Provisional text
JUDGMENT OF THE COURT (Second Chamber)
8 October 2026 (*)
( Review of the judgment of the General Court of the European Union of 21 January 2026, D (Air traffic management decision) (T‑134/25, EU:T:2026:35) – Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Compensation to passengers in the event of a long delay of a flight – Conditions – Article 5(3) – Concept of ‘extraordinary circumstances’ – Air traffic management decision – Allocation of delayed departure slots due to adverse weather conditions – Adverse effect on the unity and consistency of EU law )
In Case C‑108/26 RX,
REVIEW, pursuant to the third subparagraph of Article 256(3) TFEU, of the judgment of the General Court of the European Union of 21 January 2026 in D (Air traffic management decision) (T‑134/25, EU:T:2026:35), by which the General Court ruled on the 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 proceedings
D S.A.
v
P S.A.
THE COURT (Second Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, Z. Csehi, M. Gavalec and F. Schalin, Judges,
Advocate General: R. Norkus,
Registrar: V. Di Bucci,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– D S.A., by P.P. Gad, adwokat,
– P S.A., 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 regard to Article 62a and the second paragraph of Article 62b of the Statute of the Court of Justice of the European Union,
after hearing the Opinion of the Advocate General at the sitting on 10 September 2026,
gives the following
Judgment
1 The purpose of the present proceedings is to review the judgment of the General Court of the European Union of 21 January 2026 in D (Air traffic management decision) (T‑134/25, ‘the judgment under review’, EU:T:2026:35), by which the General Court ruled on the request for a preliminary ruling made by the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland) by decision of 21 November 2024, received by the Court on 12 February 2025.
2 The review concerns the question whether, having regard in particular to the judgments of the Court of Justice of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43), and of 23 March 2021, Airhelp (C‑28/20, EU:C:2021:226), the judgment under review adversely affects the unity or consistency of EU law inasmuch as the General Court ruled that:
– an air traffic management decision is not inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned, since it does not form part of that carrier’s activity but falls within the activities and competence of the air traffic management services;
– such a decision, irrespective of the reason for it, is beyond the actual control of that carrier, provided that the carrier did not contribute to that decision; and
– consequently, 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), must be interpreted as meaning that such a 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.
Legal context
3 Recitals 1, 2, 14 and 15 of Regulation No 261/2004 state:
‘(1) Action by the Community 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.
(2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.
…
(14) As under the [Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38)], 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.’
4 Article 5 of that regulation, entitled ‘Cancellation’, provides, in paragraphs 1(c) and 3 thereof:
‘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.’
5 Article 7 of Regulation No 261/2004, entitled ‘Right to compensation’, provides for standardised flat-rate compensation for passengers, the amount of which is determined, inter alia, on the basis of the distance of the flight.
Background to the case under review
The dispute in the main proceedings and the questions referred for a preliminary ruling
6 A was a passenger on flight LO 6110, which was to be operated on 25 July 2023 by air carrier P.
7 The aircraft scheduled to operate that flight was due to take off from Izmir (Türkiye) airport at 18:20 UTC and land in Warsaw (Poland) at 21:10 UTC.
8 In actual fact, that aircraft 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.
9 Flight 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 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. Accordingly, that flight only took off at 16:02 UTC and landed at 18:32 UTC, that is to say, arriving 1 hour and 12 minutes late.
10 After landing in Izmir, a technical fault was found on the aircraft. It took two hours and eight minutes to repair it.
11 On 26 July 2023, A assigned her right to flat-rate compensation to D, a company specialising in debt collection.
12 D then brought an action before the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw) seeking payment by P in the amount of EUR 400, plus statutory default interest from 17 August 2023 until the date of payment.
13 The referring court noted 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. However, it was uncertain whether it is possible to classify decisions relating to delayed slot allocation as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.
14 In 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?’
The judgment under review
15 In the judgment under review, the General Court first replied, in paragraph 41 of that judgment, to the first and second questions 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.
