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ECJ: Air Traffic Management Decisions Do Not Automatically Constitute Extraordinary Circumstances

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In its judgment of 8 October 2026 (C-108/26 RX), the European Court of Justice (ECJ) ruled that decisions taken by Air Traffic Management (ATM) do not automatically constitute extraordinary circumstances within the meaning of Article 5(3) of Regulation (EC) No 261/2004. The ECJ thereby overturned the judgment of the General Court of the European Union delivered in January 2026.

Background: The General Court’s Judgment of January 2026

As previously reported in our Aviation News article of 22 January 2026, the General Court had held that ATM decisions may, in principle, constitute extraordinary circumstances, provided that they were genuinely beyond the airline’s control. According to the General Court, the specific reasons underlying an ATM decision were not decisive.

ECJ Tightens the Requirements

The ECJ has now rejected this approach. The fact that an ATM decision is beyond an airline’s control is not, in itself, sufficient to establish extraordinary circumstances. Instead, the requirements of Article 5(3) of Regulation (EC) No 261/2004 must be assessed on a case-by-case basis.

From an airline’s perspective, this decision is disappointing. Airlines have no influence over the allocation of departure slots by ATM authorities and do not necessarily have access to the reasons underlying such decisions. While the allocation of a delayed departure slot can usually be documented, proving the circumstances that led to the decision often presents considerable practical difficulties.

Implications for Austrian Case Law

The Regional Court of Korneuburg (Landesgericht Korneuburg) has long taken the position that the circumstances underlying an ATM decision are relevant when assessing whether it constitutes an extraordinary circumstance. Accordingly, the mere allocation of a delayed departure slot is not sufficient.

The General Court’s judgment of January 2026 was at odds with this established Austrian case law. With its latest judgment, the ECJ has now confirmed the approach taken by the Regional Court of Korneuburg.

The hope raised by the General Court’s judgment for a clearer and more practical legal framework for airlines has therefore not materialised. Airlines will continue to be required to prove the circumstances underlying decisions taken entirely outside their control, even though they often have no full insight into the reasons behind those decisions.

Don’t hesitate to contact our Aviation Team to learn more about passenger claims in Austria.

EmpCo Directive Aviation

EmpCo Directive – Environmental Communication in Aviation

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Directive (EU) 2024/825 – (Empowering Consumers for the Green Transition – ‘EmpCo Directive’) aims to provide greater protection for consumers against greenwashing and misleading sustainability claims.[1] It is designed to enable consumers to make informed purchasing decisions and, in particular, to prevent individual environmental measures or external climate protection projects from creating the false impression that a product or service is sustainable, climate-neutral or low-emission.

In Austria, these requirements are primarily implemented through the amendment to the Act against Unfair Competition (‘UWG’).[2] Supplementary information requirements under consumer contract law, on the other hand, are implemented in particular through the Distance and Off-Premises Sales Act (FAGG).[3] The new regulations apply from 27 September 2026.

The scope covers all commercial practices by companies vis-à-vis consumers. Where the term ‘product’ is used, it encompasses, according to the definition in the UWG, both goods and services, including immovable property, digital services and digital content, as well as rights and obligations.[4]

The Austrian UWG may also apply to companies based outside of Austria if there is a sufficient domestic connection, in particular where the commercial practice affects or is likely to affect Austrian consumers or the Austrian market.[5] Indications of this may include, for example, the website specifically targeting Austrian customers, the language used, or its commercial focus (e.g. offering flights to and from Austria), etc.

Consequences of a breach of the UWG may include, in particular, legal action by competitors or collective actions brought by organisations with standing to sue (e.g., the Association for Consumer Information, VKI). Such legal action may result, in particular, in injunctions and costly publication of the judgement at the expense of the airline concerned.

