (SAM) from the air traffic control services, stating that flight LO 6111 had finally been allocated a take-off slot at 16:30 UTC. The allocation decision was based on an Air Traffic Flow Management (ATFM) measure relating to airspace restrictions in Hungary and Romania implemented due to adverse weather conditions. At 15:04 UTC, the same carrier sent a message indicating that it was ready to depart (REA), requesting permission to take off earlier. However, that message did not lead the air traffic control services to change their slot allocation decision, nor did it result in flight LO 6111 departing earlier. Ultimately, that flight took off at 16:02 UTC and landed at 18:32 UTC, that is to say, arriving 1 hour and 12 minutes late.

10After landing in Izmir, a technical fault was found on the aircraft. It took two hours and eight minutes to repair it.

11On 26 July 2023, D acquired from passenger A on flight LO 6110 her right to flat-rate compensation.

12Before the referring court, the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland), D sought payment from P, the air carrier that had operated flight LO 6110, in the amount of EUR 400, plus statutory default interest from 17 August 2023 until the date of payment.

13The referring court notes that, if the loss of time resulting from the air traffic management measures imposed on the carrier concerned were to be deducted from the total duration of the delay, flight LO 6110 would have been delayed by less than three hours. It is uncertain, however, whether it is possible to classify decisions relating to delayed slot allocations, such as those at issue in the main proceedings, as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.

14According to the referring court, it seems possible to take the view that, since air traffic management decisions are commonplace and inextricably linked to air traffic, they do not in principle constitute ‘extraordinary circumstances’. However, the carrier concerned is required to comply with the instructions of air traffic management services, including where those services postpone the initially scheduled take-off time of an aircraft as a result of an air traffic management decision relating to a previous flight in the rotation.

15In those circumstances, the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 5(3) of [Regulation No 261/2004], be interpreted as meaning that every air traffic management decision, irrespective of its duration, constitutes an extraordinary circumstance, even if it does not of itself cause a delay of at least three hours?(2) If not every air traffic management decision constitutes an extraordinary circumstance, should the national court examine what the basis for the air traffic management decision was, for example adverse weather conditions resulting in limited sector capacity on the route of the flight, and is it then entitled to assess whether or not it constituted an extraordinary circumstance?(3) If a passenger’s flight is delayed for more than three hours, including as a result of an air traffic management decision imposed on the flight immediately preceding the passenger’s flight, in view of limited sector capacity [on] the route of the flight resulting from adverse weather conditions, does that air traffic management decision constitute an extraordinary circumstance?(4) In that situation, must the air traffic management decision concern directly the delayed flight or may it also concern an earlier flight in the rotation?’

Consideration of the questions referred

The first and second questions

16By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that every air traffic management decision, irrespective of its duration or the reasons for it, constitutes an ‘extraordinary circumstance’ and, if not, whether account must be taken of the reason for an air traffic management decision in order to assess whether it is an ‘extraordinary circumstance’.

17In order to answer those questions, it is necessary to determine, in the first place, whether every air traffic management decision constitutes an ‘extraordinary circumstance’.

18In that regard, it should be recalled at the outset that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 24 and the case-law cited).

19Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, releases the air carrier concerned from that obligation to pay compensation if that carrier can prove that the cancellation or long delay in arrival is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 25 and the case-law cited).

20Since Article 5(3) of Regulation No 261/2004 constitutes a derogation from the principle that passengers are entitled to compensation, and given the objective pursued by Regulation No 261/2004, which is, as is apparent from recital 1 thereof, to ensure a high level of protection for passengers, the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 must be strictly interpreted (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 26 and the case-law cited).

21In that regard, it should be borne in mind that the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that carrier’s actual control; those two conditions are cumulative and their fulfilment must be assessed on a case-by-case basis (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 27 and the case-law cited).

