Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 20
Preferential fares and passenger rights: Article
3(3) EU261
The airline in Cymdek (C-20/24) further argued that
EU261 should not apply because the passengers
travelled on preferential terms financed by a third party.
Article 3(3) excludes passengers travelling free of charge
or at reduced fares unavailable to the public.
The court reaffirmed that exceptions to passenger rights
must be interpreted strictly. Article 3(3) applies only
where the carrier grants a free or reduced fare. Further,
the travaux préparatoires of the regulation confirm the
legislature’s intention that passengers on package tours
should not be excluded from EU261’s protections.
Clarifying when lightning strikes relieve airlines of
EU261 liability
Lightning strikes aircraft far more frequently than
public perception suggests; each in-service aircraft is
struck approximately once per year. While damage is
uncommon, mandatory post-strike inspections may
disrupt operations.
Article 5(3) releases carriers from compensation
obligations where delays result from extraordinary
circumstances that could not have been avoided even
if all reasonable measures had been taken. The burden
rests on the carrier. Recital 14 to the regulation provides
in express terms that “meteorological conditions
incompatible with the operation of the flight concerned”
may constitute exceptional circumstances.”
In its October 2025 judgment (AirHelp Germany GmbH v
Austrian Airlines AG Case C-399/24), the CJEU held that
a lightning strike affecting a preceding flight resulting
in mandatory safety inspections and causing delay to a
claimant passenger’s flight, constitutes an extraordinary
circumstance. Such events meet established criteria:
they arise from meteorological conditions incompatible
with flight safety, fall outside the carrier’s control, and are
not inherent in normal operations. The CJEU recognised
the paramount importance of mandatory safety
inspections, noting that passenger safety - enshrined
in the regulation’s preamble - takes precedence over
punctuality considerations.
To be relieved of obligation to pay compensation the
carrier must, in addition demonstrate that it took all
reasonable measures to avoid delay. The standard is
set high: consistent with earlier judgments, the court
emphasised that airlines must take all feasible steps
within their technical and administrative capabilities.
However, carriers are not required to make “intolerable
sacrifices” in the light of “the capacities of its
undertaking at the relevant time”. Earlier decisions have
guided that this “sacrifice test” does not set a universal
standard, but is a test, relative to the airline concerned.
Calculating delay following rescheduling
issues a revised booking confirmation shortly before
departure. In Corendon, the carrier pushed back
scheduled departure and arrival times by one hour, the
day before the flight. A further delay occurred, resulting
in an arrival less than three hours after the revised time,
but more than three hours after the original time. Given
that entitlement to flight delay compensation incepted
at 3 hours, the point was fundamental to the passenger’s
claim.
In judgment of the Court of 30 October 2025, the CJEU
held that the original scheduled arrival time governs the
assessment of delay for the purposes of Articles 5(1)(c)
and 7(1). This interpretation serves the regulation’s goal
of maintaining a high level of passenger protection.
Conclusion
At twenty-one years old, EU261 remains a cornerstone
of European consumer protection in aviation, but it is
also a framework showing clear signs of strain. The CJEU
has spent two decades supplying the interpretative
scaffolding that keeps the Regulation coherent, yet
persistent tensions between robust passenger rights
and the operational realities faced by airlines have now
surfaced at the political level. Those tensions are playing
out visibly in the divergent reform agendas of the
Council and Parliament.
Importantly, none of the EU institutions speak in terms of
repealing EU261 or replacing it with a “Regulation 261
II”. The language is consistently one of modernisation
and updating, not wholesale reconstruction. This is
unsurprising: replacing the regulation would risk
destabilising an extensive body of jurisprudence
developed by the CJEU, and there is a clear political
appetite for continuity rather than a legislative reset.
In that sense, EU261 - now entering adulthood - is
heading for a makeover rather than reinvention.
Whether this makeover ultimately amounts to a light
refresh or major reconstructive surgery will depend
on the outcome of the ongoing negotiations between
the Parliament and the Council. For now, the shape of
the regulation’s next chapter remains very much in the
balance.
[1] 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, entered into force on 17 February 2005.
[2] The preliminary reference procedure (also called preliminary ruling
procedure) is the mechanism in Article 267 TFEU that allows - and in
some cases requires - national courts of EU Member States to ask the
Court of Justice of the European Union (CJEU) to interpret EU law or to
rule on the validity of an EU act.
[3] The Air Passenger Rights and Air Travel Organiser’s Licensing
(Amendment) (EU Exit) Regulations 2019.
In Corendon Airlines Turistik Hava Tasimacilik AS v
Myflyright GmbH (C-558/24) the issue before the court
concerned the calculation of delay where the airline
20
DAC Beachcroft
Aviation Anthology 2026 - Volume I
