The battleground · Article 5(3)
“Extraordinary circumstances,” and when it’s nonsense
If the airline proves the disruption was caused by extraordinary circumstances that all reasonable measures could not have avoided, no compensation is due. Care and your refund or rerouting are still owed. Airlines stretch the phrase well past where the Court of Justice allows, and this page shows where the line sits today and where the 2027 list puts it.
Checked against its sources
The two-limb test
To refuse, the airline must prove both. The test comes from Wallentin-Hermann and Sturgeon, and the burden is on the airline, not on you.
1. An extraordinary event
An event that, by its nature or origin, is not inherent in the normal exercise of the airline’s activity and is beyond its actual control. A screw on the runway qualifies. A worn-out part does not.
2. It could not be avoided
The disruption could not have been avoided even if all reasonable measures had been taken. In Germanwings v Pauels that meant proving the airline used all the staff, equipment and money at its disposal. Airlines often prove the event and skip this half.
Usually still payable
Airlines describe these as extraordinary. The Court of Justice disagrees.
| Cause | Why it doesn’t excuse them | Case |
|---|---|---|
| Technical or mechanical faults | A fault that arises in normal operation, even an unexpected one not caught in routine checks, is inherent in running an airline. Complying with minimum maintenance rules is not enough on its own. | Wallentin-Hermann C-549/07 van der Lans C-257/14 |
| A wildcat strike by the airline’s own crew | Spontaneous mass sick leave after a surprise restructuring stays within the airline’s control. | Krüsemann C-195/17 |
| A lawful strike by the airline’s own staff over pay or conditions | A union-called strike over the employment relationship is not extraordinary. | Airhelp v SAS C-28/20 |
| Staff shortages and crew rostering | Our view: these are the airline’s own resourcing decisions. No judgment on this page rules on them directly. | — |
| A late inbound aircraft | Only excused if an extraordinary circumstance hit an earlier flight by the same aircraft and caused your delay directly. A knock-on from the airline’s own problem is not. | Commission Guidelines 2024 |
| Overbooking | Denied boarding under Article 4 has no extraordinary-circumstances defence at all. | Art 4(3) |
Usually genuinely extraordinary
Here the defence is real, but read the Pešková rule below before you give up.
| Cause | Why it can excuse them | Source |
|---|---|---|
| Weather incompatible with safe operation | Recital 14 names it, but only the delay the weather actually caused is excused, and the airline must show it took all reasonable measures. | Commission Guidelines 2024 |
| Air traffic management decisions | Recital 15 names them. Outside the airline’s control, but the airline still has to prove the direct link to your flight. | Commission Guidelines 2024 |
| Strikes by air traffic controllers or airport staff | External to the airline’s activity, so they can be extraordinary. | Commission Guidelines 2024 |
| Bird strikes | External, but see the Pešková rule below. | Pešková C-315/15 |
| Debris or fuel on the runway | A foreign object that damages a tyre is extraordinary. So is petrol from another aircraft that closes the runway. | Germanwings v Pauels C-501/17 Moens C-159/18 |
| Volcanic ash and airspace closure | Extraordinary, so no compensation. Care is still owed in full. | McDonagh C-12/11 |
The Pešková rule
A bird strike is extraordinary. But in Pešková the Court held that delay caused by the airline’s own choice to repeat safety checks an authorised expert had already done is not. Where a delay has several causes, the time due to the extraordinary event is deducted, and compensation depends on whether what remains still reaches three hours. So when the airline names a real extraordinary cause, ask whether that cause accounts for the whole delay, or whether its own handling pushed it past three hours.
If your claim was refused on extraordinary circumstances and the facts above don’t fit, challenge it. The template does exactly that.