16 In support of that answer, the General Court, in the first place, ruled out, in paragraphs 17 to 25 of that judgment, that every air traffic management decision constitutes an ‘extraordinary circumstance’. That interpretation is based on the grounds that the concept of ‘extraordinary circumstances’ must be interpreted strictly and that it requires that two cumulative conditions be satisfied, the fulfilment of which must be assessed on a case-by-case basis. According to those conditions, such circumstances include events that, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.
17 In the second place, the General Court ruled on those cumulative conditions.
18 In that regard, first, it held, in paragraphs 28 and 29 of that judgment, that an air traffic management decision does not constitute an element inherent in the normal exercise of the activities of an air carrier, since it cannot be regarded as intrinsically linked to the operation of the aircraft that made the delayed flight and, moreover, it falls within the activities and competence of the air traffic management services.
19 Second, the General Court held, in paragraphs 33 to 36 of the judgment under review, that, irrespective of the reasons justifying it, such a decision is beyond the actual control of that carrier unless the latter contributed to that decision. It specified that, in that context, the relevant circumstance is not the reason for the air traffic management decision, but that decision itself, in so far as it is that decision that externally affects the performance of the scheduled flight, unless the carrier has contributed to that decision.
20 In the third place, the General Court added, in paragraphs 37 to 40 of that judgment, that an event, such as an air traffic management decision, may constitute an ‘extraordinary circumstance’ even if it did not of itself cause a delay of at least three hours.
21 Second, the General Court replied, in paragraph 45 of the judgment under review, to the third and fourth questions 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.
Procedure before the Court of Justice
22 Following the proposal of the First Advocate General, the Reviewing Chamber of the Court of Justice considered, by decision of 12 March 2026, D (Air traffic management decision) (C‑108/26 RX, EU:C:2026:212), adopted pursuant to Article 62 of the Statute of the Court of Justice of the European Union and Article 194(5) of the Rules of Procedure of the Court, that it was necessary to review the judgment under review, given that there was a serious risk of the unity or consistency of EU law being affected.
23 The question which, according to the terms of that decision, the review is to concern is set out in paragraph 2 of the present judgment.
Review
24 As follows from the decision of 12 March 2026, D (Air traffic management decision) (C‑108/26 RX, EU:C:2026:212), and from paragraph 2 of the present judgment, it is necessary, in essence, to examine, first, whether, having regard in particular to the case-law of the Court relating to the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, the interpretations adopted by the General Court in its answer to the first and second questions in the judgment under review are compatible with the wording of that provision, its context and the objectives pursued by that regulation.
25 If that were not the case, it would be necessary then to examine whether that judgment adversely affects the unity or consistency of EU law (see, by analogy, judgments of 19 September 2013, Review Commission v Strack, C‑579/12 RX-II, EU:C:2013:570, paragraph 25, and of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 52).
The interpretation of the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004
26 As a preliminary point, it should be recalled 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 (judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 69, and of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 24).
27 Article 5(3) of that regulation, read in the light of recitals 14 and 15 thereof, nevertheless releases an operating air carrier from its obligation to pay compensation if the 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 and, where such circumstances do arise, that it adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal, in order to prevent that situation from resulting in the cancellation or long delay of the flight in question (see, to that effect, judgments of 4 April 2019, Germanwings, C‑501/17, EU:C:2019:288, paragraph 19 and the case-law cited; of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 22; and of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 25).
28 According to settled case-law, since 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 that regulation, 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 that article must be interpreted strictly (see, to that effect, judgments of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 20; of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 24; and of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 26).
29 That 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, to that effect, judgments of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 23; of 31 January 2013, McDonagh, C‑12/11, EU:C:2013:43, paragraph 29; of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 23; and of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 27).
