Judgment of the General Court (Chamber giving preliminary rulings) of 4 March 2026. – NI and HZ v European Air Charter AG.

1

This request for a preliminary ruling concerns the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2

The request has been made in proceedings between, on the one hand, NI and HZ, two air passengers, and, on the other, European Air Charter AG, an air carrier, concerning the latter’s refusal to compensate those passengers for a long delay to their flight.

3

Recitals 1, 14 and 15 of Regulation No 261/2004 state:

…

4

Article 5 of Regulation No 261/2004 provides, in paragraphs 1 and 3 thereof:

‘1.   In case of cancellation of a flight, the passengers concerned shall:

…

… they are informed of the cancellation …

…

…

3.   An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’

5

Article 7 of Regulation No 261/2004 provides, in paragraph 1 thereof:

‘Where reference is made to this Article, passengers shall receive compensation amounting to:

…

…’

6

The Luftsicherheitsgesetz (Law on Aviation Safety) of 11 January 2005 (BGBl. 2005 I, p. 78), as amended by the Gesetz zur Verbesserung der Rahmenbedingungen luftsicherheitsrechtlicher Zuverlässigkeitsüberprüfungen (Law on improving the framework conditions for reliability checks under the Law on Aviation Safety) of 22 April 2020 (BGBl. 2020 I, p. 840) (‘the LuftSiG’), provides, in Paragraph 2 thereof, entitled ‘Tasks’:

‘The aviation safety authority shall have the task of preventing breaches of air transport safety within the meaning of Paragraph 1. To that end, it shall, in particular:

1. check passengers and their luggage in accordance with Paragraph 5,

…’

7

Paragraph 5 of the LuftSiG, entitled ‘Special powers of the authorities responsible for aviation safety’, provides, in subparagraph 1 thereof, that ‘the aviation safety authority may search or check in any other appropriate manner persons who have entered or wish to enter the security restricted area of the aerodrome [and that] it may search or inspect in any other appropriate manner objects which have been or are to be brought into those areas’.

8

NI and HZ each had a reservation for a flight operated by European Air Charter on 23 July 2022, with scheduled departure from Düsseldorf (Germany) at 15:00 and scheduled arrival in Varna (Bulgaria) on the same day at 17:50 (‘the flight at issue in the main proceedings’).

9

The flight at issue in the main proceedings was to be made by a European Air Charter aircraft used in a rotation. According to the initial schedule, the first flight in that rotation was to take off from Cologne-Bonn Airport (Germany) on 23 July 2022 at 07:40 and arrive in Varna at 10:30. The second flight in the rotation was supposed to depart from Varna at 11:20 and arrive in Düsseldorf at 14:10. The third flight in the rotation was the flight at issue in the main proceedings.

10

However, following an unusually long waiting time at the security check at Cologne-Bonn Airport, which was caused by a heavy workload for the staff carrying out the security checks on 23 July 2022, all of the passengers of the first flight in the rotation were delayed in presenting themselves for boarding. European Air Charter took the decision to wait for the passengers of that flight who were at the security check and the first flight in the rotation thus took off with a delay of more than five hours.

11

Furthermore, in order to avoid an excessively long wait for the passengers of the flight rotation in question, European Air Charter decided to reschedule the flights subsequent to the first flight in the rotation and rearranged those flights on another aircraft. The second flight in the rotation was therefore made by a replacement aircraft which, because of the need first to obtain landing clearance at the destination airport, was able to take off from Varna only at 14:10 and arrived in Düsseldorf at 17:33. The flight at issue in the main proceedings was operated by that replacement aircraft and took off at 18:39. NI and HZ arrived at their destination at 21:12, that is, with a delay of more than three hours in relation to the original planned arrival time.

12

Hearing an action brought by NI and HZ seeking compensation from European Air Charter on account of the delay in their flight, amounting to EUR 400 each, the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany) dismissed their application by judgment of 19 February 2024.