From 23 October 2027: the Annex list against today’s case law
Regulation (EU) 2026/2202 adds Article 6c and an Annex listing circumstances “considered as extraordinary”. The list is non-exhaustive, most items apply only where the event is incompatible with safe operation, and the airline must still prove a direct causal link and that it took all reasonable measures (new Art 6c(2)). When it refuses, it must name the Annex item it relies on (new Art 7(9)). None of this applies before 23 October 2027. The full reform →
| Annex item | What the Annex lists | Case law today |
|---|---|---|
| 1(a)–(b) | Natural disasters, and environmental disasters not caused by the airline, incompatible with safe operation. | Consistent. The 2010 ash-cloud airspace closure was extraordinary (McDonagh C-12/11). |
| 1(c) | Meteorological conditions, or weather damage to the aircraft, incompatible with safe operation. | Consistent. Recital 14 already names such weather. Courts assess it case by case. |
| 1(d) | War or insurrection incompatible with safe operation. | Consistent. Recital 14 names political instability. |
| 1(e) | Serious cross-border threats to health under Regulation (EU) 2022/2371. | No judgment on this page rules on it. |
| 2(a) | Unruly passenger incidents, unless the airline caused the behaviour. | No judgment on this page rules on it. |
| 2(b) | Passenger health risks or medical emergencies found at short notice before departure, or forcing a diversion. | No judgment on this page rules on it. |
| 3(a)–(b) | Sabotage, terrorism, and other unlawful acts or security risks beyond the airline’s control. | Consistent. Recital 14 names security risks. |
| 3(c) | Hidden manufacturing or design defects revealed by the manufacturer or a competent authority. | Consistent. Wallentin-Hermann C-549/07 gave this as its example of a technical problem that can be extraordinary. Ordinary faults remain payable (van der Lans C-257/14). |
| 3(d) | Air traffic management or airport capacity restrictions, airspace closures and runway closures by the authorities, beyond the airline’s control. | Consistent. Recital 15; Moens C-159/18. |
| 3(e) | Unscheduled airport closure, including system failure, power outage, communications collapse or an activated airport contingency plan. | No judgment on this page rules on it. |
| 3(f) | A generalised breakdown of the refuelling system not linked to the aircraft and beyond the airline’s control. | No judgment on this page rules on it. |
| 3(g) | Strikes at airport operators, air navigation service providers or ground handlers the airline did not choose. | Consistent. External strikes can be extraordinary (Commission Guidelines 2024). |
| 3(h) | Strikes at the airline itself, only where they originate from demands that only public authorities can satisfy. | The same line the Court drew: Airhelp v SAS C-28/20, paragraph 45. Wildcat and pay strikes stay payable (Krüsemann C-195/17). |
| 3(i) | Damage to the aircraft by third parties the airline is not responsible for, by animals or by foreign objects, incompatible with safe operation. | Consistent: Pešková C-315/15; Germanwings v Pauels C-501/17. |
| 3(j) | A contaminated runway, where the contamination does not come from the airline. | Consistent: Moens C-159/18. |
| 3(k) | After departure, a serious medical emergency of a crew member forcing a diversion. | No judgment on this page rules on it. |
| 3(l) | Operational failures of airport, air-navigation or ground-handling providers the airline could not effectively control. | Possibly wider than today. In the Siewert order (C-394/14), cited in Germanwings v Pauels C-501/17, the Court held that airport boarding stairs hitting an aircraft were not extraordinary. How the courts reconcile the two is still open. |
Questions
Is bad weather always an extraordinary circumstance?
No. Weather can be extraordinary, but the airline must prove it caused your delay or cancellation directly and that all reasonable measures could not have avoided it. Only the delay the weather caused is excused. If other flights were operating normally, ask why yours was not.
Is a strike an extraordinary circumstance?
It depends who struck and why. A strike by the airline’s own staff over pay or conditions is not extraordinary, whether it is a wildcat strike (Krüsemann) or a lawful union strike (Airhelp v SAS). A strike by air traffic controllers or airport staff can be, because it is external to the airline.
The airline says technical fault. Do I still get paid?
Usually yes. A technical fault that arises in normal operation is not extraordinary, even if it was unexpected and missed in routine checks (Wallentin-Hermann, van der Lans). A hidden manufacturing defect revealed by the manufacturer or an authority can be different.
What changes on 23 October 2027?
Regulation (EU) 2026/2202 adds a non-exhaustive Annex listing extraordinary circumstances. The airline must still prove a direct causal link and that it took all reasonable measures, and when it refuses a claim it must name the circumstance it relies on. Until then, the case law above decides.