30 In order to assess whether an event, by its nature or origin, is not inherent in the normal exercise of the activity of the air carrier concerned, it is necessary, in particular, to determine whether operating air carriers are or may be, as a matter of course, when carrying out of their activity, faced with that type of event and whether such events fall within the scope of the normal management of those activities (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 24; order of 14 November 2014, Siewert, C‑394/14, EU:C:2014:2377, paragraph 19; judgments 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, paragraphs 41 and 42; of 26 June 2019, Moens, C‑159/18, EU:C:2019:535, paragraphs 18 and 19; of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 29 and 30; and of 11 May 2023, TAP Portugal (Death of the co-pilot), C‑156/22 to C‑158/22, EU:C:2023:393, paragraph 22).
31 For its part, the examination of the condition relating to the operating air carrier’s lack of actual control over the event amounts to determining whether that event falls within the scope of circumstances over which that carrier has no control (see, to that effect, judgments of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 36, and of 13 June 2024, Finnair (Fuel gauge design defect), C‑385/23, EU:C:2024:497, paragraph 32). In that respect, events whose origin is ‘internal’ must be distinguished from those whose origin is ‘external’ to the operating air carrier. The concept of ‘external events’ thus 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 have their origin in a natural event or that of a third party (see, to that effect, judgments of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 39 to 41; of 7 July 2022, SATA International – Azores Airlines (Failure of the refuelling system), C‑308/21, EU:C:2022:533, paragraph 25; and of 16 October 2025, AirHelp Germany (Aircraft struck by lightning), C‑399/24, EU:C:2025:791, paragraphs 28 and 29).
32 In the light of those considerations, it appears, in the first place, that the General Court infringed the interpretative principles and concepts emerging from the case-law cited in paragraphs 28 to 31 of the present judgment, by holding, in paragraphs 28 and 29 of the judgment under review, that an air traffic management decision cannot be regarded as inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned on the ground that such a decision cannot, logically, be regarded as intrinsically linked to the operation of the aircraft that made the delayed flight and moreover, 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.
33 Indeed, first, by reducing the first of the conditions referred to in paragraph 29 of the present judgment to the assessment of the links between the event relied on – in this case the air traffic management decision – and the operation of the aircraft concerned, the General Court failed to take account, in the light of the case-law referred to in paragraph 30 of the present judgment, of the fact that, in the exercise of its activity, every operating air carrier is necessarily, as a matter of course and on a regular basis, faced with decisions relating to air traffic management.
34 Second, by basing its reasoning on the ‘external’ nature of an air traffic management decision and on the lack of competence of the operating air carrier concerned, the General Court conflated the two cumulative conditions characterising the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004. While the General Court intended to rule on the first of those conditions, those criteria fall, as is apparent from the case-law cited in paragraph 31 of the present judgment, within the scope of the assessment of the second of those conditions, which is based on the lack of actual control of the operating air carrier concerned over the event in question.
35 In the second place, it follows from the considerations set out in paragraph 33 of the present judgment that air traffic management decisions must be regarded as inherent, by their nature and origin, in the normal exercise of the activity of an operating air carrier. Since the first of the two cumulative conditions referred to in paragraph 29 of the present judgment is not fulfilled, it must be concluded that those decisions cannot, in themselves, be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, without it even being necessary to examine the second of those conditions.
36 That said, it should also be recalled that, according to the Court’s case-law, classification as an ‘extraordinary circumstance’, within the meaning of Article 5(3) of Regulation No 261/2004, must be made solely in the light of the circumstances giving rise to the cancellation or long delay of the flight concerned (judgment of 26 June 2019, Moens, C‑159/18, EU:C:2019:535, paragraph 17). It is the reason for such a cancellation or delay that is relevant for determining, in the context of compensation for damage suffered by passengers due to the cancellation or long delay of their flight, whether, as the case may be, that cancellation or delay is caused by ‘extraordinary circumstances’ within the meaning of that provision (see, to that effect, judgment of 13 October 2011, Sousa Rodríguez and Others, C‑83/10, EU:C:2011:652, paragraph 34).
37 Thus, it should be observed, by way of example, that, where a decision ordering the closure of part of European airspace or runways at an airport is caused, respectively, by a volcanic eruption or the presence of petrol on those runways, the question whether a cancellation or long delay of flights resulting from such a closure is due to extraordinary circumstances must be assessed against those events (see, to that effect, judgments of 31 January 2013, McDonagh, C‑12/11, EU:C:2013:43, paragraph 34, and of 26 June 2019, Moens, C‑159/18, EU:C:2019:535, paragraphs 13 and 18 to 22).