Environmental Claims

An environmental claim is any message or representation in commercial communications that is not required by law and which, states or implies that a product, a product category, a brand or a company has a positive impact on the environment or no impact at all, is less damaging to the environment than others, or that its environmental impact has improved over time.[6]

This covers not only verbal claims, but also, in particular, communication via text, images and symbols. This explicitly includes labels, brand names, company names and product names. Consequently, a green colour scheme, leaf or nature motifs, as well as terms such as ‘Green Fare’, ‘Eco’, ‘Conscious Flying’ or ‘Responsible Travel’, may in principle constitute an environmental claim.

Environmental claims are inadmissible if they are made in relation to the company’s entire product or business activity, even though they in fact relate only to a specific aspect of the product or a specific activity within the company’s business.[7]

For example, a single benefit (such as on-board recycling or the use of renewable energy at the airport) must not be used to advertise the entire flight as ‘sustainable’ or ‘green’.

Generic Environmental Claims

A so-called general environmental claim exists where an environmental claim, made either orally or in writing, is not contained within a sustainability label and where the specifics of that claim are not clearly and prominently stated on the same medium.[8] This may include, in particular, terms such as ‘environmentally friendly’, ‘green’, ‘ecological’, ‘climate-friendly’, ‘sustainable’, ‘low-carbon’ or ‘Eco’.

General environmental claims are not permitted unless recognised excellent environmental performance can be demonstrated specifically for that claim.[9]

Recognised Excellent Environmental Performance

A recognised excellent environmental performance exists where the performance

  • complies with the EU Ecolabel in accordance with Regulation (EC) No 66/2010;
  • complies with an environmental labelling scheme officially recognised in a Member State in accordance with EN ISO 14024 Type I; or
  • achieves the highest level of environmental performance under other applicable Union law.

The environmental performance must always relate to the specific claim.

Sustainability Labels

Sustainability labels may only be used if they have been established by a government body or are based on an approved certification scheme.[10]

Labels developed in-house, such as ‘Eco Choice’, ‘Green Flight’, ‘Sustainable Fare’ or similarly designed quality marks, are therefore particularly risky if they are not based on such a certification scheme.

Offset-based Climate Claims

Statements claiming that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions are not permitted, even if the statement is based on the offsetting of greenhouse gas emissions.[11]

Statements such as ‘climate-neutral flying’, ‘CO₂-neutral flight’ or ‘With this surcharge, you reduce the emissions from your flight’ are therefore particularly risky.

Future Targets and Net-zero Claims

Claims such as ‘Net Zero by 2050’ or ‘we will become climate-neutral’ are only permissible if they are based on clear, objective, publicly available and verifiable commitments.[12] A detailed and realistic implementation plan is required, with measurable and time-bound targets, resource planning and regular verification by independent third parties. The results of these audits must be made available to consumers.

 

Our Aviation Team will be happy to answer your questions regarding the implications of the EmpCo Directive in Austria and the EU, review your websites to minimise the risk of legal proceedings, and represent you in court should proceedings be initiated.

Click here for the pdf version of our article on the EmpCo Directive.

 

Disclaimer

The information provided here and the checklist are intended solely as general guidance on environmental and climate communication in the aviation sector and do not replace an assessment of individual cases.

The statements and examples provided are not exhaustive and do not constitute a general legal assessment of specific terms or communication measures.

[1] The EmpCo Directive amends, in particular, Directive 2005/29/EC on unfair commercial practices (‘the Unfair Commercial Practices Directive’) and Directive 2011/83/EU on consumer rights.

[2] Federal Act against Unfair Competition 1984 – UWG as amended by Federal Law Gazette I No. 58/2026.

[3] Distance and Off-Premises Sales Act – FAGG as amended by Federal Law Gazette I No. 59/2026.

[4] Section 1(4)(1) of the UWG, as amended.

[5] See Article 6(1) in conjunction with Article 3 of the Rome II Regulation.

[6] See Article 1(1)(b) of the EmpCo Directive in conjunction with Article 2(o) of the UGP Directive; Section 1(4)(11) of the UWG as amended by Federal Law Gazette I No. 58/2026.