22In addition, the Court of Justice has already had occasion to hold that even the circumstances referred to in recital 14 of Regulation No 261/2004 as examples of ‘extraordinary circumstances’ (political instability, meteorological conditions, security risks, unexpected shortcomings, strikes) were not necessarily and automatically grounds of exemption from the obligation to pay compensation to the passengers concerned by the cancellation of a flight provided for in Article 5(1)(c) of Regulation No 261/2004 and that, consequently, it was necessary to assess, on a case-by-case basis, if they fulfilled the two cumulative conditions recalled in paragraph 21 of the present judgment (see judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 34 and the case-law cited).

23It follows that the case-law referred to in paragraphs 20 to 22 above, according to which the concept of ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, must be interpreted strictly and according to which the cumulative conditions that must be satisfied in order for events to be capable of being classified as ‘extraordinary circumstances’ must be assessed on a case-by-case basis, precludes every air traffic management decision from constituting an ‘extraordinary circumstance’.

24That finding is not called into question by recital 15 of Regulation No 261/2004, which states that ‘extraordinary circumstances … exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay’. As D and the European Commission stated in their written observations, the air carrier itself may have contributed to certain air traffic management decisions.

25It follows that not every air traffic management decision of itself constitutes an ‘extraordinary circumstance’.

26Therefore, it is necessary to assess, in the second place, whether and to what extent an air traffic management decision is capable of constituting an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004, as interpreted by the Court of Justice in its case-law referred to in paragraph 21 above.

27First, it must be determined whether an air traffic management decision is capable of constituting, by its nature or origin, an event that is not inherent in the normal exercise of the activity of the air carrier concerned.

28In that regard, it should be noted that, logically, an air traffic management decision cannot be regarded as intrinsically linked to the operation of the aircraft that made the delayed flight (see, to that effect and by analogy, judgment of 26 June 2019, Moens, C‑159/18, EU:C:2019:535, paragraph 18). Furthermore, such a decision does not form part of the activity of the air carrier concerned, but falls within the activities and competence of the air traffic management services.

29Consequently, such a circumstance cannot be regarded as inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned.

30Secondly, it is necessary to assess whether an air traffic management decision must be regarded as constituting an event entirely beyond the actual control of the air carrier concerned, namely an event over which that carrier does not have any control (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 36).

31In that regard, it is apparent from the case-law of the Court of Justice relating to the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 that events whose origin is ‘internal’ must be distinguished from those whose origin is ‘external’ to the air carrier concerned, and only the latter are capable of falling outside the actual control of that carrier. The concept of ‘events of external origin’ encompasses events which result from the activity of the air carrier and from external circumstances which are more or less frequent in practice but which the air carrier does not control because they arise from an act of a third party, such as another air carrier or a public or private operator interfering with flight or airport activity (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 38 and the case-law cited).

32The concept of ‘extraordinary circumstances’ thus encompasses, by way of the occurrence of such ‘external’ events, a collision between an aircraft and a bird, damage to an aircraft tyre caused by a foreign object, such as loose debris lying on an airport runway, the presence of petrol on an airport runway which has led to the closure of the runway, a collision between the elevator of an aircraft in a parking position and the winglet of another airline’s aircraft, caused by the movement of the latter aircraft, but also a hidden manufacturing defect or acts of sabotage or terrorism (see judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 40 and the case-law cited).

33As regards air traffic management decisions, it must be held that, provided that the air carrier concerned did not contribute to those decisions, they are beyond its actual control, given that (i) air traffic management is in no way within the competence of that carrier, (ii) air traffic management decisions taken by the competent services constitute the act of a third party and (iii) those decisions are binding on the air carrier concerned (see, to that effect and by analogy, judgment of 26 June 2019, Moens, C‑159/18, EU:C:2019:535, paragraph 20). The carrier is required to comply with those decisions, even when it is ready to operate the flight, as was the case in the main proceedings.

34In that context, the relevant circumstance is not the reason for the air traffic management decision (namely, in the main proceedings, adverse weather conditions resulting in limited sector capacity on the route of the flight), but that decision itself, in so far as it is that decision that externally affects the performance of the scheduled flight.

35By contrast, if the air carrier itself contributed to an air traffic management decision, as might be the case, for example, if it had requested that a new slot be allocated due to its own operational unavailability (see paragraph 24 above), that decision cannot be considered an ‘event of external origin’.

