The General Court applied the established framework on extraordinary circumstances, as recently restated by the Court of Justice in its judgment of 13 June 2024, D. (Engine design defect), Case C-411/23 (EU:C:2024:498). On that authority, Article 5(3) is a derogation from the principle of compensation and must be construed strictly; a circumstance is “extraordinary” only where two cumulative conditions are met — the event is not, by its nature or origin, inherent in the normal exercise of the carrier’s activity, and it is beyond the carrier’s actual control — with each case assessed on its own facts.

Applying that test, the Court reached three principal conclusions. First, not every air traffic management decision is automatically an extraordinary circumstance; recital 15 of the Regulation does not alter that, because the carrier may itself have contributed to a given decision. Secondly, such a decision is not inherent in the carrier’s normal activity — it is the act of a third party, namely the air traffic management services, and falls within their competence rather than the carrier’s. Thirdly, and decisively, the decision is beyond the carrier’s actual control where the carrier did not contribute to it: the relevant factor is the air traffic management decision itself, which externally affects the flight, rather than the underlying reason for it (here, the weather). The Court emphasised the corollary: where the carrier did contribute — for instance by requesting a new slot on account of its own operational unavailability — the decision is not an event of external origin and cannot found the defence.

The Court also confirmed that an air traffic management decision may qualify even if it does not, of itself, cause a delay of at least three hours. Where a delay has several concurrent causes, the delay attributable to the extraordinary circumstance is deducted from the total in order to determine whether the compensation threshold is reached — a principle drawn from Pešková and Peška (C-315/15).

On the third and fourth questions, the Court held that a carrier may rely on an air traffic management decision that affected an earlier flight operated by the same aircraft, provided two conditions are met: the decision was beyond the carrier’s actual control, and there is a direct causal link between that circumstance and the delay to the subsequent flight — a matter for the national court to verify, having regard in particular to the conditions of operation of the aircraft. Recital 15, the Court noted, ties extraordinary circumstances to a particular aircraft rather than a particular flight, consistent with the rotational-delay case law (Transportes Aéreos Portugueses, C-74/19).