EU Advocate General Norkus: Stricter Airline Delay Compensation Rules Urged

• EU Advocate General Rimvydas Norkus has recommended a stricter interpretation of 'extraordinary circumstances' for airline delay compensation.
• The opinion suggests airlines must prove the underlying cause of a delay was both outside normal operations and beyond their actual control, even for air traffic restrictions.
• This recommendation stems from a case involving DelayFix's claim against LOT Polish Airlines for a flight delayed by three hours and seven minutes.
• Norkus's view could increase airline liability, requiring carriers to demonstrate they took all reasonable measures to prevent delay consequences.
• While non-binding, Advocate General opinions are frequently followed by the Court of Justice of the European Union.

Advocate General Rimvydas Norkus has recommended that the Court of Justice of the European Union (CJEU) overturn a previous ruling, suggesting a more stringent interpretation of what constitutes an excusable delay for carriers.

A senior adviser to the European Union's highest court has urged a re-evaluation of how airlines justify refusing compensation to delayed passengers, particularly concerning delays attributed to external restrictions. Advocate General Rimvydas Norkus has recommended that the Court of Justice of the European Union (CJEU) overturn a previous ruling, suggesting a more stringent interpretation of what constitutes an excusable delay for carriers.

This recommendation comes as the CJEU reviews a claim brought by DelayFix against LOT Polish Airlines. The case centers on a passenger's flight from Izmir, Turkey, to Warsaw on July 25, 2023, which arrived three hours and seven minutes late. DelayFix is seeking $464 (400 euros) plus interest after the passenger transferred her compensation rights to the claims company. The airline argued that the delay was primarily due to weather-related air traffic restrictions over Hungary and Romania, which affected the plane's preceding flight, alongside two hours and eight minutes spent on repairs in Izmir. A Warsaw court had specifically inquired whether air traffic restrictions could absolve the airline of its compensation obligations.

Advocate General Norkus's opinion proposes a significant shift in the legal framework surrounding *CJEU airline passenger rights* and *airline liability*. He recommended replacing the General Court's January ruling, which had allowed an air traffic decision to qualify for an exemption if it was beyond the carrier's control and the airline had not contributed to it, regardless of the underlying cause. Norkus argues that for a delay to be exempt, the *underlying event* must fall both outside normal airline operations and beyond the carrier’s actual control.

Crucially, Norkus emphasized that a clear distinction must be drawn between the root cause of a disruption and the measure through which that disruption impacts the actual flight operation. He further stipulated that airlines must demonstrate that reasonable measures could not have prevented the consequences of the delay. The Advocate General found the errors in the earlier ruling to be serious enough to jeopardize the consistent application of EU law, thus warranting intervention. While his opinions are not binding, they are frequently adopted by the court, setting a precedent for future *EU Advocate General Norkus airline delay compensation* cases.

The potential redefinition of *airline delay extraordinary circumstances* has elicited varied responses from legal experts. Claudia Bischof, an aviation lawyer at Lindbergh Legal, welcomed Norkus's opinion, asserting that airlines should not be absolved of responsibility simply because another entity ordered a delay. She highlighted that air traffic management decisions can arise from routine capacity constraints, not just genuinely exceptional weather or security events, a point she made in a 2023 article cited by Norkus. Piotr Gad, who represented DelayFix, also praised the opinion for preserving two distinct tests, thereby preventing operational decisions from becoming a convenient shortcut to exemption from compensation, even when the underlying cause is a normal constraint of air travel.

Conversely, Dominik Weiss, an aviation lawyer at Flitsch Leuthner Leiter, expressed a preference for the clearer rule established by the earlier ruling. He noted that airlines are bound by these decisions but often lack insight into the authority's decision-making process, making it difficult to prove why a particular restriction was imposed. Weiss acknowledged that being blameless does not automatically exempt an airline from paying compensation. He also identified a potential tension with newly adopted legislation that lists traffic and airport capacity restrictions as possible exceptions, though Norkus clarified that this new reform did not apply to the current claim and supported individual scrutiny. Weiss anticipates that Austria’s practice of examining underlying causes will remain relevant if judges align with Norkus's recommendation, which also leaves room for exceptional events on earlier flights to excuse a later delay.

Airlines operating in the EU should prepare for a potentially stricter interpretation of 'extraordinary circumstances' regarding passenger delay compensation, as suggested by Advocate General Norkus. This could lead to increased liability for delays previously attributed to air traffic restrictions, requiring legal teams to review compliance procedures and adjust strategies for assessing and defending against compensation claims.

Source: Original reporting via The Associated Press