EU court advocate challenges airlines’ favorite excuse for denying compensation

Quick summary

The Court of Justice of the European Union’s Advocate General Rimvydas Norkus issued an opinion on 10 September 2026 proposing to overturn a January 2026 General Court ruling that had allowed airlines to cite any air traffic control decision as an automatic extraordinary circumstance under EU Regulation 261/2004 — potentially blocking passenger compensation. The case centres on a LOT Polish Airlines flight from Izmir to Warsaw on 25 July 2023 that arrived 3 hours and 7 minutes late, with €400 in compensation at stake. If the court follows the opinion, airlines will need to prove the underlying cause of an ATC restriction was itself extraordinary, not merely that an external authority issued the order.

Advocate general opinions are nonbinding but followed in the majority of CJEU cases. The Warsaw court will still decide whether this specific passenger receives compensation once the CJEU rules.

A nonbinding but influential legal opinion published 10 September 2026 could significantly raise the bar for airlines seeking to avoid passenger compensation by blaming air traffic control. Advocate General Norkus, writing for the Court of Justice of the European Union, proposed replacing a January 2026 General Court judgment that had given carriers a near-automatic exemption whenever an ATC authority issued a delay order — regardless of what actually caused the restriction.

The underlying dispute is narrow: one passenger, one delayed flight, €400. But the legal question is broad enough to affect every EU-departing and EU-arriving flight on the planet, including long-haul routes between Asia-Pacific and Europe.

Under the current General Court reading, an airline could point to an ATC slot decision on a previous sector and treat it as a sufficient extraordinary circumstance for the next flight — without courts examining whether the root cause was routine congestion, ordinary weather, or something genuinely exceptional. Norkus’s opinion would end that shortcut. Courts would instead be required to look behind the ATC decision and assess whether the disruption’s underlying cause falls outside normal airline operations.

The opinion applies to all flights departing EU airports, covering EU carriers and non-EU carriers alike on outbound legs, and to inbound EU flights operated by EU airlines — a scope that directly touches Asia-Pacific travellers connecting through European hubs.

What the opinion actually changes — and what it doesn’t

The General Court’s January 2026 judgment in case T‑134/25 held that an ATC decision qualifies as an extraordinary circumstance under Article 5(3) of Regulation 261/2004 if the decision itself was outside the carrier’s effective control and the airline did not contribute to it — full stop. The underlying cause of the restriction was irrelevant to that analysis.

Norkus rejected that framing directly. “A clear distinction must be drawn between the cause of the disruption and the measure through which that disruption affects the actual operation of the flight,” he wrote. An ATC order is the mechanism, not the event — and courts must examine what generated it.

The two-step test that would apply under his proposal: first, was the underlying event outside normal airline operations and beyond the carrier’s actual control? Second, did the airline demonstrate that all reasonable measures could not have prevented or mitigated the delay? Both questions must be answered independently. An external authority’s involvement cannot collapse them into one.

The General Court had also accepted that an ATC decision affecting a previous flight using the same aircraft could excuse a delay on the next flight, provided a direct causal link existed. Norkus preserved that possibility — but tightened it considerably. Sharing an aircraft is not enough. Courts must examine timetables, turnaround windows, and whether the airline had realistic opportunities to reassign equipment or crew and contain the cascade.

The case also marks the first time the Court of Justice has opened a special supervisory review at the suggestion of its first advocate general — a procedural milestone under a 2024 reform that shifted many passenger rights preliminary references from the CJEU to the General Court. The reform legislation created this new tier of oversight, and Norkus’s opinion signals the CJEU’s willingness to intervene when it believes a lower-tier ruling threatens uniform application of EU law.

The European Commission’s summary of relevant CJEU judgments confirms the two-part extraordinary circumstances test has been established case law for years — Norkus is not inventing new doctrine, but insisting it be applied consistently rather than short-circuited by the presence of an ATC order.

Why “ATC said so” has never been a complete answer — and courts are catching up

The practical gap Norkus is closing has been visible for years in how EU member states handle these claims. Some jurisdictions, notably Austria, already probe the underlying cause of an ATC restriction rather than accepting the slot decision at face value. A restriction triggered by recurrent capacity bottlenecks at a busy hub is treated differently from one caused by a lightning strike requiring safety inspections — because the former is a foreseeable feature of operating at that airport, not an exceptional event.

The NATS technical outage in the UK illustrates where the current framework draws the line. The UK Civil Aviation Authority has told passengers that delays and cancellations linked directly to that outage are unlikely to qualify for fixed cash compensation — the failure was classified as an extraordinary circumstance. Airlines still owe care rights: meals, accommodation, and rerouting. But statutory compensation is off the table for that specific event.

That outcome might look different under Norkus’s stricter lens applied to a future case. A one-off technical failure at an air navigation service provider sits closer to the genuinely exceptional end of the spectrum than routine slot rationing on a congested summer afternoon over Central Europe. The distinction matters enormously for passengers — and for airlines building their claims-rejection logic.

How to protect your compensation claim now, before the ruling lands

The CJEU has not yet issued its final judgment — national courts, including the Warsaw court handling this case, are waiting for that ruling before applying the new standard. But the direction of travel is clear enough to act on today.

• Demand specifics, not a category: If an airline rejects your EU261 claim citing “air traffic control,” write back and ask it to identify the exact underlying event it considers extraordinary — the specific restriction, its cause, and why that cause falls outside normal operations. A vague ATC reference is no longer a sufficient answer under the framework Norkus proposes.
• Document the delay chain: Keep boarding passes, delay notifications, and any airline communications. If your flight was delayed because a previous rotation was held, ask the airline to explain the rotation schedule, the turnaround window, and what steps it took to reassign aircraft or limit knock-on effects.
• Know your care rights regardless: Even when extraordinary circumstances apply and cash compensation is off the table — as with the NATS outage — airlines must still provide meals, communication, and hotel accommodation for significant delays. These rights are unconditional. Claim them in writing at the airport.
• Escalate strategically: If a claim is rejected and the underlying cause looks like routine congestion or ordinary weather, consider holding the escalation until the CJEU judgment is published. National enforcement bodies and courts will apply the new standard once it exists — a claim filed now may be decided under the old rules.
• Check which law applies to your ticket: EU261 covers flights departing any EU airport (any carrier) and flights arriving in the EU on EU-based carriers. UK261 mirrors this for UK-departing flights. Australian and New Zealand passengers on non-EU carriers flying intra-Asia or to non-EU destinations fall outside this framework entirely.

Watch: The CJEU’s final judgment in this case — no date has been published, but the use of the accelerated review procedure suggests a ruling within months rather than years. When it lands, national enforcement bodies across the EU will update their guidance, and airlines will need to revise their extraordinary circumstances documentation standards.

Questions? Answers.