The airline claims extraordinary circumstances so as not to pay
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
The company writing the word extraordinary in an email does not close the matter: whoever relies on an exemption has to prove it, showing the real cause of the disruption and the measures taken. If it fails to do so, it owes the compensation provided for in Regulation (EC) 261/2004. The action is time barred five years after the flight and requires documented prior negotiation.
Your return flight was due out at seven in the evening and took off at two in the morning. At the gate nobody explained anything. The next day you complained through the website form and got a four line automatic reply: the delay was due to an extraordinary circumstance beyond the company's control and no compensation is payable. It does not say what the circumstance was. You lost a 140 euro hotel night and a working day, and your partner and your two children were travelling on the same booking.
The case, in five lines
- What is brought
- A court claim for the compensation provided for in Regulation (EC) 261/2004 and for the losses evidenced, challenging the exemption the airline relies on without proving it.
- Before which court
- The Commercial section of the Tribunal de Instancia (the first-instance court), which hears transport matters, through whichever route matches the amount claimed.
- Deadline
- Five years from the moment performance could be demanded, that is, from the flight, under Article 1964.2 of the Civil Code for personal actions with no special period.
- Who can bring it
- Each affected passenger, even where all travelled on a single booking paid for by one person. Claims for minors are brought by their legal representatives.
- Financial risk
- If the airline does manage to evidence the cause it alleges and the measures it took, the claim is dismissed and there may be an order for costs. Claiming separately what could be joined multiplies that risk needlessly.
Naming the excuse is not the same as proving it
Regulation (EC) 261/2004 is the rule that governs your case, and both the compensation you claim and the exemption the airline relies on are founded on it. What decides the matter is not which of you cites the provision better, but who bears the burden of establishing the facts. Whoever asserts that a cause exists releasing it from payment must show that it happened and that it was genuinely beyond its control.
The automatic reply you received does none of that. It does not identify the event, does not give its time, does not explain what was done to avoid its consequences for your particular flight. In litigation, an assertion without documentary support is worth what any party's assertion is worth, and the airline knows it: that is why most of these matters resolve when someone demands in writing the detail that was never given.
The firm's opening letter does not argue doctrine, it asks for facts: which aircraft was covering the rotation, what time it landed on the previous leg, what incident was recorded, what standby aircraft were at base and what was offered to passengers. If the airline does not answer, that silence is documented and reaches the court together with the claim.
A fault in the airline's own aircraft is rarely beyond its control
The most repeated excuse is a technical fault found shortly before departure. The answer put to it is that maintaining the fleet is part of the normal exercise of an airline's activity and of the risks inherent in it, so a failure arising in that context is not an event beyond its control. The Court of Justice of the European Union has interpreted the Regulation along those lines.
The argument therefore moves to the detail: which part failed, whether the failure was found during scheduled maintenance, whether the warning had already been recorded in the aircraft log, whether there were standby aircraft or crews at that base. The more specific the questioning, the harder it becomes to sustain a generic label written in an automatic email.
There is a second front always raised in parallel. Even if the event invoked were genuinely extraordinary, the airline must also establish that it took the reasonable measures within its reach to avoid or reduce the delay. A late inbound aircraft and a crew running out of duty hours do not by themselves explain seven hours of waiting with no rerouting and no information.
A strike by its own staff is not beyond the airline's control
When the excuse is a strike, the first thing checked is whose staff took part in it. An industrial dispute with the airline's own pilots or cabin crew unfolds within the relationship the company has with its workers, and is part of the ordinary framework in which it carries on its business. The same is not true of a closure of the airspace or a strike by a third party outside the company.
That framework is constitutional, not accidental. Article 7 of the Constitution establishes that trade unions and employers' associations contribute to the defence and promotion of the economic and social interests proper to them, and that their creation and the exercise of their activity are free within respect for the Constitution and the law. Union activity is a normal feature of any company with a workforce.
In practical terms this comes down to dates. A strike called with notice allowed the schedule to be reorganised, alternative services to be hired or passengers to be rerouted in advance. That is why we always ask for the strike call, the notice given, the minimum services and the list of flights cancelled and flights operated that day: the contrast between the two is usually the best argument.
Five years to claim, but the evidence ages far sooner
The action is personal and Spanish law sets no special period for it, so Article 1964.2 of the Civil Code applies: personal actions with no special period are time barred five years after performance of the obligation may be demanded. On a flight, that moment is the disruption itself, not the airline's reply.
Five years sounds generous and is deceptive. Public flight tracking records keep data for a limited time, electronic boarding passes vanish from apps, the airline's emails get lost and the witnesses who travelled with you forget the times. The sooner the evidence is secured, the cheaper and safer the matter becomes.
It is also worth claiming for every passenger on the booking at the same time. Compensation is owed to each affected passenger, so a family of four generates four separate entitlements, and those four are joined in a single claim, with one evidential effort, one set of documents and one costs risk instead of four running in parallel.
Before suing you must negotiate, and be able to prove it
Article 5 of Organic Law 1/2025 requires, as a condition of admissibility in civil matters, prior recourse to an appropriate dispute resolution mechanism, and requires identity between the subject of the negotiation and that of the litigation, even though the remedies later sought may vary. The complaint you sent through the website form may not suffice if it does not match what is later claimed.
The rule itself solves how to comply without losing time: the requirement is met where the negotiating activity is carried out directly by the parties or between their lawyers, under their instructions and with their agreement. A reasoned demand, identifying the passengers, the amount and the grounds, works both to negotiate and to prove that negotiation took place.
The article also lists the cases in which that prior step is unnecessary, among them enforcement claims, interim measures sought before the claim is brought and preliminary enquiries. That last door is a useful one when what is needed before suing is precisely the internal document about the flight that the airline is refusing to hand over.
The route depends on the amount, and it is almost always the verbal one
Article 250 of the Ley de Enjuiciamiento Civil (the Spanish civil litigation statute) provides in its second paragraph that claims not exceeding fifteen thousand euros, and not concerning the matters reserved to the ordinary route, are decided in the juicio verbal, the shorter of the two declaratory routes. Compensation for a family group over one flight falls well below that threshold.
That has a practical consequence worth understanding from the outset: in a low value matter the evidence is prepared before the claim is filed, because afterwards there is little room. The documents establishing the real departure time, the booking and the expenses are gathered and organised before the first step is taken before the court.
Jurisdiction by subject matter lies with the Commercial section of the Tribunal de Instancia, which is the section that hears transport matters. Bringing the claim before the wrong section delays the case and eats into the limitation period, so the correct allocation is checked and confirmed before anything at all is put in to the court.
How we run the case, step by step
- 1
Reconstructing the flight
We fix the scheduled and actual departure and arrival times, the aircraft assigned and its rotation that day. With those facts we know whether the airline's account matches what actually happened on the apron.
- 2
Detailed demand to the airline
We ask it in writing to identify the event relied on, its time and the measures taken, and we quantify what is claimed for each passenger. Its silence or its generic reply is documented for the case.
- 3
Documented prior negotiation
The requirement of Article 5 of Organic Law 1/2025 is met and recorded, taking care that what is negotiated matches what is later claimed, including every passenger and every head of loss.
- 4
Claim before the Commercial section
The claims of all the passengers on the booking are joined, the Regulation compensation and the evidenced losses are sought, and the airline is required to produce the internal documents for the flight.
- 5
Hearing and proof of the real cause
At the hearing what the airline produces is set against the flight records and against what it said in writing. Contradictions between its first reply and its later defence weigh heavily.
- 6
Actual recovery
Once judgment is obtained, full payment with interest and costs is demanded and, if the airline does not comply, enforcement is sought without letting more time pass.
