Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 29
EU261 flight delay claims: when airline choices break the causal
chain (Case T-656/24, NI, HZ v European Air Charter AG)
Introduction
The first quarter of 2026 has seen further judgments
from both the Court of Justice and the General Court
of the European Union (“CJEU”) concerning Regulation
(EC) No 261/2004 (“EU261”).[1] These decisions reflect
the continued evolution of the EU’s passenger rights
regime, through decisions of the CJEU, particularly
around flight delay compensation. In recent judgments,
the pendulum continues to swing in favour of
passengers - while swinging firmly against attempts by
carriers to broaden the ‘extraordinary circumstances’
defence under Article 5(3) of EU261. Under this
provision, a carrier is exempt from paying compensation
only where it proves that a flight cancellation or long
delay that is the subject of the claim was caused by
‘extraordinary circumstances’ that could not have been
avoided, even if all reasonable measures had been
taken.
Case T-656/24 - NI, HZ v European Air Charter AG,
General Court, 4 March 2026
NI and HZ were passengers on a Düsseldorf–Varna flight
scheduled for 23 July 2022. The flight was to be the third
rotation of the aircraft. Earlier that morning, at Cologne–
Bonn Airport, a generalised failure of the airport
security checkpoint caused all passengers on the first
rotation flight to be significantly delayed in presenting
themselves for boarding.
The carrier chose to wait for those delayed passengers.
That first flight took off, with a delay of some five hours.
Having regard to the delay of the first flight rotation, the
carrier re-arranged the day’s operations by chartering
another aircraft to operate the second and third
rotations. Despite these efforts, the claimant passengers
(travelling on the third flight) arrived in Varna more than
three hours late, triggering claims against the carrier for
EU261 flight delay compensation.
Their claims for EUR 400 each under EU261 were
rejected by the court in Düsseldorf at first instance. On
appeal, the Regional Court accepted that the sudden
Aviation Anthology 2026 - Volume I
and considerable shortage of security staff, in principle,
could constitute an extraordinary circumstance, but
questioned whether the requisite direct causal link
existed given that the carrier had voluntarily opted to
wait for delayed passengers. The German court referred
two questions to the General Court for a preliminary
ruling, namely (i) whether the delay concerned could
still be attributed to the ‘extraordinary circumstances’
when the carrier voluntarily chose to wait for passengers
on the first flight, and (ii) whether the number of such
passengers was relevant to determining when the
carrier’s own actions became the determining cause of
the flight delay.
Decision
In its ruling of 4 March 2026, and as concerns the first
question, the General Court found as follows:
O Carriers may rely on an extraordinary circumstance
affecting an earlier flight only if there is a direct
causal link with the delay of the subsequent flight
at issue in the claim (following Austrian Airlines, C
826/19).
O The mere fact that conduct constituted a necessary
condition (a sine qua non) for the damage to occur, in
the sense that the damage (i.e., the delay) would not
have occurred without that conduct, is not sufficient
to establish a sufficiently direct causal link.
O The condition relating to the causal link requires
that that link must be sufficiently direct, so that the
conduct complained of (here, the security delays)
must be the determining cause of the damage (the
delay that is the basis of the claim).
O The causal link may be broken, inter alia, by an act
which arises between the conduct complained of
and the damage alleged, where that act constitutes
the determining cause of that damage. Such an
act may consist, inter alia, of a decision, provided,
however, that the person taking the decision was not
obliged to do so.
DAC Beachcroft
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