EU261 Rights Independent

Current position

Your rights have not changed yet. The reform is now law — Regulation (EU) 2026/2202, published 2 October 2026 — but it applies only from 23 October 2027. It keeps the three-hour threshold and the €250–€600 amounts. What changes in 2027 →

Checked

Art 5(3)

The airline blamed air traffic control

This is one of the defences that usually holds — but, as ever, only for the delay it genuinely caused.

Checked against its sources

The short answer

Usually not payable. ATC restrictions and airport congestion are outside the airline's control and generally count as extraordinary.

The one thing to know: Air traffic control flow restrictions, airspace closures and airport slot congestion are external to the airline. Where they are the real cause, no compensation is due.

How it actually works

Recital 15 of the Regulation is unusually direct: 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” causes a long delay, an overnight delay or a cancellation, provided the airline took all reasonable measures. Strikes by air traffic controllers can also be extraordinary (Airhelp v SAS, C-28/20, 2021), and the Commission's 2024 guidelines treat delays at an airport congested by bad weather the same way.

Genuinely external
The airline does not run the airspace. Where an ATC restriction genuinely grounded or delayed your flight, that is a valid extraordinary circumstance.
But check the real cause
"ATC" is sometimes offered where the true cause was an aircraft already running late. A slot lost because the aircraft or crew was not ready is the airline's problem, not air traffic control's. Ask what the aircraft did before your flight.
Only the ATC share counts
Under Pešková (C-315/15, 2017) the delay caused by the extraordinary event is deducted and the rest is measured against the three-hour threshold. A 40-minute flow restriction does not explain a four-hour delay.
Knock-on from earlier flights
In Transportes Aéreos Portugueses (C-74/19, 11 June 2020) the Court held that an airline may rely on an extraordinary circumstance that affected a previous flight it operated with the same aircraft, if there is a direct causal link to the later delay. The Commission's guidelines note a later ruling, Austrian Airlines (C-826/19), accepting a circumstance three flights back in the rotation on the same condition.
Care still applies
Even with a valid ATC defence, the airline still owes you meals and a hotel while you wait — that duty has no extraordinary-circumstances exemption.
See what you’re owed instead →

No claims service can help where no compensation is due — anyone who says otherwise is selling. Your care and refund rights still stand.

What Transportes Aéreos Portugueses actually decided

The case is cited by airlines and passengers alike, usually selectively. The facts: on a flight from Lisbon to Fortaleza a passenger bit another passenger and assaulted crew, and the aircraft diverted to Gran Canaria to offload him. The same aircraft then flew Fortaleza–Lisbon late, and the claimant missed the connection to Oslo and arrived almost 24 hours late. The Court made three rulings:

  1. Unruly passengers. A diversion to offload an unruly passenger is an extraordinary circumstance, unless the airline contributed to the behaviour or failed to act on warning signs.
  2. Earlier flights. The airline may rely on an extraordinary circumstance that hit an earlier flight by the same aircraft, provided there is a direct causal link to the delayed flight. That is for the national court to judge, looking at how the airline operates the aircraft.
  3. Rerouting. Putting the passenger on the airline's own next flight, arriving the following day, is not a “reasonable measure” unless no other direct or indirect flight, operated by it or any other airline, would have arrived sooner, or such rerouting was an intolerable sacrifice for the airline.

The third point is the one airlines leave out. An ATC defence can succeed on the cause and still fail on what the airline did next.

Ask the airline, in writing

  1. The ATC restriction it relies on: where it applied, the slot or departure time it was given, and the stated reason.
  2. Whether the restriction hit your flight or an earlier flight by the same aircraft, with a timeline.
  3. How much of your total delay it attributes to the restriction, and what caused the rest.
  4. Which rerouting options, including other airlines, it considered for you.

What you are owed whatever the cause

An ATC defence that holds still leaves most of your rights in place. Extraordinary circumstances only switch off the fixed compensation in Article 7. They do not switch off the rest.