38 It follows that, in order to establish the existence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, an operating air carrier cannot merely claim that the long delay is caused by an air traffic management decision. It is for an operating air carrier to demonstrate that that decision was taken on account of an ‘extraordinary circumstance’ within the meaning of that provision. It is therefore for the national court hearing the case to assess whether the event constituting the cause of or the reason for that decision fulfils the two cumulative conditions referred to in paragraph 29 of the present judgment.
39 That interpretation, which precludes any air traffic management decision from constituting, in itself, an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004, is also necessary in the light of the principle of strict interpretation of the concept of ‘extraordinary circumstances’ and of the objective of a high level of protection for passengers. In that regard, it should be emphasised that dissociating such a decision from the reasons underlying it would risk broadening considerably the scope of the air carriers’ exemption from their obligation to pay compensation established in that regulation, since a mere reliance on the existence of an administrative decision relating to the management of air transport would be sufficient to rely on that exemption, without it being necessary to establish the extraordinary nature of the reason which led to the adoption of that decision.
40 Such an interpretation is, moreover, consistent with recital 15 of that regulation. Indeed, by limiting the concept of ‘extraordinary circumstances’ to the situation where an air traffic management decision concerning a particular aircraft on a specific day gives rise, inter alia, to a long delay, the EU legislature did not in any way intend to lay down a principle that any decision relating to that management may, irrespective of the reasons for it, constitutes such a circumstance.
41 Consequently, it must be held that the General Court misconstrued the concept of ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, by holding, in paragraphs 33 to 36 of the judgment under review, that an air traffic management decision is likely to constitute an extraordinary circumstance, irrespective of the reason for it, if it is established that it was beyond the actual control of the operating air carrier concerned, in particular where it can be ruled out that that carrier contributed to that decision.
42 It follows that the answer given by the General Court to the first and second questions raised by the referring court, in paragraph 41 of the judgment under review, following the assessments set out in paragraphs 26 to 40 thereof, misconstrues the literal, contextual and teleological interpretation of the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.
Adverse effect on the unity or consistency of EU law
43 Article 5 of Regulation No 261/2004, which lays down the obligations owed by an operating air carrier in the event of cancellation of a flight, seeks, as is apparent from recitals 1 and 2 of that regulation, to ensure a high level of protection for passengers, taking into account the requirements of consumer protection in general, inasmuch as cancellation or long delay of flights causes serious inconvenience to passengers (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 18 and the case-law cited).
44 In accordance with that objective, the provisions conferring rights on air passengers, including those conferring a right to compensation, must be interpreted broadly (judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 45), whereas the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 must, as a derogation from the principle that passengers have the right to compensation and as has been noted in paragraph 28 of the present judgment, be interpreted strictly (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 20).
45 By conflating the two cumulative conditions characterising the concept of ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, and by failing to take account of the reason for an air traffic management decision, the General Court adopted a broad interpretation of that concept, which would ultimately cover any air traffic management decision unless it was established that the operating air carrier contributed to the adoption of that decision. In so doing, the General Court infringed the principle of strict interpretation of that concept and, accordingly, the principle of a broad interpretation of the right to compensation. It also reversed, in consequence, the balance sought by that regulation between, on the one hand, the rights and obligations of operating air carriers and, on the other, those of passengers by limiting the obligations of operating air carriers and reducing the protection of passengers.
46 In those circumstances, such an interpretation of the concept of ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004 – which, moreover, affects an essential provision of that regulation reflecting its fundamental objective of protecting air passengers – is such as to affect the unity and consistency of EU law.
