Dear Ladies and Gentleman, please fasten your seat belts +++ turbulences expected in the wake of a new ECJ judgment (case T-656/24) +++ stay informed with oracle law global.

Ahead of the ECJ’s judgement T-656/24, we present you the most relevant information to keep you updated in all aviation related matters. The central question to be answered is most relevant in the airlines daily operations and may have grave consequences on future operations:

Is the delayed arrival of a flight by at least three hours directly the result of an extraordinary circumstance within the meaning of Article 5(3) of the EU261/2004 even if, on a preceding flight on the same day, the operating air carrier decided, because of significant delays at the security check, to wait for passengers who had not yet been cleared and the resulting delay cannot be made up by the time of the flight at issue?

If the answer to the first question depends on whether and how many passengers arrived for boarding of the delayed preceding flight, from what proportion of passengers booked on the flight who actually turned up is the (further) delay of the preceding flight no longer directly the result of extraordinary circumstances but on an autonomous decision by the air carrier which lies solely within its sphere of control?

Felix, qui potuit rerum cognoscere causas (Fortunate, is able to know the causes of things), is what Mr Advocate General has written in its introduction and reiterated what is well known: the court wants proof of casual links of the alleged extraordinary circumstances to the final delay (here: delayed passengers due to security check congestions) and proof by the airlines of having undertaken all reasonable measures following inter alia C-74/19 (which could be presented substantially). Thus leaving the court to decide the pending – and highly relevant legal question – is waiting for passengers, who were stuck at the security check and thus delaying the flight considered an extraordinary circumstance? Especially, if the flight could have taken off without the delayed passengers and the air carrier has decided autonomously to wait?

The Advocate General guides us through common knowledge, that undergoing security procedure at airports is inherent normal exercise.

By contrast, a generalised failure of the security check which affects all air passengers at the same airport and causes exceptional delays of several hours shall be capable of constituting an extraordinary circumstance. Especially, as security checks are a task which the law on aviation security does not assign to air carriers.

It further shall be taken into consideration, that the air carriers decision took into account the interests of all the passengers for which it was responsible. What else could the air carrier 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?, the Advocate General asks.

However, the court may decide, that the causal link between the autonomous decision by the air carrier to wait for the passengers relating to the delay of the preceding flight (due to the extraordinary circumstance generalised failure at the security check) and the final delay of the claiming passengers at their destination is breached.

In short: if the air carrier decided autonomously relating to its operations, the link to the original delay, be it extraordinary or not, is breached.

This would lead to the air carrier not being able to exempt itself from the obligations under Art. 5 para 3 EU261/2004.

This judgement surely will have effects on the operations handling of air carriers in future similar cases, in which it air carriers can sufficiently showcase, that an extraordinary circumstance was given.

We are eagerly awaiting the verdict, which will be announced tomorrow.