Provisional text
DECISION OF THE COURT OF JUSTICE (Reviewing Chamber)
12 March 2026 (*)
( Review )
In Case C‑108/26 RX,
PROPOSAL for review made by the First Advocate General, pursuant to Article 62 of the Statute of the Court of Justice of the European Union, on 20 February 2026,
THE COURT (Reviewing Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Reviewing Chamber, F. Schalin, M. Gavalec and Z. Csehi, Judges,
makes the following
Decision
1        The proposal for review made by the First Advocate General concerns the judgment of the General Court of the European Union of 21 January 2026, D (Air traffic management decision) (T‑134/25, EU:T:2026:35), in which the General Court ruled on the request for a preliminary ruling made by the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court for the City of Warsaw, Poland, Poland), and concerns the answer to the first and second questions submitted by the referring court.
2        In its judgment, the General Court ruled, inter alia, in response to those questions, that ‘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)], must be interpreted as meaning that an air traffic management decision may constitute an “extraordinary circumstance”, within the meaning of that provision, irrespective of the duration of the delay entailed and the reason for it, if it is established that that decision was beyond the actual control of the air carrier concerned, in particular where it can be ruled out that that carrier contributed to that decision, which it is for the referring court to ascertain’.
3        It is apparent from the third subparagraph of Article 256(3) TFEU that decisions given by the General Court on questions referred for a preliminary ruling may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute of the Court of Justice of the European Union, where there is a serious risk of the unity or consistency of EU law being affected.
4        Pursuant to Article 62 of the Statute of the Court of Justice of the European Union, where the First Advocate General considers that there is a serious risk of the unity or consistency of EU law being affected, he may propose that the Court of Justice review the decision of the General Court.
5        In that regard, it is clear from Article 194(5) of the Rules of Procedure of the Court of Justice that, when considering such a proposal to review, the Reviewing Chamber is to decide whether the decision of the General Court is to be reviewed. The decision to review the decision of the General Court is to indicate only the questions which are to be reviewed.
6        In the present case, the Reviewing Chamber considers it necessary to review the judgment of the General Court of 21 January 2026, D (Air traffic management decision) (T‑134/25, EU:T:2026:35).
7        The question which is to be reviewed is set out in point 2 of the operative part of the present decision.
On those grounds, the Court (Reviewing Chamber) hereby decides:
1.      It is necessary to review the judgment of the General Court of the European Union of 21 January 2026, D (Air traffic management decision) (T‑134/25, EU:T:2026:35).
2.      The review shall concern the question whether, having regard in particular to the judgments of the Court of Justice of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43), and of 23 March 2021, Airhelp (C‑28/20, EU:C:2021:226), the judgment of the General Court of the European Union of 21 January 2026, D (Air traffic management decision) (T‑134/25, EU:T:2026:35), adversely affects the unity or consistency of EU law inasmuch as the General Court ruled that:
–        an air traffic management decision is not inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned, since it does not form part of that carrier’s activity but falls within the activities and competence of the air traffic management services;
–        such a decision, irrespective of the reason for it, is beyond the actual control of that carrier, provided that the carrier did not contribute to that decision; and
–        consequently, 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 such a decision may constitute an ‘extraordinary circumstance’, within the meaning of that provision, irrespective of the duration of the delay entailed and the reason for it, if it is established that that decision was beyond the actual control of the air carrier concerned, in particular where it can be ruled out that that carrier contributed to that decision.
3.      The persons referred to in Article 23 of the Statute of the Court of Justice of the European Union are invited to lodge their written observations on that question at the Court within one month of the service of the present decision.
[Signatures]
*      Language of the case: Polish.