13

NI and HZ lodged an appeal against that judgment before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), which is the referring court.

14

According to the referring court, the sudden and considerable shortage of security staff, in principle, could constitute an extraordinary circumstance within the meaning of Article 5(3) of Regulation No 261/2004, since air passenger security checks are a task which, in accordance with Paragraph 2(1) and Paragraph 5 of the Law on Aviation Safety, is not assigned to air carriers. Accordingly, staff shortages at security checks and subsequent delays are circumstances which lie outside the sphere of risk of the air carrier and cannot be controlled by that carrier.

15

However, the referring court considers that it is decisive for the outcome of the dispute to be resolved by it whether there is a causal link between the sudden and considerable shortage of staff tasked with the security checks at Cologne-Bonn Airport, as an extraordinary circumstance, and the delay in the arrival of the flight at issue in the main proceedings.

16

In accordance with its own settled case-law and the case-law of the Court of Justice on the subject, the referring court considers that the delay in the arrival of the flight at issue in the main proceedings in Varna could be regarded as being directly caused not by delays at the security check at Cologne-Bonn Airport, but by the autonomous decision taken by European Air Charter to wait for the passengers who were at that check and, consequently, to charter a replacement aircraft to operate the flight at issue in the main proceedings.

17

The referring court observes however that it could be a different matter if the direct cause of the cancellation of a flight or the long delay in the arrival of that flight depended on weighing up the interests of various groups of passengers affected by the same flight rotation. Thus, where the rescheduling of the flight plan takes into account the interests of various passenger groups in the same rotation equally, ‘simple’ causality could be sufficient to establish the causal link between the extraordinary circumstance and the cancellation of the flight or the long delay in the arrival of that flight.

18

In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

19

By its first question, the referring court asks, in essence, whether the autonomous decision of an air carrier to wait for the passengers of a flight who have not yet cleared security, due to a heavy workload for the staff carrying out security checks, is capable of breaking the causal link between the extraordinary circumstance of those shortcomings in the security checks and the delay in the arrival of a subsequent flight, scheduled for the same day on the same aircraft.

20

As a preliminary point, it should be observed that the referring court starts from the premiss that the shortcomings in the security checks were widespread at the airport in question and that they therefore constituted an extraordinary circumstance, so that that court has doubts only as to the causal link between the extraordinary circumstance which affected the first flight of the rotation and the delay in the arrival of the flight at issue in the main proceedings.

21

It should be recalled at the outset that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and that they may thus rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 24 and the case-law cited).

22

Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, releases an air carrier from that obligation to pay compensation if the carrier can prove that the cancellation or long delay in arrival is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken (see judgment of 13 June 2024, D. (Engine design defect), C‑411/23, EU:C:2024:498, paragraph 25 and the case-law cited).

23

The Court of Justice has previously held that an operating air carrier must be able to rely on an ‘extraordinary circumstance’ which affected a previous flight which it operated using the same aircraft in the context of aircraft turnaround three flights back in the rotation sequence of that aircraft, in order to be released from its obligation to pay compensation to passengers in the event of long delay or cancellation of a flight (see judgment of 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraph 55 and the case-law cited).

24

However, and taking into account not only the objective referred to in recital 1 of Regulation No 261/2004 to ensure a high level of protection for passengers, but also the wording of Article 5(3) of that regulation, reliance on such an extraordinary circumstance presupposes that there is a direct causal link between the occurrence of that circumstance which affected a previous flight and the delay or cancellation of a subsequent flight (see judgment of 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraph 56 and the case-law cited).

25

Nevertheless, it should be noted that neither Article 5(3) of Regulation No 261/2004 nor any other provision of that regulation set out the requirements relating to the direct nature of the causal link between the extraordinary circumstance and the delay or cancellation of a flight. In those circumstances, to ensure uniform interpretation of EU law, it is necessary to refer, by analogy, to the causal link criteria applicable to non-contractual liability of the European Union, which constitutes a comparable system, in that, for liability to arise, a causal link must exist between the event relied on and the damage alleged.

