For years, airlines have often used a single argument when a passenger requests compensation for a delayed flight: "It's not our fault, air traffic control decided so." In practice, this explanation has often been sufficient for the carrier to avoid paying compensation under EU Regulation No. 261/2004. However, the latest opinion by Advocate General of the Court of Justice of the EU, Rimvydas Norkus, delivered on 10 September 2026 in Case C‑108/26 RX, may significantly change this – and to the benefit of travelers.
Starting point: the right to compensation and "extraordinary circumstances"
Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 grants passengers the right to flat-rate compensation in the event of flight cancellation or long delay on arrival. The amount of compensation depends on the distance of the flight (Article 7 of the Regulation). However, the carrier may be exempt from this obligation under Article 5(3) of the Regulation if it proves that the delay was caused by "extraordinary circumstances" that could not have been avoided even if all reasonable measures had been taken.
According to the established case law of the CJEU, an event must meet two cumulative requirements: first, it must not – by its nature or origin – be inherent in the normal exercise of the carrier's business; and second, it must be beyond the carrier's effective control. The problem is that this concept is sometimes misused.
The case that sparked the dispute: the Izmir–Warsaw flight
On July 25, 2023, a passenger on flight LO 6110 from Izmir to Warsaw arrived at her destination with a delay of over three hours (planned takeoff at 18:20 UTC, actual time 21:40 UTC; landing over three hours late). The carrier explained this by saying that the same aircraft had previously operated flight LO 6111 on the Katowice–Izmir route, the takeoff of which was delayed by air traffic control due to airspace restrictions over Hungary and Romania due to poor weather conditions. Furthermore, a technical fault was detected after the aircraft landed in Izmir, which took over two hours to repair.
The passenger transferred her claim to a debt collection agency, which filed a claim against the carrier for €400 in compensation. The District Court for the Capital City of Warsaw, hearing the case, questioned whether any decision by air traffic management authorities – regardless of the cause or duration – could automatically be considered an "extraordinary circumstance." It referred four questions to the General Court of the European Union for a preliminary ruling.
January judgment of the EU Court: favorable for carriers
On January 21, 2026, the General Court of the European Union issued a judgment in a case in which it ruled that an air traffic management decision could constitute an "extraordinary circumstance" regardless of the reason justifying it—provided it was beyond the effective control of the carrier and the carrier did not contribute to it, and regardless of the duration of the delay caused. Importantly, according to the Court, such a circumstance could concern not only the flight in question but also a preceding flight, operated by the same aircraft as part of the same rotation—a direct causal link between the decision and the subsequent delay was sufficient.
This ruling was primarily beneficial to airlines. In practice, it meant that the mere mention of a control tower decision—without a deeper analysis of the actual reasons behind it—could be sufficient to absolve the carrier of liability.
Opinion of the Advocate General
In September 2026, Advocate General Rimvydas Norkus took a different position from that previously presented by the General Court of the EU. In his view, the contested judgment incorrectly identified the administrative decision of air traffic control with the sole cause of the delay, disregarding the actual reasons behind it. Instead of examining the actual situation (e.g., weather conditions), the General Court focused on the mere fact that the decision was issued by an external body. The Advocate General also pointed out that the General Court blurred the distinction between two cumulative conditions from the CJEU's case law and gave insufficient importance to the reason underlying the decision. He found that this approach undermines the unity and consistency of the application of EU law and proposed two important theses to the Court of Justice.
First, the mere decision of the air traffic control cannot automatically be considered an "extraordinary circumstance." The national court must examine, on a case-by-case basis, what actually underpinned it – whether it was extreme, unpredictable weather conditions or a safety risk, or rather normal operational constraints, airspace congestion, or routine procedures that are part of the normal risks of conducting aviation activities.
Secondly, the carrier will still be able to rely on an air traffic control decision concerning an earlier flight in the same rotation of the same aircraft, but only if it was based on a genuine extraordinary circumstance and there was a direct causal link between it and the delay of the subsequent flight.
The opinion of the Advocate General is not binding on the Court, but in practice the judges of the CJEU very often follow such a recommendation, which gives it significant weight already at the current stage of the proceedings.
What does this really mean for passengers?
If the Court of Justice of the EU agrees with the Advocate General's position, airlines will lose the convenient argument of having issued an "air traffic control decision." The key finding will be:
- what was the actual reason for the controllers’ decision – was it really an unpredictable phenomenon that was outside the normal operations of the carrier,
- whether there was a direct causal link between that cause and the specific delay for which the passenger is seeking compensation.
As a result:
- if the air traffic control decision resulted from sudden, extreme weather phenomena or a real threat to safety – the carrier will still be exempt from liability,
- However, if it resulted from routine airspace congestion, standard operating procedures or delays previously generated by the airline itself, the passenger will be entitled to compensation.
An airline will no longer be able to simply cite an "ATC decision." It will have to demonstrate in detail the origins of that decision and that it genuinely had no influence on it. The burden of proof, in accordance with established case law regarding Regulation 261/2004, still rests with the carrier.
What does this mean for people who have already been denied?
If your compensation claim for a delayed or canceled flight was rejected based on an "air traffic control decision"—without providing any actual reason—it's worth reconsidering the matter. The CJEU ruling in Case C‑108/26 RX, if it follows the Advocate General's opinion, could pave the way for a successful challenge to such a rejection, including in cases involving the rotation of the same aircraft on earlier segments of the route.
This article is for informational purposes only and does not constitute legal advice.
The law is current as of September 15, 2026.
Author / Editor of the series:
