Extraordinary Circumstances: When Airlines Don't Pay
An airline does not have to pay EU261 or UK261 compensation when it can prove the disruption was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. It is the most common reason for a refused claim, and the most commonly misused, because the test is narrower than "something went wrong".
The wording
Article 5(3) of Regulation 261/2004 reads:
"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."
Three things follow from it. The airline carries the burden of proof. The event has to be extraordinary — outside the normal running of an airline. And even then, the airline must show it could not have avoided the delay with reasonable measures, such as a spare aircraft or crew it could have called.
Technical faults
The leading case is Sturgeon (Joined Cases C-402/07 and C-432/07, 19 November 2009), the same judgment that gave delayed passengers the right to compensation at 3 hours late. The court said a technical problem "is not covered by the concept of 'extraordinary circumstances' unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control." Maintenance and faults found in routine checks are part of running an airline. A refusal that says only "technical issue" does not meet the test on its face.
What usually counts and what usually does not
| Usually extraordinary | Usually not |
|---|---|
| Weather that closes an airport or makes flying unsafe | A fault found in routine maintenance |
| Air traffic control restrictions | Crew shortage or sickness among the airline's staff |
| Security alerts, airport closures | A late incoming aircraft from the airline's own earlier delay |
| Political unrest at the destination | Overbooking |
Each case turns on its facts, and a regulator or court has the final word. What matters for a claim is the reason the airline gives and whether it explains why reasonable measures could not have kept you on time.
What you are still owed
Extraordinary circumstances cancel the compensation, not everything. Under EU261 and UK261, care — meals and refreshments, a hotel and transport to it if you are stuck overnight — is owed whatever the cause, once the departure delay reaches 2, 3 or 4 hours depending on distance. A cancellation still gives you the choice of a refund within 7 days or a replacement flight.
Canada: three categories instead of one
Canada's Air Passenger Protection Regulations sort every disruption into outside the airline's control (s. 10), within its control but required for safety (s. 11), and within its control (s. 12). Only the third pays compensation — $400 to $1,000 with a large airline. The safety category has no equivalent in EU law: a mechanical problem found before departure may be "required for safety" in Canada and still be the airline's responsibility under EU261.
A worked example: Paris to Montréal, delayed 5 hours by a fault found during the pre-flight check. Under EU261 (the flight leaves the EU) the technical fault is not extraordinary, so the payment is €600. Under Canada's rules, if the airline classes it as required for safety, nothing is owed under s. 19 — and you would claim under EU261.
The United States: no test needed
US rules pay no cash for delays, so there is nothing to excuse. The refund right after a cancellation or a 3-hour domestic delay applies whatever the cause, weather included.
Challenging a refusal
Ask the airline, in writing, what the extraordinary circumstance was and what measures it took. If the answer does not satisfy you, take it to the next step named on the EU261 or UK261 page — the national enforcement body, an ADR scheme or the CAA — before thinking about a claim company or court.
Sources
- Regulation (EC) No 261/2004 (EUR-Lex) — Article 5(3)
- CJEU, Joined Cases C-402/07 and C-432/07 Sturgeon (19 Nov 2009)
- Air Passenger Protection Regulations, SOR/2019-150 (Justice Laws) — ss. 10–12, 19
- 14 CFR 260.2 (eCFR)
Questions
Is a technical fault an extraordinary circumstance?
Usually not. The Court of Justice held in Sturgeon that a technical problem is not extraordinary unless it stems from events which, by their nature or origin, are not inherent in the airline's normal activity and are beyond its actual control.
Is bad weather an extraordinary circumstance?
Weather that makes a flight unsafe or closes an airport is generally treated as outside the airline's control. The airline still has to show that the weather caused your delay and that it took all reasonable measures.
Do I still get meals and a hotel if the delay was extraordinary?
Yes under EU261 and UK261. Care under Article 9 is owed whatever the cause. Canada's rules give care for delays within the airline's control, including safety-related ones.
Who has to prove the cause?
The airline. Article 5(3) says the carrier is not obliged to pay if it can prove the cancellation was caused by extraordinary circumstances. A refusal should say what happened.