(CN) - When flights run late, airlines love to blame "extraordinary circumstances," but on Wednesday, a new opinion from Europe's top court adviser said they can't use that excuse when the delay is their own doing.
In a passenger dispute with European Air Charter, Advocate General Martin y Perez de Nanclares told the General Court of the European Union that even if airport security failures are beyond an airline's control, the company is still accountable for the choices it makes once things return to normal.
The distinction - between an unavoidable external shock and a delay born of choice - sits at the center of his reasoning. The advocate general found that European Air Charter's decision to keep the plane on the ground for late passengers was a judgment call, not a safety or regulatory requirement, bringing the delay back under the airline's control under EU law.
In this case, the airline's choice to wait for passengers still held up at security "is capable of breaking the direct causal link between the extraordinary circumstance and the delayed arrival of the flight," the adviser explained.
A delay that snowballed across the schedule
The dispute stems from a flight delay that rippled through a busy day of operations. After an earlier aircraft's passengers were caught in hourslong security queues, the airline delayed the next departure to wait for them, pushing the later flight's arrival more than three hours past schedule.
When passengers claimed compensation under EU regulation, the carrier argued it was shielded by "extraordinary circumstances." The Dsseldorf Regional Court asked the EU bench for guidance, sending the dispute up to Luxembourg, where judges were prompted to examine where the delay really began and who should bear responsibility.
Wednesday's opinion sharpened the rules on what counts as an "extraordinary" event by focusing squarely on cause and effect. He said airlines can only escape paying compensation if the disruption was the real reason for the delay, not just one factor among several that unfolded later through their own choices.
Sara Drake, a law scholar at Cardiff University, said the opinion stands out less for its facts than for its timing, landing as the EU rethinks how far passenger protections should go. She said the advocate general's reasoning "will be welcome news to air passengers" if the General Court follows it, especially as lawmakers debate whether to tighten or relax airlines' compensation duties under Regulation 261.
The European Parliament has drawn a firm line around the current three-hour rule, she added, while the council wants to raise it to four to give carriers more leeway when external disruptions hit.
The EU rulebook behind the dispute
Regulation 261, adopted in 2004, was born out of the travel chaos of the early 2000s, when mass cancellations, long delays and airline collapses like Sabena and Swissair left thousands of passengers stranded with no clear rights. In response, the EU stepped in to set common standards and guarantee compensation, turning this rule into one of Europe's most debated and litigated consumer protection laws.
It sets the EU's core passenger rights for cancellations, long delays and denied boarding. It entitles travelers to fixed compensation when flights arrive three hours late or more - 250 for short-haul, 400 for medium-haul and 600 for long-haul trips - along with meals, hotel stays if needed and the choice of rerouting or a refund.
Airlines can avoid paying only if they prove the disruption was caused by truly extraordinary events beyond their control, like volcanic ash clouds, sudden strikes or severe weather, and that they took every reasonable step to limit the impact. Wednesday's opinion put those limits to the test.
A warning shot for the airline industry
For airlines, the opinion is a wake-up call on how far the "extraordinary circumstances" excuse can stretch, drawing a clearer line between what's truly beyond their control and what's just bad decision-making. It has also reignited a long-running debate over where that line should be drawn - and who should bear the cost when travel chaos spirals.
Pablo Mendes de Leon, professor emeritus of air and space law at Leiden University, said the opinion aligns with long-standing EU case law: Extraordinary events must be both external to an airline's normal operations and beyond its control.
"It would seem that the air carrier may, at least in part, rely on extraordinary circumstances defence because airport security is outside its actual control," he said, though he cautioned that "this case is a combination of such special circumstances that it may not shed a light on future cases."
Not everyone agrees on how much protection airlines should get under that defence. Christopher Bisping, professor of comparative private law at Bucerius Law School, said he supports the adviser's logic that "the carrier's autonomous decision to wait for passengers delayed at the security check bars recourse to the extraordinary circumstances defence," but he also questioned whether airport security delays should count as extraordinary in the first place.
"Quite rightly," he added, "the advocate general states that weighing the interests of different groups of passengers is inappropriate, as each passenger's case has to be judged on its own merits. If such weighing would be allowed, then carriers were incentivised to prioritise that group of passengers that would cost the most to compensate or the cancellation or delay."
Others see the opinion as part of a wider shift in EU case law. Anna Konert, dean of law at Lazarski University and director of its Aviation Academy, said the reasoning could reshape how courts handle so-called "knock-on delays," where one disruption ripples across an airline's schedule.
"An extraordinary event may initially disrupt the schedule, but the subsequent scope and duration of the delay must still be assessed critically," she said.
"Waiting for delayed passengers is often commercially or reputationally sensible, but it is not compulsory from a safety, security, or regulatory standpoint," Konert added, noting that such decisions reflect airlines' own priorities rather than forces beyond their control.
She said the EU courts have been "edging toward a more segmented analysis of causation," demanding carriers justify not only that an extraordinary event occurred but also that their reaction to it was proportionate.
The airline did not respond to a request for comment, and the passengers who brought the case in Germany could not be reached because their identities remain confidential.
Though not legally binding, an advocate general's opinion often sets the tone for the court's final ruling. The case now heads back to the General Court in Luxembourg, which will decide whether to follow his lead.
If it does, the judgment could echo across Europe's aviation industry, driving home a clear message: once an airline regains control of its schedule, it also owns the delay.
Courthouse News reporter Eunseo Hong is based in the Netherlands.
Source: Courthouse News Service