47 In the light of those circumstances, considered as a whole, it must be held that the judgment under review adversely affects the unity and consistency of EU law in so far as the General Court ruled in response to the first and second questions raised by the referring court, that:
– an air traffic management decision is not inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned, since it does not form part of that carrier’s activity but falls within the activities and competence of the air traffic management services;
– such a decision, irrespective of the reason for it, is beyond the actual control of that carrier, provided that the carrier did not contribute to that decision; and
– consequently, Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that such a 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.
The consequences to be drawn from the review and the request for a preliminary ruling
48 The second paragraph of Article 62b of the Statute of the Court of Justice of the European Union provides that, if the Court finds that the decision of the General Court affects the unity or consistency of Union law, the answer given by the Court of Justice to the questions subject to review shall be substituted for that given by the General Court.
49 In the present case, it is therefore for the Court to answer, in the first place, the first and second questions raised by the referring court.
50 By contrast, it also follows from the second paragraph of Article 62b of the Statute of the Court of Justice of the European Union that it is not for the Court of Justice to substitute its own answer for those given by the General Court in relation to the questions it examined and which have not been the subject of review. For reasons of legal certainty and the sound administration of justice, the Court nevertheless considers it appropriate, in the second place, to reproduce, in the present judgment, the grounds of the General Court’s examination of the third and fourth questions.
The first and second questions
The second question
51 By its second question, which it is appropriate to examine in the first place, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an air traffic management decision constitutes, in itself and irrespective of the reasons for it, an ‘extraordinary circumstance’ within the meaning of that provision, or whether it is necessary to take into account the reason for such a decision in order to assess whether it constituted an ‘extraordinary circumstance’.
52 In order to answer that question, account must be taken of the case-law cited in paragraphs 26 to 31 of the present judgment.
53 In that regard, as has been noted in paragraphs 35 to 39 of the present judgment, it follows from that case-law that any air traffic management decision cannot, by its very nature, as such, and without regard to the reason for it, constitute an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004.
54 It also follows from that case-law that, as has been observed in paragraphs 36 and 38 of the present judgment, it is necessary, on the contrary, to take account of the reason for such a decision, in other words, the event which gave rise to its adoption, and to assess whether that event is not, by its nature or origin, inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control, bearing in mind that those two conditions are cumulative.
55 In the present case, it is apparent from the explanations provided by the referring court that the air traffic management decision at issue in the main proceedings was adopted as a result of airspace restrictions in Hungary and Romania implemented due to adverse weather conditions.
56 In that regard, it is apparent from recital 14 of Regulation No 261/2004 that extraordinary circumstances may, in particular, occur in cases of meteorological conditions incompatible with the operation of the flight concerned.
57 That said, the circumstances referred to in recital 14 are not necessarily and automatically grounds for exemption from the obligation to pay compensation laid down in Article 5(1)(c) of Regulation No 261/2004. Consequently, it is necessary to assess, on a case-by-case basis, whether those circumstances fulfil the two cumulative conditions referred to in paragraph 29 of the present judgment (see, to that effect, judgments of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraphs 22 and 23, and 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).
58 It is therefore for the referring court to determine whether the adverse weather conditions which led to the air traffic management decision at issue in the main proceedings fulfil those conditions.
59 In that regard, first, while it is true that operating air carriers are, on a regular basis, faced with variable, or even difficult, weather conditions, the fact remains that, where weather conditions are such that they prevent the flight concerned from being operated safely and in accordance with the schedule originally planned, they are not inherent in the normal exercise of the activity of the air carrier concerned.
60 Second, since weather conditions of such severity as to prevent the flight concerned from being operated safely and in accordance with the schedule originally planned constitute natural hazards, it must be held that they are beyond the actual control of the air carrier concerned.
61 Therefore, it appears, subject to the verifications which it is for the referring court to carry out, that the event giving rise to the adoption of the air traffic management decision at issue in the main proceedings fulfils the cumulative conditions for being regarded as constituting an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004.
62 In the light of the foregoing, the answer to the second question is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an air traffic management decision cannot, in itself and irrespective of the reasons for it, constitute an ‘extraordinary circumstance’ within the meaning of that provision, but that, on the contrary, account should be taken of the reason for such a decision by examining, on a case-by-case basis, whether the event which caused the adoption of that decision is not, by its nature or origin, inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control.
