Opinion of the Advocate General — ECLI:EU:T:2025:1061
Date: 2025-11-26
Language of the case: German

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Translation T-656/24 – 1 
Case T-656/24 
Request for a preliminary ruling 
Date lodged: 
6 December 2024 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
20 November 2024 
Applicants and appellants: 
NI 
HZ 
Defendant and respondent: 
European Air Charter Aktiengesellschaft 
  
Order 
In the case of 
1. NI, […], 
2. HZ, […], 
applicants and appellants, 
[…] 
v 
European Air Charter Aktiengesellschaft, […] Sofia, Bulgaria, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20. 11. 2024 – CASE T-656/24 
 
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defendant and respondent, 
[…] 
the 22nd Civil Chamber of the Landgericht Düsseldorf (Regional Court, 
Düsseldorf), 
on 20 November 2024, 
[…] 
made the following order: 
The proceedings are stayed. 
The following questions concerning the interpretation of EU law are referred to 
the Court of Justice of the European Union pursuant to point (b) of the first 
paragraph and the third paragraph of Article 267 TFEU: 
1. 
Is the delayed arrival of a flight by at least three hours directly the result of 
an extraordinary circumstance within the meaning of Article 5(3) of the Air 
Passenger Rights Regulation even if, on a preceding flight on the same day, 
the operating air carrier decided, because of significant delays at the security 
check, to wait for passengers who had not yet been cleared and the resulting 
delay cannot be made up by the time of the flight at issue? 
2. 
If the answer to the first question depends on whether and how many 
passengers arrived for boarding of the delayed preceding flight, from what 
proportion of passengers booked on the flight who actually turned up is the 
(further) delay of the preceding flight no longer directly the result of 
extraordinary circumstances within the meaning of Article 5(3) of the Air 
Passenger Rights Regulation, but on an autonomous decision by the air 
carrier which lies solely within its sphere of control? 
Grounds: 
I. 
The applicants each had a confirmed reservation for the flight to be operated by 
the defendant on 23 July 2022 from Düsseldorf to Varna (flight number: 
BUC 6308) with a scheduled departure at 15.00 (all times indicated in UTC) and a 
scheduled arrival in Varna at 17.50. The flight from Düsseldorf to Varna was, in 
fact, delayed. It did not depart until 18.39 and arrived in Varna at 21.12 with a 
delay of three hours and 22 minutes. 
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The applicants are each claiming payment of compensation of EUR 400.00 and 
reimbursement of food costs of EUR 20.00 per person, making a total of 
EUR 420.00 per person. 
The defendant contests the claims made by the applicants. It asserts that the first 
of two preceding flights from Cologne/Bonn to Varna (BUC 6004) was scheduled 
to depart from Cologne/Bonn at 07.40 and to land in Varna at 10.30. From there, 
the second of the two preceding flights (BUC 6307) from Varna to Düsseldorf 
was scheduled to depart at 11.20 and to land in Düsseldorf at 14.10. The flight at 
issue, flight BUC 6308 from Düsseldorf to Varna, was intended to follow that 
flight. All the flights in that rotation were scheduled to be operated with the 
defendant’s aircraft with the registration LZ-LAA, manufactured by Airbus. 
Because of unusually long waiting times at Cologne/Bonn airport, which were 
caused by excessive work volumes for the personnel carrying out the security 
checks, passengers were delayed in arriving for boarding flight BUC 6004. At the 
scheduled departure time for the flight, no passengers had arrived at the gate for 
boarding. Fifty of the 152 booked passengers had arrived at the gate at 10.00 and 
140 at 11.40. The defendant decided to wait for the passengers who were at the 
security check and, consequently, [the flight] took off from Cologne/Bonn at 
12.53 with a late departure of five hours and 10 minutes. 
As soon as the delay was foreseeable to the defendant, the defendant rescheduled 
the flight rotation at issue to another aircraft. Starting with flight 6307 from Varna 
to Düsseldorf, it used its own MD82 aircraft with the registration LD-LDN to 
continue the rotation. That aircraft had been available in Varna from 10.50. 
