EU261 Extraordinary Circumstances 2025: What's Changed in Case Law

EU261 extraordinary circumstances 2025 case law builds on a definition the CJEU established in its first major ruling on the subject: an extraordinary circumstance is an event (a) that is not inherent to the normal exercise of the activity of the air carrier concerned, and (b) is beyond the airline's actual control. The statutory text of EU261 Article 5(3) lists examples: political instability, meteorological conditions incompatible with safe operation, security risks, unforeseen flight safety shortcomings, and strikes affecting an operating carrier. The key word in the case law is inherent. Courts have increasingly asked whether the event that caused the delay is a normal risk that airlines manage as part of running an airline, or a genuinely exceptional external event. Technical malfunctions, crew shortages, and late aircraft have consistently failed that test. See EU261 flight delay compensation complete guide for the baseline framework, and the CJEU's aviation case register for full judgment texts.

The two-part test is cumulative. An event must be both outside normal operations AND outside the airline's control. Passing only one part is not enough for the defence to succeed.

Several CJEU and national court decisions between 2023 and 2025 materially narrowed the extraordinary circumstances defence. The most significant include: (1) Decisions confirming that a bird strike discovered post-landing counts as extraordinary for that specific aircraft, but the subsequent schedule disruption on other flights operated by the same airline does not inherit extraordinary status. Each flight is evaluated independently. (2) Decisions on crew rest requirements: a delay caused by a crew reaching their maximum duty hours is operational, not extraordinary, even when the crew was delayed on an inbound flight by an event that was itself extraordinary. (3) Decisions on airport ground equipment failures: equipment failures operated by a third party at the airport can be extraordinary if the airline had no control over maintenance, but only when the specific equipment failure was genuinely unforeseeable. (4) Decisions in Germany and the Netherlands treating manufacturer-identified defects (Airworthiness Directives) as extraordinary when the defect was newly discovered, but not when the AD was published months before the flight.

Technical fault claims by airlines have been systematically rejected by the CJEU since Wallentin-Hermann v. Alitalia (C-549/07, 2008) established the baseline, and 2023 to 2025 case law has tightened it further. The current position is: a technical fault that arises as part of normal airline operations is inherent to the activity, regardless of how unexpectedly it appeared. Airlines operate aircraft that break down. That is a normal risk of running an airline. The only technical fault that can qualify as extraordinary is one caused by a hidden manufacturing defect identified by the manufacturer after the aircraft type entered service, or by sabotage or external damage by a third party. Routine maintenance failures, sensor malfunctions, hydraulic issues, software errors, and avionics faults are all operational. National courts in France, Germany, the UK, and the Netherlands have all applied this standard consistently in 2023 to 2025.

If the airline cites a technical fault, ask for the specific EASA Airworthiness Directive number or the third-party damage report. Without one of these, the technical fault defence almost certainly fails under current case law.

Strike cases under EU261 produced one of the most significant recent developments in case law. The CJEU in Eurowings (C-18/20, 2021) and subsequent national decisions established that strikes by the airline's own staff that follow legally prescribed notice procedures are not extraordinary circumstances. The reasoning: an airline that employs staff and is subject to labour law operates in an environment where strikes are a foreseeable and manageable risk. A strike following legal notice is predictable enough that the airline could have arranged alternative aircraft or crews. By contrast, a wildcat strike (spontaneous, without legal notice, impossible to foresee within the planning horizon) can qualify as extraordinary. The distinction matters practically: most European airline strikes follow notice periods required by national labour law, which makes them scheduled strikes under this framework and therefore not extraordinary.

Check whether the airline's staff strike involved a legal notice period. Strikes with notice are not extraordinary under current CJEU case law. Wildcat strikes may be.

Air Traffic Control (ATC) restrictions and ground stops issued by the relevant authority are generally accepted as extraordinary circumstances. The airline does not control the national or European airspace authority and cannot override an ATC ground stop. EUROCONTROL flow management restrictions are also generally accepted. However, two nuances have emerged in 2023 to 2025 case law. First: ATC staffing shortages at specific airports that have been chronic and publicly reported are increasingly challenged as foreseeable rather than extraordinary. If a particular ATC centre has publicly reported staffing problems for 18 months, an airline flying that route daily is expected to account for ATC delay risk. Second: airport slot constraints and capacity reductions that the airport announced in advance are airport operational issues, not ATC extraordinary circumstances. Airlines cannot substitute an airport's advance capacity notice for an ATC emergency restriction.

The category of hidden damage or hidden defect has generated specific case law. The CJEU in van der Lans v. Alitalia (C-257/14, 2015) established that a breakdown caused by a premature failure of certain components of the aircraft does not constitute an extraordinary circumstance if those components break down because of their normal operating characteristics. Subsequent decisions have applied this to damage discovered during the pre-departure walk-around inspection. If ground crew or flight crew identify a defect during the standard pre-departure inspection and this grounds the aircraft, courts have held this to be the kind of discovery that diligent maintenance should prevent. Only damage that is genuinely hidden in the sense that it could not be detected by any reasonable inspection protocol (internal corrosion behind inaccessible panels, manufacturer latent defects) can qualify as extraordinary.

Pre-departure inspection findings are not automatically extraordinary. Courts ask whether a proper maintenance regime would have identified the issue earlier. Most pre-departure groundings fail this test.

The procedural consequence of 2023 to 2025 case law is a shift in burden. Courts have consistently held that airlines must provide specific, documentary evidence of the extraordinary circumstance they are relying on. A generic refusal letter stating extraordinary circumstances without identifying the specific event, its nature, and why it was beyond the airline's control does not meet the evidential threshold. NEBs and ADR bodies applying this standard are returning more cases to airlines with requests for documentation. Airlines that cannot produce the documentation lose. For passengers, this means every extraordinary circumstances refusal should be challenged by demanding the specific evidence. TravelStacks does this automatically for every EU261 refusal. See how to claim Montreal Convention compensation for long delay for the parallel long-delay compensation framework, and start a claim at /claim.