Care while you wait
Meals and refreshments in proportion to the wait, two phone calls or emails, and a hotel plus transport to it if you are stuck overnight Art 9. For a delay this starts at 2, 3 or 4 hours depending on distance Art 6(1). In McDonagh (C-12/11, 2013) the volcanic-ash closure of European airspace was extraordinary, and the airline still owed care for the whole wait, with no time limit.
Refund or rerouting
If the flight is cancelled, you choose between a refund of the unused ticket within seven days and rerouting at the earliest opportunity Art 5(1)(a), Art 8. If a delay reaches five hours you can abandon the trip and take the refund instead Art 6(1)(iii).
If the airline did not provide it
Buy what is reasonable, keep every receipt and claim it back. The Court limits this to costs that were necessary, appropriate and reasonable, so a sandwich and a mid-range hotel, not a suite.

Stranded overnight

No hotel from the airline?

Book a reasonable room near the airport yourself and keep the receipt, then claim the cost back from the airline. You recover what was necessary, appropriate and reasonable: a mid-range hotel, not a suite (McDonagh, C-12/11).

Hotels nearest each airport, on Agoda. These are affiliate links: we may earn a commission, at no extra cost to you. Disclosure.

What changes from 23 October 2027

Regulation (EU) 2026/2202 adds a non-exhaustive Annex of extraordinary circumstances to Regulation 261, applicable from 23 October 2027. Air traffic control is point (3)(d):

Annex (3)(d): “air traffic management or airport capacity restrictions, or closure of airspace, including runway closures by the authorities, provided that the event results from a decision that was beyond the actual control of the operating air carrier”.

Nearby entries cover unscheduled airport closures (3)(e), strikes at air navigation service providers (3)(g), operational shortcomings of airport essential service providers the airline cannot effectively control (3)(l), and unruly passengers (2)(a), the last “unless the operating air carrier caused the occurrence of that behaviour”. The airline must still prove a direct causal link to your flight and all reasonable measures new Art 6c(2), and a refusal must name the circumstance and explain both new Art 7(9). Where the disruption was extraordinary and unavoidable, hotel nights may be capped at three new Art 9(6). The full reform explained →

UK261 is not affected by the reform.

What to do now

  1. Photograph the evidence — the departure board, the app before it updates, the arrival time when the door opens. The full checklist →
  2. Write to the airline, quoting the article and the flight. Use the template →
  3. Give them 28 days, then escalate free to the national enforcement body.
  4. Check your time limit — it varies by country: six years in England, one year in Poland and Belgium, and unsettled in Italy. See yours →

Questions

The airline blamed air traffic control: am I owed compensation?

Usually not payable. ATC restrictions and airport congestion are outside the airline's control and generally count as extraordinary.

The ATC slot delay was short but we arrived more than three hours late. Can I claim?

Possibly. In Pešková (C-315/15, 2017) the Court of Justice held that only the delay caused by the extraordinary event is deducted. If the rest of the arrival delay, the part that was the airline's own doing, still exceeds three hours, compensation is due.

The airline says a problem on an earlier flight caused my delay. Does that count?

Only if the earlier problem was itself extraordinary and there is a direct causal link to your flight. In Transportes Aéreos Portugueses (C-74/19, 2020) the Court accepted that an airline may rely on an extraordinary circumstance that hit an earlier flight by the same aircraft on that condition. An ordinary cause on the earlier flight, such as a technical fault, does not help the airline.

Our flight diverted to drop off an unruly passenger. Am I owed compensation?

Usually not. In the same TAP judgment the Court held that a diversion to offload an unruly passenger is an extraordinary circumstance, unless the airline contributed to the behaviour or failed to take appropriate measures in view of warning signs of it.

How do I claim it?

Write to the airline first, quoting the article and flight, and allow 28 days. It is free and you keep the whole amount. Escalate to the national enforcement body if refused.