Extraordinary circumstances: when the airline does not have to pay

What the law says

Article 5(3) of Regulation (EC) No 261/2004 says that an operating air carrier is not obliged to pay compensation "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". The regulation never defines the phrase. Two recitals in its preamble give guidance:

• Recital 14 says 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".
• Recital 15 says extraordinary circumstances should be deemed to exist where 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, even though the airline took all reasonable measures.

The wording covers cancellations, but in Sturgeon (C-402/07 and C-432/07, 19 November 2009) the Court of Justice of the European Union (CJEU) held that passengers who reach their final destination 3 hours or more late can claim the same compensation – and that the same defence applies to them. UK261, the version of the regulation kept in UK law after Brexit, uses the same Article 5(3) wording, and its Article 6 now writes the 3-hour delay rule and the defence into the text.

The list in recital 14 is not a list of automatic excuses. The European Commission's 2024 interpretative guidelines put it plainly: events like those in recital 14 "are not necessarily grounds for an exemption" and "require a case-by-case assessment". A storm, a strike or a technical problem can fall on either side of the line depending on the facts.

The two-part test from Wallentin-Hermann

The leading case is Wallentin-Hermann (C-549/07, 22 December 2008). The Court of Justice held that an event counts as an extraordinary circumstance only if, by its nature or origin:

1. it is not inherent in the normal exercise of the airline's activity, and
2. it is beyond the airline's actual control.

Both conditions must be met; the Court has repeated in every later case that they are cumulative. Because the defence is an exception to the main rule – which is that passengers are compensated – it must be interpreted strictly.

Since Airhelp v SAS (C-28/20, 2021) the Court also frames the question as one of internal versus external events. External events come from a natural phenomenon or the act of a third party – another airline, or a public or private operator interfering with flight or airport activity – and generally qualify. Internal events, such as the airline's own maintenance, staffing and industrial relations, do not.

Two points from Wallentin-Hermann still decide many technical-fault cases: the frequency of technical problems at an airline proves nothing either way, and complying with the minimum maintenance rules does not, on its own, show that the airline took all reasonable measures.

Who has to prove it? The airline

Article 5(3) puts the burden squarely on the airline: it applies only "if it can prove" the defence. According to the Commission's 2024 guidelines, the airline must prove at the same time:

• that an extraordinary circumstance existed, and the link between that circumstance and your delay or cancellation; and
• that the delay or cancellation could not have been avoided even though it took all reasonable measures.

The guidelines add that airlines may use logbook extracts, incident reports or external documents and statements as proof, that an airline referring to such proof in its reply to you "should include this proof", and that it should be provided free of charge to passengers and enforcement bodies in line with national rules on access to documents. A standard letter saying "extraordinary circumstances" is an assertion, not evidence.

The UK Civil Aviation Authority (CAA) takes a similar line: if an airline relies on extraordinary circumstances it will need to set out clearly why, and it should explain the cause of the disruption.

The "reasonable measures" test

Proving an extraordinary event is only half the defence. The airline must also show that it could not have avoided the delay or cancellation even with all reasonable measures. In Wallentin-Hermann (paragraph 41) the Court said the airline must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it clearly could not have avoided the disruption – unless doing so would have meant intolerable sacrifices in the light of its capacities at the time. Later cases fill in what that means:

One more rule matters in practice. If a delay has several causes, only the part caused by the extraordinary event is deducted (Pešková, ruling 4). Say a flight arrives 4 hours 30 minutes late, and an air traffic control restriction accounts for 1 hour of that. The remaining 3 hours 30 minutes are the airline's responsibility, and compensation is still due.

Is it extraordinary? Cause by cause

The table summarises where the case law stands for the causes airlines cite most. "Usually" matters: each case turns on its facts, and the airline must still prove the reasonable-measures part. Cases decided after 31 December 2020 are marked *: they do not bind UK courts (see below).

"Usually yes" means the event can qualify as extraordinary; the airline must still prove it caused your delay and that reasonable measures could not have avoided it. * Decided after 31 December 2020. Full judgments are listed under Sources below; summaries are in our case law library.

Guides by cause

Each guide explains the rules for one cause, what the airline must show, and how to check what it tells you.