[7] Annex, point 4b of the UWG as amended by Federal Law Gazette I No. 58/2026.

[8] Article 2(p) of the Unfair Commercial Practices Directive as amended; Section 1(4)(12) of the UWG as amended by Federal Law Gazette I No. 58/2026.

[9] Annex, point 4a of the UWG as amended by Federal Law Gazette I No. 58/2026.

[10] Annex, point 2a of the UWG as amended by Federal Law Gazette I No. 58/2026.

[11] Annex, point 4c of the UWG, as amended by Federal Law Gazette I No. 58/2026.

[12] See Recital 4 of the EmpCo Directive; Section 2(3)(4) of the UWG as amended by Federal Law Gazette I No. 58/2026.

OGH erklärt zahlreiche Gebührenklauseln in Ryanair-ABB für unzulässig

Austrian Supreme Court Declares Numerous Fee Clauses in GCC Unlawful

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In its judgment of 19 May 2026 (4 Ob 170/25s), the Austrian Supreme Court handed down a far-reaching decision on ancillary fees contained in airlines’ General Conditions of Carriage. The proceedings concerned 15 clauses used by Ryanair. The Supreme Court confirmed that 14 of these clauses were unlawful.

The decision illustrates the standards applied by Austrian courts when assessing the transparency and objective justification of fee provisions in conditions of carriage.

The Fee Clauses Challenged

  • Booking and infant fees: The provisions were non-transparent due to unclear terminology and references that were difficult to follow. In particular, the Supreme Court held that the refund of the booking fee could not be regulated in a manner that turned the determination of passengers’ rights into a “mental exercise” or could discourage them from enforcing mandatory rights.
  • Administrative fee for the refund of taxes: The Supreme Court also considered the clause imposing an administrative fee for the refund of unused taxes and charges to be non-transparent. Passengers could not ascertain the precise scope of their refund entitlement with sufficient clarity from the contractual provisions.
  • Airport check-in and boarding pass: Of particular practical relevance are the clauses providing for a fee of EUR 55 for airport check-in and EUR 15 for the issuance of a boarding pass. Under the interpretation most adverse to consumers, the airport check-in fee would have applied even where online check-in was unavailable for a reason attributable to the airline, such as a server outage. The Supreme Court considered this to constitute an unlawful transfer of the airline’s business risk to passengers. It also found no objective justification for charging a separate fee for issuing a boarding pass.
  • Seat reservations when travelling with children: The relevant provisions used different age limits and did not make sufficiently clear which seats had to be reserved and at what price. The Supreme Court therefore found the interaction between the clauses and the fee table to be non-transparent.
  • Cabin and checked baggage: The provisions specified different dimensions for the small item of cabin baggage permitted free of charge. Passengers were therefore unable to determine the maximum size up to which their baggage would actually be carried without an additional fee. A storage clause concerning baggage not collected in time was also unlawful: it left both the amount of the fee and the relevant period unspecified and, under the interpretation most adverse to consumers, could even have resulted in passengers losing ownership of baggage that had arrived late.
  • Flight changes and name changes: The Supreme Court objected to flat-rate flight-change and name-change fees where they were, without objective justification, disconnected from the airline’s actual costs. In relation to flight changes, passengers were also required to pay the difference where the new flight was more expensive, while receiving no refund where the new flight was cheaper.
  • Package travel and missed flights: A clause governing the transfer of a package travel contract could subject passengers to unspecified fees and therefore also conflicted with the Austrian Package Travel Act. Another clause, according to its wording, also covered flights missed through no fault of the passenger and thus potentially applied in cases where free re-routing was required under Regulation (EC) No 261/2004.

What Are the Implications of the Decision?

The Supreme Court did not hold that ancillary fees in air transport are generally unlawful. Rather, the specific wording and structure of each clause are decisive. Fees must be clearly understandable to passengers, must not restrict mandatory statutory rights and require an objective justification, particularly where they relate to ancillary services. Flat-rate fees that significantly exceed the actual costs incurred or transfer risks within the airline’s sphere to passengers are particularly problematic.

Airlines should therefore avoid reviewing fee provisions in isolation. The interaction between their GCC, fee tables, fare conditions and supplementary online information must also be transparent and consistent. Chains of cross-references, inconsistent terminology and insufficiently defined fees may, in themselves, render a clause invalid.

The judgment is available here.

Further information on drafting General Conditions of Carriage is available in our article on GCC in Austria here.

Our experienced Aviation Team is happy to answer your questions about the use of General Conditions of Carriage in Austria, review your GCC to reduce the risk of legal proceedings, and represent you in court.

Technical Failures

Technical failure affecting a new aircraft model

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The European Court of Justice (ECJ) ruled in case C-385/23 that the occurrence of an unexpected and unprecedented technical failure affecting a new aircraft model may constitute extraordinary circumstances within the meaning of Article 5 (3) of Regulation (EC) No 261/2004.

The case at hand concerns a flight from Helsinki (Finland) to Bangkok (Thailand) that was to be operated by an aircraft which had entered into service just over five months earlier. However, the fuel gauge of that aircraft experienced a technical failure during refueling shortly before take-off, which resulted in the cancellation of the flight due to safety concerns. Neither the aviation safety authority nor the aircraft manufacturer was aware of the defect prior to this incident. It was later on discovered that the reason for the failure was a hidden design defect affecting all aircraft of the same type.

Based on these facts of the case, the operating air carrier was of the opinion that the cancellation was necessary due to extraordinary circumstances and, therefore, refused to pay compensation payments to passengers.

The ECJ decided that such technical failures affecting a new aircraft model recently put into service where the manufacturer of that aircraft recognises that the failure was caused by a hidden design defect conerning all aircraft of the same type and impinging on flight safety are covered by the concept of extraordinary circumstances within the meaning of Article 5 (3) of Regulation (EC) No 261/2004.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.

Lack of Airport Staff

Lack of airport staff as extraordinary circumstances

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The European Court of Justice (ECJ) ruled in case C-405/23 that the lack of airport staff may constitute extraordinary circumstances within the meaning of Article 5 (3) of Regulation (EC) No 261/2004.

In the case at hand, a delay of more than 3 hours occurred, inter alia, because the loading of baggage onto the plane had been slowed down as there had been an insufficient number of staff of the airport operator responsible for that service. The question whether such lack of airport staff may constitute extraordinary circumstances was referred to the ECJ by the regional court of Cologne in its role as court of appeal.

The ECJ cited its prior ruling C-308/21 in which it was stated that general failures of an airport´s refueling system are not to be regarded as being intrinsically linked to the operation of the aircraft which completed the delayed flight. According to the ECJ, it is for the referring court to determine, whether the failures of the baggage loading operations due to a lack of airport staff must be regarded as a general failure in accordance with the cited case law. Regarding the criterion that extraordinary circumstances must also be beyond the air carrier´s control, the ECJ stated that it is for the referring court to determine whether the air carrier was able to exercise effective control over the operator of the airport.

It was further emphasized that extraordinary circumstances alone are not sufficient to relieve air carriers from their obligation to pay compensation to passengers. Air carriers must additionally state and proce that they took all reasonable measures appropriate to the situation.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.

The legal basis and the transferability of passenger rights

The legal basis and the transferability of passenger rights

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The European Court of Justice (ECJ) ruled in case C-11/23 that the entitlement to compensation for flight cancellations stems directly from Regulation (EC) 261/2004 and is independent from a contract of carriage the parties may have or may have not entered into. This clarifies that passengers have a right to compensation regardless of contractual stipulations, provided that they meet the conditions set forth in the Regulation.