However, because it was first necessary to obtain a landing permit for the noisier 
aircraft type (MD82) in Düsseldorf, the departure of flight BUC 6307 was delayed 
and it was not possible to take off until 14.10. The aircraft landed at 17.03 in 
Düsseldorf, where the flight at issue was able to depart with a Eurocontrol slot at 
18.39. 
The Amtsgericht (Local Court) dismissed the action at first instance except for the 
food costs claimed. The applicants lodged an appeal against that judgment at first 
instance in due form and in good time. 
Before the appeal court, the applicants are now claiming that the judgment of the 
Amtsgericht Düsseldorf (Local Court, Düsseldorf) (reference: 231 C 68/23) 
delivered on 19 February 2024 should be altered and that the defendant should be 
ordered to pay them each a further EUR 400.00 plus interest at a rate of five 
percentage points above the base rate from 2 November 2022 and a further 
EUR 100.39 plus interest at a rate of five percentage points above the base rate 
from 2 November 2022. 
The defendant defends the judgment delivered at first instance. 
II. 
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The outcome of the action depends crucially on the questions set out in the 
operative part. 
Specifically: 
1. The applicants could, first of all, each have a right to compensation for long 
delay of EUR 400.00 under Article 5(1)(c) and point (b) of the first sentence of 
Article 7(1) of the Air Passenger Rights Regulation. 
(a) The Air Passenger Rights Regulation is applicable under Article 3(1)(a) and 
(2)(a) thereof. The applicants each had confirmed reservations for flight 
BUC 6308 from Düsseldorf to Varna on 23 July 2022, which was to be operated 
by the defendant. 
(b) The applicants also suffered a delay of more than three hours on arrival, 
giving rise to compensation. 
According to the case-law of the Court of Justice of the European Union, 
passengers have a right to compensation, by application mutatis mutandis of 
Article 5(1)(c) and Article 7(1) of the Air Passenger Rights Regulation, if they 
reach their planned final destination with a delay of three hours or more (see Court 
of Justice of the European Union, judgment of 19 November 2009, C-402/07 and 
C-432/07, paragraph 69; Court of Justice of the European Union, judgment of 
23 October 2012, C-581/10 and C-629/10, paragraph 40). 
Flight BUC 6308 was scheduled to land in Varna on 23 July 2022 at 17.50, but 
did not actually arrive there until 21.12, with a delay of three hours and 
22 minutes. 
(c) The right could, however, be excluded under Article 5(3) of the Air 
Passenger Rights Regulation. 
(aa) The [defendant] asserts that the extreme delays at the security check in 
Cologne/Bonn for the first of two preceding flights (BUC 6004) would constitute 
extraordinary circumstances within the meaning of Article 5(3) of the Air 
Passenger Rights Regulation. 
(1) The Air Passenger Rights Regulation does not contain a definition of the 
notion of extraordinary circumstances. According to settled case-law of the Court 
of Justice of the European Union, ‘extraordinary circumstances’ within the 
meaning of Article 5(3) of the Air Passenger Rights Regulation may exist when 
events occur 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. Both conditions must be met cumulatively (Court of Justice of the 
European Union, judgment of 11 June 2020, C-74/19, paragraph 37). According 
to recital 14 of the regulation, extraordinary circumstances may, in particular, 
occur in cases of security risks (Court of Justice of the European Union, judgment 
of 22 December 2008, C-549/07, paragraph 21). That recital also mentions 
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‘meteorological conditions incompatible with the operation of the flight 
concerned’ as an example of extraordinary circumstances. 
Against that background, the sudden, high level of absence of security check 
personnel could, in principle, constitute an extraordinary circumstance, as 
passenger checks are a task serving the security of air transport as a whole which, 
under Paragraph 2(1) and Paragraph 5 of the German Luftsicherheitsgesetz (Law 
on aviation security), is not assigned to air carriers and cannot therefore be 
influenced by them. Consequently, if there are personnel shortages and thus 
delays in connection with the necessary security checks, these are circumstances 
which lie outside the sphere of risk of the air carrier and are beyond its control. 