What you are still owed in extraordinary circumstances

Extraordinary circumstances only cancel the fixed compensation. Everything else in the regulation still applies:

• Care (Article 9): meals and refreshments in reasonable relation to the waiting time, two phone calls or emails, and hotel accommodation plus transfers if you are stuck overnight. It starts at 2, 3 or 4 hours of departure delay depending on the distance, and for cancellations. In McDonagh (C-12/11, 31 January 2013) – a Ryanair passenger stranded in Faro for a week by the 2010 volcanic ash cloud – the Court of Justice confirmed there is no category of "particularly extraordinary" events that ends the duty of care, however long the disruption lasts.
• Refund or re-routing (Article 8) if your flight is cancelled, or if a delay reaches 5 hours and you decide not to travel.
• Your out-of-pocket costs if the airline failed to provide care. McDonagh limits this to amounts that were necessary, appropriate and reasonable, so keep receipts and avoid luxury options.

For more detail see what to do if your flight is delayed and your rights to care during a delay.

What to ask the airline

If the airline rejects your claim, reply in writing and ask for specific information. A short, polite list works best:

• The specific event – not "operational reasons" or "circumstances beyond our control", but what happened (for example, which component failed, which ATC restriction applied, which strike).
• When and where it happened, and which flight it affected – yours, or an earlier flight of the same aircraft.
• How it caused your delay, minute by minute if the delay had several parts (Pešková lets you deduct only the extraordinary part).
• The documents it relies on: technical log extracts, air traffic control slot messages, weather reports, incident reports, notices from the authority or manufacturer.
• What it did to limit the delay: was a spare aircraft or standby crew available, did it look at re-routing on other airlines?

Our complaint letter template and letter generator include wording for this request.

How to challenge a rejection

1. Get the reason in writing. Without a specific cause you cannot test the defence, and neither can an adjudicator.
2. Check the flight history. Public flight-tracking sites show your aircraft's earlier flights that day and whether other flights left the same airport around your departure time. If departures carried on normally, a "weather" or "ATC" explanation deserves a closer look.
3. Compare the reason with the table above and the guide for that cause. If the cause is internal – a technical fault, crew sickness, the airline's own strike – say so and cite the case.
4. Escalate. If the airline does not reply within 2 months (8 weeks in the UK) or keeps refusing, take the claim to the national enforcement body or ADR body of the EU, EEA or Swiss country where the incident happened – usually the departure country – or, for UK flights, to the airline's ADR scheme or the CAA; finally go to a national court or, for cross-border EU claims, the European Small Claims Procedure. Our step-by-step claim guide, the overview of enforcement bodies and the country guides (for example Germany, Spain, the Netherlands or the United Kingdom) explain each route.

If you would rather not argue the case yourself, a claims company can do it for a fee. We are an affiliate of AirHelp; see our affiliate disclosure.

UK261 and newer EU rulings

UK261 keeps the EU wording, and Court of Justice judgments given up to 31 December 2020 – Wallentin-Hermann, Sturgeon, van der Lans, Pešková, Krüsemann, Germanwings, Moens and the TAP knock-on judgment (C-74/19) among them – remain part of how UK courts read it. Judgments given after that date do not bind UK courts. In Lipton v BA City Flyer [2021] EWCA Civ 454 the Court of Appeal explained that UK courts are not bound by later CJEU decisions but can "have regard to" them where relevant.

In practice that means rulings such as Airhelp v SAS (2021), the TAP crew-illness ruling (2023) and the 2024 hidden-defect rulings are persuasive in the UK rather than binding. On crew sickness, the Court of Appeal reached the same answer itself in Lipton. The UK Civil Aviation Authority's own guidance lists technical problems as not extraordinary and cites Jet2.com v Huzar [2014] EWCA Civ 791 and van der Lans.

For flights in the EU, a reformed version of the regulation applies from 23 October 2027 and includes new rules on extraordinary circumstances. Flights before then are judged under the current rules and case law, and UK261 is not affected. See the EU261 reform explained.

Frequently asked questions

The airline just wrote "extraordinary circumstances". Is that enough?

No. Article 5(3) only releases the airline if it can prove that extraordinary circumstances caused the delay or cancellation and that it could not have avoided them with all reasonable measures. A one-line rejection is not proof. Ask in writing for the specific event, when and where it happened, how it affected your flight, and the documents that show it. The European Commission's 2024 guidelines say that if an airline relies on evidence such as logbook extracts or incident reports, it should include that evidence in its reply.

Do extraordinary circumstances apply to delays as well as cancellations?

Yes. Article 5(3) is worded for cancellations, but in Sturgeon (C-402/07, 19 November 2009) the Court of Justice held that passengers arriving 3 hours or more late can claim compensation, and that the same extraordinary-circumstances defence applies to them. In the UK, Article 6(4) of UK261 now spells this out.

The delay was partly caused by weather and partly by the airline. Can I still claim?