Additionally, the ECJ stated that clauses within an air carrier´s General Conditions of Carriage (GCC) that limit a passenger´s options to transfer his rights granted by Regulation (EC) 261/2004 constitutes an impermissible restriction of his rights and is, therefore, null and void. The ECJ highlighted that in order to ensure a high level of protection for passengers, it is necessary to guarantee those affected by a cancellation the freedom to choose the most effective way to defend his or her right, including (where provided for by the relevant national law) to transfer his or her claim to a third party.

More detailed information on the use of GCC in Austria can be found in our article “General Conditions of Carriage in Austria“.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.

Urteil zu ABB

Ruling on the GCC of a Hungarian Airline

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The Austrian Supreme Court recently issued a new ruling (4 Ob 222/22h) on the General Conditions of Carriage (GCC) of a Hungarian airline, declaring numerous clauses therein as unlawful. This decision is the latest in a series of judgments against air carriers and their GCC.

The proceedings were initiated by the “Bundeskammer für Arbeiter und Angestellte”, an association authorized to litigate under the Austrian Consumer Protection Act and aimed to prohibit the airline from using certain clauses in their GCC. In its decision, spanning over 100 pages, the Austrian Supreme Court addressed numerous clauses, providing significant guidance for all air carriers operating in Austria.

Since authorized associations, especially the “Verein für Konsumenteninformation” (VKI) and the Bundeskammer für Arbeiter und Angestellte, can (and regularly do) file such lawsuits against airlines operating in Austria, it is advisable for air carriers to use this new ruling on GCC as an opportunity to review their own GCC. More detailed information on the standard procedures of associations authorized to file such lawsuits, the system of reviewing GCC in Austria, and the criteria applied can be found in our article “General Conditions of Carriage in Austria“.

The clauses whose use has now been prohibited by the Austrian Supreme Court include:

  • Liability exclusion for fragile luggage
  • Choice of law clause in favor of Hungarian law
  • The possibility of rebooking to an alternative means of transportation
  • Restriction of rights under Regulation (EC) 261/2004 (“Air Passenger Rights Regulation”)
  • Submission of compensation claims exclusively via the airline’s website

Our experienced Aviation Team is happy to answer your questions about the use of General Conditions of Carriage in Austria, review your GCC to reduce the risk of legal proceedings, and represent you in court.

General Conditions of Carriage in Austria

General Conditions of Carriage in Austria

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Besides the handling of Passenger Claims and the challenges related thereto, airlines are often confronted with complaints from consumer protection organizations regarding their General Conditions of Carriage (GCC). In Austria, especially the Verein für Konsumenteninformation (“VKI”), is very active in this regard and routinousely examines General Terms and Conditions of several companies, including GCC used by airlines that are active in Austria.

If an airline´s GCC contains clauses that the VKI deems to be unlawful, it will request the airline to sign a cease and desist declaration preventing it from using these specific clauses and to pay a contractual penalty to the VKI for every breach.

If the airline refuses to sign such declarations, the VKI files a lawsuit demanding the stop of the use of certain clauses and the publishing of the ruling against the airline in Austria´s most read newspaper at the airline´s expense.

During its proceedings, the competent court assesses every clause of the challenged GCC based on the following criteria:

Unusual clauses that are surprising and disadvantageous

§ 864a of the Austrian Civil Code states that in General Terms and Conditions (like GCC) clauses of an unusual content that are surprising and disadvantageous for the other party are not regarded to be part of contracts based on these GTC.

However, such clauses can be valid if the party using them in its General Terms and Conditions has specifically notified the other party of their use.

Grossly disadvantageous clauses

§ 879 (3) of the Austrian Civil Code states that clauses contained in General Terms and Conditions which do not specify one of the main services to be provided by either party shall be void if they are grossly disadvantageous for one party.

Austrian courts interpret the exception set forth regarding main services very narrowly, which leads to the provision being applicable to basically all clauses that do not concern the individual description of the type, scope and quality of the main services. The assessment whether a clause is grossly disadvantageous is, in general, being made by comparison with the codified provisions of Austrian civil law together with a balancing of the parties´ interests.

