“Extraordinary circumstances” — what actually counts
Extraordinary circumstances is the defence airlines reach for most and win with least. It has to be something outside the airline's actual control and not inherent in running an airline — which rules out most technical faults, and every strike by the carrier's own staff.
Work out what your flight is owed →The test, in the words that matter
Article 5(3) lets an airline escape compensation if it proves the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Two conditions, and the airline has to satisfy both.
Wallentin-Hermann v Alitalia (C-549/07) set the standard: the event must not be inherent in the normal exercise of the activity of the air carrier and must be beyond its actual control. Running aircraft means maintaining them, so the ordinary consequences of maintenance are not extraordinary.
What usually does and does not qualify
| Cause | Extraordinary? |
|---|---|
| Routine technical fault | No — Wallentin-Hermann |
| Part failing earlier than expected | No — van der Lans v KLM (C-257/14) |
| Hidden manufacturing defect, disclosed by the maker | Can be |
| Strike by the airline's own crew | No — Krüsemann (C-195/17) |
| Air traffic control failure or strike | Usually yes |
| Severe weather at the relevant airport | Can be, if proven |
| Bird strike | Yes — but see Pešková below |
| Political instability, security risk | Yes |
| Crew out of hours because of an earlier delay | Depends on the original cause |
The second half of the test people forget
Even a genuine extraordinary circumstance does not end the matter. The airline must also show it took all reasonable measures to avoid the consequences. In Pešková and Peška (C-315/15) — a bird strike, unquestionably extraordinary — the Court still required the carrier to show it had done what it reasonably could to limit the delay that followed.
This is where knock-on cancellations fall apart. A fault on Monday does not automatically excuse a cancellation on Wednesday because aircraft ended up in the wrong cities. Ask the airline which measures it took.
Making the airline prove it
The burden is on the carrier, not on you. A one-line assertion is not proof. Ask for the cause in writing, the aircraft registration, and — where weather is claimed — the METAR or TAF for that airport at that hour. Then check whether other aircraft were landing. Airports rarely close for one aeroplane.
Questions
Who has to prove extraordinary circumstances?
The airline. Article 5(3) puts the burden on the carrier to prove both that the cause was extraordinary and that it took all reasonable measures. You do not have to disprove it.
Is a technical fault an extraordinary circumstance?
Usually not. Wallentin-Hermann (C-549/07) held that faults inherent in normal operations are not extraordinary, and van der Lans v KLM (C-257/14) applied that to a part that failed sooner than its expected life.
Does bad weather always excuse the airline?
No. Weather can be extraordinary, but the airline must show the specific weather affected your flight and that it took all reasonable measures. Ask for the METAR or TAF.
Related
- EU261 — the statute itself
- When the airline blames a technical fault
- Airline strike compensation