(2) On the other hand, it is crucial to the dispute whether a causal link existed 
between the sudden, high level of absence as an extraordinary circumstance and 
the actual delay on arrival of the flight at issue, flight BUC 6308. 
The Court of Justice of the European Union has ruled in connection with the 
question of when a cancellation is ‘caused’ by an extraordinary circumstance 
within the meaning of Article 5(3) of the Air Passenger Rights Regulation that 
there must be a direct causal link between the occurrence of that circumstance and 
the flight disruption (Court of Justice of the European Union, judgment of 11 June 
2020 – C-74/19 – juris, paragraph 55). Furthermore, it is argued that denied 
boarding due to cancellation is caused by an ‘extraordinary circumstance’ only if 
that has resulted directly and necessarily, that is to say, in the absence of other 
circumstances, in the denied boarding (BeckOK Fluggastrechte-VO/Schmid, 32nd 
edition, 1 October 2024, Article 5, paragraph 246; Staudinger/Keiler/Maruhn, 
Fluggastrechte-VO, 1st edition 2016, Article 5, paragraph 9). The Court of Justice 
of the European Union has ruled in that connection that an air carrier cannot be 
exempted from its obligation to pay compensation in the event of denied boarding 
on the ground that its flights were rescheduled as a result of extraordinary 
circumstances (Court of Justice of the European Union, judgment of 4 October 
2012, C-22/11, paragraph 38). In that respect, national courts have previously 
ruled that, in the event of the rescheduling of the flight plan as a result of an 
extraordinary circumstance, the cancellation or long delay of a subsequent 
rescheduled flight is no longer caused by the extraordinary circumstance, but 
rather by that commercial decision, even if the decision was indirectly 
necessitated by an extraordinary circumstance within the meaning of Article 5(3) 
(see Amtsgericht Hannover (Local Court, Hanover), judgment of 20 May 2016, 
511 C 11581/15, paragraph 18; Amtsgericht Düsseldorf (Local Court, 
Düsseldorf), judgment of 2 March 2017, 51 C 482/16, paragraph 24 et seq.; 
Landgericht Frankfurt (Regional Court, Frankfurt), judgment of 29 October 2015, 
2-24 S 68/15, paragraph 8 et seq.). 
The defendant claims that the first of the two preceding flights from 
Cologne/Bonn to Varna with flight number BUC 6004 was affected by the delays 
at the security check. The affected aircraft with the registration LZ-LAA should, 
subsequently, have first operated the flight to Varna and then returned to 
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Düsseldorf, from where the flight at issue was due to have departed. According to 
the defendant’s submissions, the aircraft LZ-LAA was ready for departure at 
Cologne/Bonn airport on time for flight BUC 6004, but a deliberate decision was 
taken to wait for the passengers who were at the security check and to depart only 
once all the passengers had arrived at the boarding gate. 
It was only because of that decision taken by the defendant that it became 
necessary to use a replacement aircraft. Against that background, it could be 
argued, in the light of the case-law cited above, that the actual delay on arrival of 
the flight at issue in Varna was not directly the result of the delays at the security 
check, but of the commercial decision taken by the defendant not to leave without 
the passengers who were waiting at the security check (see Amtsgericht Hannover 
(Local Court, Hanover), judgment of 20 May 2016, 511 C 11581/15, 
paragraph 18; Amtsgericht Düsseldorf (Local Court, Düsseldorf), judgment of 
2 March 2017, 51 C 482/16, paragraph 24 et seq.; Landgericht Frankfurt 
(Regional Court, Frankfurt), judgment of 29 October 2015, 2-24 S 68/15, 
paragraph 8 et seq.). 