The evidence that decides the case
- The boarding passes and the complete booking, showing every passenger and the flight number.
- The airline's written reply relying on the extraordinary circumstance, with its date and its exact wording.
- The public flight tracking record with the real departure and arrival times and the aircraft registration.
- That aircraft's rotation through the day, showing whether the delay was carried over from earlier legs.
- Receipts for the expenses you had to advance: hotel, meals, alternative transport and the booking that was lost.
- If the excuse was a strike, the strike call with its notice period and the list of flights operated and cancelled that day.
What closes the door
- Accepting a discount voucher or loyalty points. It usually comes with a waiver that is later raised against any claim over the same flight.
- Taking the automatic reply at face value and closing the matter. That reply establishes nothing and its evidential value is that of any party's assertion.
- Waiting years for the administrative route to resolve while the flight records cease to be available. The five year period protects the action, not the evidence.
- Suing without evidencing the prior negotiation of Article 5 of Organic Law 1/2025, or negotiating over a different subject from the one later claimed.
- Claiming only for whoever bought the tickets. Each affected passenger has an entitlement of their own, and splitting the claims multiplies cost and risk.
The law that applies
- Art. 1964.2 CC. Personal actions with no special period are time barred five years after performance of the obligation may be demanded, and in continuing obligations to do or not to do, time starts afresh on each breach. The same article sets twenty years for the mortgage action. BOE-A-1889-4763
- Art. 5 LO 1/2025. It requires, as a condition of admissibility in civil matters, prior recourse to an appropriate dispute resolution mechanism, with identity between what is negotiated and what is litigated. It is met by mediation, conciliation, a neutral expert opinion, a confidential binding offer or direct negotiation by the parties or their lawyers. It is not required for enforcement claims, prior interim measures or preliminary enquiries. BOE-A-2025-76
- Art. 250.2 LEC. Claims not exceeding fifteen thousand euros are decided in the juicio verbal, provided they do not concern any of the matters the article itself reserves for that route regardless of value, nor those of the preceding article. BOE-A-2000-323
- Art. 7 CE. Trade unions and employers' associations contribute to the defence and promotion of the economic and social interests proper to them. Their creation and the exercise of their activity are free within respect for the Constitution and the law, and their internal structure and operation must be democratic. BOE-A-1978-31229
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Do I have to prove there was no extraordinary circumstance?
No. Your part is to establish simple documentary facts: that you had a confirmed booking, that you presented yourself and that the flight was delayed or cancelled. Whoever seeks release from payment is the one who must show the event relied on, that it was beyond its control and what measures it took. That allocation is what turns an automatic email into a weak argument.
The airline offers me a voucher worth more. Should I take it?
Before accepting it you must read what you are signing. A voucher usually comes with an expiry date, specific routes and, above all, a waiver of any claim over that flight. An enforceable right to money is not exchanged for a promise of a discount without first weighing what the matter is worth and what is lost by signing. That comparison is made in writing with the figure in front of you.
The flight was three years ago. Am I still in time?
Yes, where this is a personal action with no special period, because Article 1964.2 of the Civil Code sets five years from when performance could be demanded. What worries us at that stage is not the deadline but the evidence: flight records and the airline's emails may have gone. The first step is to secure whatever survives before taking any other.
There were four of us on one booking. One claim or four?
Compensation is owed to each affected passenger, so there are four entitlements, but they are claimed in a single matter. Joining them saves evidence, saves time and concentrates into one costs risk what would otherwise be four parallel cases. Claims for minors are brought by their legal representatives, with documents proving that capacity.
Does the public authority's decision get me the money?
The administrative route examines the case and gives a view, but what compels payment and allows enforcement if payment does not come is the court. That is why the matter is framed from the start with the claim in mind: the evidence is gathered, the prior negotiation is completed and the claim is brought before the Commercial section of the Tribunal de Instancia, without the administrative step consuming either the deadline or the evidence.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.