Intransparent clauses

The Austrian Consumer Protection Act sets forth several types of clauses that are not binding for consumers. § 6 (3) of this Act additionally stipulates that clauses contained in General Terms and Conditions shall be invalid if they are intransparent. This is, in particular, the case if the wording of such clauses is unclear, if their content is not easily comprehensible to the consumer or if they incorrectly present the average consumer´s legal position.

Collection of clauses that were deemed to be violating Austrian law

Since there have already been numerous court proceedings regarding GCC in Austria, we have an extensive collection of clauses that Austrian courts deemed to be violating Austrian law. This includes especially the following clauses:

  • No-Show Clauses[1] that are not limited to passengers intentionally circumventing the ticketing system[2],[3],[4]
  • Complaints from passengers are only accepted if the are made via e-mail, an online form or fax[5]
  • Scheduled departure times may change after the booking (without precising under which circumstances)[6]
  • Ticket refunds shall only be paid to the person or travel agency that booked the flight or only to the bank or credit card account that was used to pay the ticket fare[7]
  • Transport is denied if the flight coupon is severely damaged or altered[8]
  • Complaints must be made by the passenger himself and he must wait at lest 28 days for a response before instructing third parties to assert his claims on his behalf[9]
  • Passengers must pay an additional fee in cases of an offline check-in at the airport[10]
  • Deadline of two years for compensation claims regarding damages of any kind[11]
  • Claims must only be assigned to other passengers of the same booking or travel group[12]
  • Clauses that incompletely inform a passenger about his rights under the Montreal Convention or Regulation 261/2004[13],[14]

The consequences of a clause being deemed to be in violation of Austrian law are, on the one hand, that the airline loses the proceedings and is, therefore, obliged to stop using this clause, to reimburse the other party´s legal fees and to pay for a publication of the ruling in an Austrian newspaper. On the other hand, the clause is regarded to be null and void, which means that passengers are not bound by it.

Airlines must stay vigilant

Due to the routinely reviews of General Conditions of Carriage by consumer protection agencies, airlines have to pay specific attention to the content of their GCC when they are active in Austria in order to avoid court proceedings, costs and negative publicity.

Our Aviation Team at Weisenheimer is experienced in handling such cases and happy to answer your questions related to the use of General Conditions of Carriage in Austria, to review your GCC to mitigate the risk of legal proceedings and to represent you in court proceedings.

Click here for the pdf version of our article on General Conditions of Carriage in Austria.

 

[1] You can find our more detailed analysis of No-Show Clauses in Austria based on court proceedings our Aviation Team was involved in by clicking here.

[2] Brussels Airlines, Higher Regional Court Vienna, 10.07.2019, 129 R 56/19g.

[3] KLM, Higher regional Court Vienna, 11.06.2019, 1 R 73/19s.

[4] Lufthansa, Austrian Supreme Court, 20.04.2021, 4 Ob 63/21z.

[5] Laudamotion, Higher Regional Court Vienna, 23.2.2021, 2 R 48/20y.

[6] Laudamotion, Austrian Supreme Court, 18.03.2022, 6 Ob 127/21a.

[7] SWISS, Higher Regional Court Vienna, 04.11.2022, 2 R 106/22f.

[8] Lufthansa, Austrian Supreme Court, 20.04.2021, 4 Ob 63/21z.

[9] Laudamotion, Higher Regional Court Vienna, 23.2.2021, 2 R 48/20y.

[10] Laudamotion, Austrian Supreme Court, 27.02.2020, 8 Ob 107/19x.

[11] Lufthansa, Austrian Supreme Court, 20.04.2021, 4 Ob 63/21z.

[12] Laudamotion, Higher Regional Court Vienna, 23.2.2021, 2 R 48/20y.

[13] Lufthansa, Austrian Supreme Court, 20.04.2021, 4 Ob 63/21z.

[14] Laudamotion, Austrian Supreme Court, 18.03.2022, 6 Ob 127/21a.