Possibly. In Pešková (C-315/15) the Court of Justice said that where a delay has several causes, only the part caused by the extraordinary event is deducted. If what is left is still 3 hours or more at arrival, compensation is due.

The airline says the cause was "operational reasons". What does that mean?

It is not a legal category. Operational reasons usually means a crew, aircraft or scheduling problem – matters within the airline's control. Ask for the specific cause. If the airline cannot name an extraordinary event, it cannot rely on Article 5(3).

Am I owed anything if the circumstances really were extraordinary?

Yes. You lose the fixed compensation (€250–€600 under EU261, £220–£520 under UK261), but the airline must still provide care – meals, refreshments, two phone calls or emails and, if needed, a hotel and transfers – and, if the flight is cancelled, a choice of refund or re-routing. In McDonagh (C-12/11) the Court of Justice confirmed that care is due even during long disruption such as the 2010 volcanic ash cloud.

Can the airline rely on something that happened to an earlier flight?

Sometimes. The Court of Justice allows an airline to rely on an extraordinary circumstance that affected an earlier flight operated with the same aircraft, but only where there is a direct causal link to your delay (C-74/19). The airline must still show it did everything reasonable to limit the knock-on effect. See our guide to knock-on delays.

How long do I have to challenge a rejection?

Time limits depend on where you bring the claim, because national limitation periods apply: for example 3 years in Germany (from the end of the year), 5 years in France, 6 years in Ireland, 6 years in England, Wales and Northern Ireland and 5 years in Scotland. See time limits by country.

This guide explains the law in general terms and is not legal advice. We are not lawyers and we are not AirHelp; we are an independent information site that earns a commission when readers use our partner's service.

Sources

1. Regulation (EC) No 261/2004 – recitals 14 and 15 (as adopted) – legislation.gov.uk
2. Regulation (EC) No 261/2004 – Article 5 (as adopted) – legislation.gov.uk
3. UK261 – Article 5, latest version – legislation.gov.uk
4. Interpretative Guidelines on Regulation (EC) No 261/2004 (C/2024/5687), section 5 – European Commission, Official Journal
5. C-549/07 Wallentin-Hermann, judgment of 22 December 2008 – Court of Justice of the EU
6. C-402/07 and C-432/07 Sturgeon, judgment of 19 November 2009 – Court of Justice of the EU
7. C-294/10 Eglītis and Ratnieks, judgment of 12 May 2011 – Court of Justice of the EU
8. C-12/11 McDonagh, judgment of 31 January 2013 – Court of Justice of the EU
9. C-257/14 van der Lans, judgment of 17 September 2015 – Court of Justice of the EU
10. C-394/14 Siewert, order of 14 November 2014 – Court of Justice of the EU
11. C-315/15 Pešková and Peška, judgment of 4 May 2017 – Court of Justice of the EU
12. C-195/17 Krüsemann, judgment of 17 April 2018 – Court of Justice of the EU
13. C-501/17 Germanwings, judgment of 4 April 2019 – Court of Justice of the EU
14. C-159/18 Moens, judgment of 26 June 2019 – Court of Justice of the EU
15. C-832/18 Finnair, judgment of 12 March 2020 – Court of Justice of the EU
16. C-74/19 Transportes Aéreos Portugueses, judgment of 11 June 2020 – Court of Justice of the EU
17. C-28/20 Airhelp v SAS, judgment of 23 March 2021 – Court of Justice of the EU
18. C-826/19 Austrian Airlines, judgment of 22 April 2021 – Court of Justice of the EU
19. C-613/20 Eurowings, judgment of 6 October 2021 – Court of Justice of the EU
20. C-308/21 SATA International – Azores Airlines, judgment of 7 July 2022 – Court of Justice of the EU
21. C-156/22 to C-158/22 TAP Portugal, judgment of 11 May 2023 – Court of Justice of the EU
22. C-405/23 Touristic Aviation Services, judgment of 16 May 2024 – Court of Justice of the EU
23. C-411/23 D. (hidden engine design defect), judgment of 13 June 2024 – Court of Justice of the EU
24. C-385/23 Finnair, judgment of 13 June 2024 – Court of Justice of the EU
25. Jet2.com Ltd v Huzar [2014] EWCA Civ 791 – Court of Appeal (England and Wales)
26. Lipton v BA City Flyer Ltd [2021] EWCA Civ 454 – Court of Appeal (England and Wales)
27. Am I entitled to compensation? – UK Civil Aviation Authority
28. Guidance to industry on the NATS flight planning failure, 30 August 2023 – UK Civil Aviation Authority

We check every rule against the sources above. Spotted an error? Tell us – see our editorial policy.