26

To that end, it should be pointed out that the mere fact that conduct constituted a necessary condition (a sine qua non) for the damage to occur, in the sense that the damage would not have occurred without that conduct, is not sufficient to establish a sufficiently direct causal link under EU case-law (see judgment of 23 May 2019, Remag Metallhandel and Jaschinsky v Commission, T‑631/16, not published, EU:T:2019:352, paragraph 52 and the case-law cited).

27

In that regard, it follows from the case-law that the condition relating to the causal link requires that that link must be sufficiently direct, so that the conduct complained of must be the determining cause of the damage (see, to that effect, judgments of 13 December 2018, European Union v Gascogne Sack Deutschland and Gascogne, C‑138/17 P and C‑146/17 P, EU:C:2018:1013, paragraph 22, and of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 32).

28

In addition, 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 (see, to that effect and by analogy, judgment of 18 December 2025, WS and Others v Frontex (Joint return operation), C‑679/23 P, EU:C:2025:976, paragraphs 151 and 152 and the case-law cited).

29

It follows that the mere fact that an extraordinary circumstance affected a flight preceding the flight in question is not sufficient to release the air carrier from its obligation to pay compensation. It must also be possible to demonstrate that that extraordinary circumstance is the determining cause of the delay of the flight in question.

30

In the present case, it should be noted that, in the case in the main proceedings, as a result of shortcomings in the security checks, the air carrier took the decision to wait for the passengers of the first flight who had not yet cleared security, even though that flight was ready for take-off on time.

31

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.

32

It should be noted that such an assessment does not require the objective of Regulation No 261/2004, which aims to ensure a high level of protection for certain passengers, to be taken into account. As the Advocate General observed in point 70 of his Opinion, that objective does not imply that the air carrier must weigh up the interests of the various groups of passengers affected by the same rotation.

33

Moreover, the Court of Justice has already held that it cannot be accepted that an air carrier may, by relying on the interest of other passengers in being transported within a reasonable time, increase considerably the situations in which it would have reasonable grounds for denying a passenger boarding. That would necessarily have the consequence of depriving such a passenger of all protection, which would be contrary to the objective of Regulation No 261/2004 (judgment of 4 October 2012, Finnair, C‑22/11, EU:C:2012:604, paragraph 34).

34

An air carrier may not, by relying on the interest of the passengers directly affected by an extraordinary circumstance in being transported within a reasonable time, increase the situations in which it could be released from its obligation to pay compensation. As the Advocate General observed in point 73 of his Opinion, permitting an air carrier to rely on weighing up the interests of various groups of passengers affected by a rotation in order to circumvent its obligation to compensate one of those groups would be tantamount to adding an exemption clause to the obligation to compensate laid down in Article 5(3) of Regulation No 261/2004.

35

In the light of all the foregoing considerations, the answer to the first question is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the autonomous decision of the operating air carrier to wait for the passengers of a flight who have not yet cleared security, due to shortcomings in the security checks, is capable of breaking the direct causal link between the extraordinary circumstance of those shortcomings and the delay of at least three hours in the arrival of a subsequent flight, scheduled for the same day on the same aircraft, if that decision is the determining cause of the delay.

36

In view of the answer to the first question, there is no need to answer the second question.

37

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds,

THE GENERAL COURT (Chamber giving preliminary rulings)

hereby rules:

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91

must be interpreted as meaning that the autonomous decision of the operating air carrier to wait for the passengers of a flight who have not yet cleared security, due to shortcomings in the security checks, is capable of breaking the direct causal link between the extraordinary circumstance of those shortcomings and the delay of at least three hours in the arrival of a subsequent flight, scheduled for the same day on the same aircraft, if that decision is the determining cause of the delay.