The first question
63 By its first question, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an event may constitute an ‘extraordinary circumstance’ within the meaning of that provision, even if it did not, in itself, lead to a delay of at least three hours.
64 That court raises that question since, in the case in the main proceedings, the long delay was due, in part, to the weather conditions which delayed the departure slot allocated to the previous flight operated by the same aircraft and, in part, to a technical fault found on the aircraft the repair of which took two hours and eight minutes.
65 In that regard, it must be borne in mind that, under Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, 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 by 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).
66 It follows that the answer to the first question is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an event may constitute an ‘extraordinary circumstance’ within the meaning of that provision, even if it did not of itself cause a delay of at least three hours, with the result that, where the long delay in arrival arises not only from that event, but also from another circumstance which does not constitute an ‘extraordinary circumstance’, within the meaning of that provision, the delay caused by that 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.
The third and fourth questions
67 Since, as has been note in paragraph 50 of the present judgment, it is not for the Court of Justice to substitute its own answer for those given by the General Court in relation to the questions it examined and which have not been the subject of review, it is necessary to reproduce, in the present judgment, the grounds of the General Court’s examination of the third and fourth questions set out in paragraphs 42 to 45 of the judgment under review. Those paragraphs read as follows:
‘42 By 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 event] must concern a flight that was actually delayed, or if it may also concern a previous flight in the rotation.
43 In 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).
44 Moreover, as regards air traffic management decisions, it should be noted, as the [European] 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.
45 In 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 [an operating] air carrier may rely, as an “extraordinary circumstance” within the meaning of that provision, on [an event] 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 which it subsequently operated, [which must be assessed] taking into account, inter alia, the conditions of operation of the aircraft in question by that carrier.’
Costs
68 Since 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.
On those grounds, the Court (Second Chamber) hereby:
1. Declares that the judgment of the General Court of the European Union of 21 January 2026 in D (Air traffic management decision) (T‑134/25, EU:T:2026:35) adversely affects the unity and consistency of EU law in that the General Court held, in response to the first and second questions referred by the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland), that:
– an air traffic management decision is not inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned, since it does not form part of that carrier’s activity but falls within the activities and competence of the air traffic management services;
– such a decision, irrespective of the reason for it, is beyond the actual control of that carrier, provided that the carrier did not contribute to that decision; and
– consequently, 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 such a 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.
2. Sets aside that judgment in so far as it concerns the answers to the first and second questions referred by the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland).
3. Declares that the answers given by the General Court of the European Union to those questions referred for a preliminary ruling by the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, miasto stołeczne Warszawa, Warsaw, Poland) are to be replaced by the following answers:
– Article 5(3) of Regulation No 261/2004
must be interpreted as meaning that an air traffic management decision cannot, in itself and irrespective of the reasons for it, constitute an ‘extraordinary circumstance’ within the meaning of that provision, but that, on the contrary, account should be taken of the reason for such a decision by examining, on a case-by-case basis, whether the event which caused the adoption of that decision is not, by its nature or origin, inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control.
– Article 5(3) of Regulation No 261/2004
must be interpreted as meaning that an event may constitute an ‘extraordinary circumstance’ within the meaning of that provision, even if it did not of itself cause a delay of at least three hours, with the result that, where the long delay in arrival arises not only from that event, but also from another circumstance which does not constitute an ‘extraordinary circumstance’, within the meaning of that provision, the delay caused by that 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.
4. Declares that the answer to the third and fourth questions referred for a preliminary ruling, given by the General Court in the judgment referred to in paragraph 1 of this operative part, is to be reproduced as follows:
Article 5(3) of Regulation No 261/2004
must be interpreted as meaning that an operating air carrier may rely, as an ‘extraordinary circumstance’ within the meaning of that provision, on an event 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 which it subsequently operated, which must be assessed taking into account, inter alia, the conditions of operation of the aircraft in question by that carrier.
[Signatures]