36It follows that an air traffic management decision is likely to constitute an ‘extraordinary circumstance’, irrespective of the reason for it, if it is established that that decision was beyond the actual control of the air carrier concerned, in particular where it can be ruled out that that carrier contributed to that decision, which it is for the referring court to ascertain.

37In the third and last place, it is necessary to determine whether an air traffic management decision may constitute an ‘extraordinary circumstance’ even if it does not of itself cause a delay of at least three hours.

38In that regard, it is clear from the case-law that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that, in the event of a delay to a flight equal to or in excess of three hours in arrival caused not only by extraordinary circumstances, which could not have been avoided by measures appropriate to the situation and which was subject to all reasonable measures by the air carrier to avoid the consequences thereof, but also in other circumstances not in that category, the delay caused by the first event must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival of that flight must be paid as provided for in Article 7 of that regulation (judgment of 4 May 2017, Pešková and Peška, C‑315/15, EU:C:2017:342, paragraph 54).

39The case-law referred to in paragraph 38 above implies that an event may constitute an ‘extraordinary circumstance’ even if it did not of itself cause a delay of at least three hours.

40It follows that an air traffic management decision may constitute an ‘extraordinary circumstance’ even if it does not of itself lead to a delay of at least three hours.

41In the light of all the foregoing considerations, the answer to the first and second questions is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an air traffic management decision may constitute an ‘extraordinary circumstance’, within the meaning of that provision, irrespective of the duration of the delay entailed and the reason for it, if it is established that that decision was beyond the actual control of the air carrier concerned, in particular where it can be ruled out that that carrier contributed to that decision, which it is for the referring court to ascertain.

The third and fourth questions

42By its third and fourth questions, which it is appropriate to examine together, the referring court asks, in essence, if, in order to constitute an ‘extraordinary circumstance’, the air traffic management decision must concern a flight that was actually delayed, or if it may also concern a previous flight in the rotation.

43In that regard, it is clear from the case-law that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that, in order to be exempted from its obligation to compensate passengers in the event of a long delay or cancellation of a flight that it operated, an air carrier may rely on an ‘extraordinary circumstance’ which affected a previous flight which it operated using the same aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the subsequent flight, which is for the referring court to determine, having regard in particular to the conditions of operation of the aircraft in question by the operating air carrier concerned (judgments of 11 June 2020, Transportes Aéreos Portugueses, C‑74/19, EU:C:2020:460, paragraph 55, and of 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraph 57).

44Moreover, as regards air traffic management decisions, it should be noted, as the Commission has done, that recital 15 of Regulation No 261/2004, which states that ‘extraordinary circumstances … exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay … of one or more flights by that aircraft’, requires that the air traffic management decision concern not a specific flight but a specific aircraft.

45In those circumstances, the answer to the third and fourth questions is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that, if it is also established that that decision was beyond its actual control, an air carrier may rely, as an ‘extraordinary circumstance’ within the meaning of that provision, on an air traffic management decision that affected a previous flight that it operated using the same aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the flight that it subsequently operated, which it is for the referring court to assess, taking into account, inter alia, the conditions of operation of the aircraft in question by that carrier.

Costs

46Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds,THE GENERAL COURT (Fifth Chamber, sitting with five Judges)hereby rules:

1.Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91,must be interpreted as meaning that an air traffic management decision may constitute an ‘extraordinary circumstance’, within the meaning of that provision, irrespective of the duration of the delay entailed and the reason for it, if it is established that that decision was beyond the actual control of the air carrier concerned, in particular where it can be ruled out that that carrier contributed to that decision, which it is for the referring court to ascertain.

2.Article 5(3) of Regulation No 261/2004must be interpreted as meaning that, if it is also established that that decision was beyond its actual control, an air carrier may rely, as an ‘extraordinary circumstance’ within the meaning of that provision, on an air traffic management decision that affected a previous flight that it operated using the same aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the flight that it subsequently operated, which it is for the referring court to assess, taking into account, inter alia, the conditions of operation of the aircraft in question by that carrier.

Delivered in open court in Luxembourg on 21 January 2026.