Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 30
Applying this reasoning to the facts, the court
concluded, “it follows that that decision taken by the
air carrier to wait for the passengers of the first flight
arose between the occurrence of the extraordinary
circumstance and the delay of the flight at issue in the
main proceedings. That decision is capable of breaking
the direct causal link between those two events if it
constitutes the determining cause for the delay of the
flight at issue in the main proceedings and provided
that the air carrier was not obliged to take that decision,
in particular under a legal obligation, which it is for the
referring court to ascertain.” In view of the answer to the
first question, the court concluded that there was no
need to answer the second question.
Ironically then, had the carrier refrained from intervening
(i.e., had simply allowed the flight rotations to run their
delayed course and had not substituted the aircraft), the
EU261 ‘extraordinary circumstances’ defence would, in
all likelihood, have remained available.
Felix qui potuit rerum cognoscere causas
The General Court’s reasoning followed the opinion
of Advocate General, Martín y Pérez de Nanclares,
delivered on 26 November 2025. That opinion is
noteworthy, not least because it opens, unusually, with a
line from Virgil’s Giorgics, Book II, ‘Felix qui potuit rerum
cognoscere causas’ : Happy is he who has been able to
know the causes of things. This is a most fitting preface
for an opinion centred on causation.
The aim of avoiding an empty flight does not constitute
an exemption from the obligation to pay compensation
laid down in Article 5(3) of Regulation No 261/2004.”
What this decision means for carriers
The decision of the General Court reinforces a strict
interpretation of Article 5(3) of EU261:
O The practical message is clear: a carrier’s operational
discretion can break the causal chain. Once the
carrier chooses a course of action that becomes the
effective cause of a later delay, the protective shield
of the Article 5(3) ‘extraordinary circumstances’
defence may fall away. Airlines must carefully assess
their response to flight disruptions, recognising
that well intentioned decisions—such as waiting for
passengers—may expose them to claim liability on
subsequent flight rotations.
O The judgment of the General Court was delivered on
4 March 2026. It is final, (i) if it is not appealed within
two months or (ii) if an appeal is not granted or (ii) if
(on appeal) the ECJ affirms it. Appeals are limited to
points of law and not the re-evaluation of the facts.
[1] The UK, following Brexit, retains the core principles of EU261 within
the domestic regime (UK261). Although post Brexit CJEU decisions no
longer bind UK courts, they continue to hold persuasive authority in
domestic adjudication.
Before the Advocate General, both the carrier and
the Commission, in written and oral submissions,
highlighted the unhappy predicament in which the
carrier found itself:
“What, indeed, should European Air Charter have done?
Abandon the passengers of the first flight or some of
them, and fly empty or almost empty, to ensure that the
flight at issue in the main proceedings was operated with
a delay of less than three hours?”
Whilst acknowledging this operational dilemma, the
Advocate General declined to allow this reasoning to
influence the causation analysis:
“However reasonable that question may be, I do not
believe that it should be taken into consideration in
the analysis of the causal link, simply because that
issue seems to me to be unrelated to Regulation No
261/2004.”
He went on:
“Permitting an air carrier to rely on a balancing of the
interests of different groups of passengers… would
be tantamount to adding an exemption clause to the
obligation to compensate laid down in Article 5(3)… [i]
t is clear that such flights are not an optimal solution, in
particular from an environmental perspective, just as it is
clear that Regulation No 261/2004 cannot be interpreted
as requiring air carriers to operate empty flights in order
to ensure that passengers arrive at their destination with
less than three hours’ delay. However, it is not possible
to infer what is not stated in the wording of the provision.
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DAC Beachcroft
Aviation Anthology 2026 - Volume I