It could be a different matter, however, if the direct causation of the cancellation 
or long delay on arrival due to the extraordinary circumstance is considered 
primarily in the light of the protective purpose of the Air Passenger Rights 
Regulation, on the basis of which the operating air carrier is required to take into 
account the interests of all passengers. In that case, ‘simple’ causality could be 
sufficient for the causal link between the extraordinary circumstance and the 
cancellation or long delay on arrival, at least if the rescheduling of the flight plan, 
in its specific form, takes into account the interests of all passengers equally. The 
defendant claims in that connection that the Air Passenger Rights Regulation does 
not give the operating air carrier grounds to operate flights without one or more 
passengers who are affected by an extraordinary circumstance in connection with 
ground handling merely in order to be able to operate the subsequent flights in a 
flight rotation on time. In respect of the passengers remaining at the departure 
airport, that would constitute a disregard for the purposes pursued by the Air 
Passenger Rights Regulation. The Local Court also considered it to be sufficient, 
in essence, for the causation of the delay by the extraordinary circumstance that, 
according to the defendant’s submissions, no passengers had arrived for the actual 
boarding of the first of the two preceding flights. 
It does not appear to be essential, in the light of the national and European case-
law on that subject, whether and to what extent, in determining the causal link 
between an extraordinary circumstance and a cancellation or long delay on arrival, 
such a normative/evaluative analysis is carried out where the remainder of the 
flight plan is rescheduled on account of extraordinary circumstances occurring on 
the same day. In any event, as far as can be seen by the referring court, the Court 
of Justice of the European Union has not yet made a definitive statement on 
whether an economic decision by the air carrier to delay the operation of or cancel 
a preceding flight, which became necessary on account of extraordinary 
circumstances, affects whether the cancellation or long delay of the subsequent 
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flight at issue is caused by the extraordinary circumstance (see, for an overview of 
the unresolved issues of causality, BeckOK Fluggastrechte-VO/Schmid, 32nd 
edition, 1 October 2024, Article 5, paragraph 245a). 
(3) The referring court tends, in principle, not to give such a normative loading 
to the causal link for the purposes of Article 5(3) of the Air Passenger Rights 
Regulation. In particular, in the view of the referring court, it does not seem 
appropriate, in principle, to give priority to the transportation interests of the 
passengers directly affected by the extraordinary circumstance over the passengers 
booked on the subsequent flights. 
In the view of the referring court, that position is supported by the fact that, unlike 
the reasonableness of avoidance measures, the existence of an extraordinary 
circumstance relates solely to the specific flight in question (see Court of Justice 
of the European Union, judgment of 4 October 2012, C-22/11, paragraph 37). 
That flight must be itself directly affected by an extraordinary circumstance within 
the meaning of Article 5(3) of the Air Passenger Rights Regulation. Only if it is 
established that there is such direct effect as a result of an extraordinary 
circumstance is the air carrier permitted, going beyond the ‘reasonableness’ of 
further measures to reduce the delay on arrival, also to take into account the 
interests of other passengers as part of such measures. 
That outcome should ultimately also satisfy the economic interests of the persons 
involved. If such rescheduling of the flight plan as a result of an extraordinary 
circumstance were considered to be sufficient to exculpate the air carrier in 
respect of the affected subsequent flights, the passengers booked on those 
subsequent flights would not have a right to compensation on the basis of 
Articles 5(1)(c) and 7(1) of the Air Passenger Rights Regulation. That outcome 
does not appear appropriate if it is borne in mind that those passengers booked on 
the subsequent flights do not generally have a legal relationship with those who 
directly caused the extraordinary circumstances, which would allow other claims 
for damages to be made under national legislation. On the other hand, the 
passengers booked on the flight directly affected by the extraordinary 
circumstance should be entitled, in principle, to such other rights to compensation 
if they are not transported as a result of the extraordinary circumstance (in the 
present case, for example, in claims for liability against the public authorities 
responsible for the security check). Against that background, by rescheduling the 
remainder of the flight plan accordingly, the air carrier was given the opportunity 
to transfer the economic risk arising from cancellation or long delay on arrival, 
which compensation through payment of a fixed amount is also intended to 
prevent (Court of Justice of the European Union, judgment of 29 July 2019 – 
C-354/18 – juris, paragraph 28), to other passengers. 
(4) If the direct causation of the cancellation or long delay on arrival as a result 
of the extraordinary circumstances depended on balancing the interests of 
different passengers on the same rotation, the case-law of the Court of Justice of 
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the European Union does not, in the view of the referring court, provide any 
criteria at present for determining how such a balancing decision should be made. 
In any case, the referring court does not consider it necessary to give priority to 
the transportation interest of the passengers affected by the extraordinary 
circumstance on a preceding flight over the transportation interest of the 
passengers booked on the subsequent flights. Furthermore, in the context of a 
normative/evaluative analysis, it would appear to be problematic, for example, to 
wait for a single passenger affected by an extraordinary circumstance on the 
preceding flight and thus to accept that, because of a prohibition on night flights 
which applies on account of the delay, 200 passengers booked on the subsequent 
flight cannot be transported to their destination airport at all or can be transported 
there only subject to long delays. At the same time, it appears doubtful at least 
whether it would be compatible with the protective purpose of the Air Passenger 
Rights Regulation to fly with an empty aircraft merely to prevent a delay on 
arrival of a subsequent flight of slightly more than three hours. Against that 
background, it seems at least conceivable to make a quantitative comparison of 
the passengers affected in each case. However, in the light of the above 
considerations regarding direct effect, neither does that seem essential, nor can 
reliable indications be inferred from the Air Passenger Rights Regulation as to the 
quantitative relationship between the passengers to be compared in each case. 
(bb) The question of the causal link between the extraordinary circumstance and 
the cancellation or long delay on arrival is also relevant to the decision in the 
present case because – subject to additional evidence to be taken – the defendant 
otherwise took all reasonable measures to reduce the actual delay on arrival. 
(1) As regards possible new reservations, the defendant has made sufficient 
arguments, mentioning all flights arriving in Varna between 17.50 and 21.12, to 
show that, in view of the airports from which there were flights to Varna and the 
pure flight time between Düsseldorf, the intermediate destination in question and 
Varna, a direct or indirect flight connection would not have made it possible to 
reduce the delay on arrival. 
(2) The defendant has also sufficiently demonstrated that a connection including 
ground transport could not have reduced the delay on arrival. As far as the airport 
in Sofia is concerned, that is clear from the pure journey time of 4.5 hours 
between Sofia and Varna, as submitted by the defendant. As far as the airport in 
Burgas is concerned, the defendant has made substantiated submissions, 
presenting corresponding arrival lists, that a connecting flight via one of those 
intermediate destinations would not have reduced the delay on arrival in view of 
the indicated journey time of around two hours between Varna and Burgas. 
According to the defendant’s submissions, there were no flights to the airports in 
either Varna or Burgas from other airports in Germany which could have been 
reached from Düsseldorf by means of ground transport. 
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(3) As regards the request for a replacement aircraft, the defendant has 
explained in detail, presenting its fleet list, that, regardless of when the long delay 
on arrival became apparent to it, there was no possibility of making available 
another replacement aircraft of its own at an earlier time. 
(4) Furthermore, in the view of the referring court, the defendant was not 
required to make any further arguments regarding the request for sub-charters as, 
according to its submissions, the defendant was entitled to take the view, even 
before the second flight in the rotation at issue (BUC 6307) was operated, that the 
late operation of the entire rotation as a result of the delays in Cologne/Bonn could 
be made up again by using its own replacement aircraft and that the flight rotation 
from flight BUC 6307 could be operated on time. According to the defendant’s 
submissions, the replacement aircraft was due to land in Varna at 10.00 and to be 
available to operate the remainder of the flight rotation from 10.50. Against that 
background, flight BUC 6307 from Varna to Düsseldorf, scheduled at 11.20, 
could have been operated without any delay using its own aircraft. 
2. The right to reimbursement of food costs under Articles 5(1)(b) and 9(1)(a) 
of the Air Passenger Rights Regulation, which was also claimed, is no longer in 
dispute. The Local Court has given a final ruling on that right. The questions 
referred in the case are not relevant to that right in any event because the 
exclusion of rights in Article 5(3) of the Air Passenger Rights Regulation does not 
apply to the rights arising from Article 5(1)(b) and Article 9 of the Air Passenger 
Rights Regulation. 
III. 
[…]