EU Regulation 261/2004 (EU261)1 has governed passenger rights in cases of flight delay, cancellation and denied boarding for more than two decades. During this period, the Court of Justice of the European Union (CJEU) has issued extensive jurisprudence refining and reshaping the regulation, often filling gaps left by its original text. This article provides a high-level summary of four 2025 CJEU judgments and considers whether, at its twenty‑first anniversary of coming into force, EU261 has matured into a stable regulatory regime or is showing signs of obsolescence.
Introduction
Since entering into force in February 2005, EU261 has become a central pillar of consumer protection in European air travel. It has also generated a steady flow of preliminary references2 from national courts across the EU, prompting the CJEU to deliver roughly 80 judgments interpreting its provisions. As the regulation moves into its third decade, it is judicial interpretation - rather than legislative amendment - that continues to shape and refine the scope and application of EU261.
The UK, following Brexit, retains the core principles of EU261 within the domestic regime (UK2613). Although post‑Brexit CJEU decisions no longer bind UK courts, they continue to hold persuasive authority in domestic adjudication.
Vouchers, miles, and consent under EU261
Airline loyalty programmes have grown significantly in sophistication since their inception, and many carriers now promote the use of vouchers or air miles as an alternative to cash compensation under EU261. The question of whether passengers implicitly consent to this by mere enrolment in a loyalty programme has recently reached the CJEU.
Article 8(1)(a) grants passengers the choice between reimbursement and re‑routing. Where reimbursement is selected, Article 7(3) sets cash payment as the default, subject only to the passenger’s signed agreement to receive compensation in travel vouchers and/or other services (such as air miles or vouchers).
An earlier 2024 CJEU judgment (Cobult UG v TAP Air Portugal SA (C‑76/23)) interpreted “signed agreement” as requiring evidence of effective and informed choice by the passenger, rather than formally executed consent. In a judgment of 16 January 2025, Flightright GmbH v Etihad Airways P.J.S.C. (C-642/23), the CJEU held that whilst “signed agreement” does not require a handwritten signature, enrolment in a loyalty programme, without more, cannot constitute valid consent to non‑cash reimbursement. Enrolment merely indicates a general intention to participate in the programme, not an express, definitive and unequivocal acceptance of voucher reimbursement. Whether informed consent was obtained remains a matter for national courts to determine, based on the circumstances of each case.
What counts as a reservation? CJEU confirms boarding passes meet Article 2(g) EU261 requirement
EU261 applies where passengers hold a confirmed reservation and present themselves for check‑in. While “reservation” includes “other proof” accepted by the carrier, the regulation does not define what such proof might be. In Cymdek (C-20/24), the claimants' charter flight was subject to a 22‑hour delay. In bringing their claim, the passengers who travelled as part of a package holiday, produced their boarding passes because they did not hold flight tickets. The carrier disputed their standing to bring a compensation claim.
The CJEU held that a boarding pass may constitute “other proof” of a confirmed reservation unless the airline can show otherwise. A boarding pass evidences the acceptance and registration of the booking and need not contain all information typically found on a ticket. This interpretation aligns with the overarching objective of EU261 to ensure a high level of passenger protection.
Preferential fares and passenger rights: Article 3(3) EU261
The airline in Cymdek (C‑20/24) further argued that EU261 should not apply because the passengers travelled on preferential terms financed by a third party. Article 3(3) excludes passengers travelling free of charge or at reduced fares unavailable to the public.
The court reaffirmed that exceptions to passenger rights must be interpreted strictly. Article 3(3) applies only where the carrier grants a free or reduced fare. Further, the travaux préparatoires of the regulation confirm the legislature’s intention that passengers on package tours should not be excluded from EU261’s protections.
Clarifying when lightning strikes relieve airlines of EU261 liability
Lightning strikes aircraft far more frequently than public perception suggests; each in‑service aircraft is struck approximately once per year. While damage is uncommon, mandatory post‑strike inspections may disrupt operations.
Article 5(3) releases carriers from compensation obligations where delays result from extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. The burden rests on the carrier. Recital 14 to the regulation provides in express terms that "meteorological conditions incompatible with the operation of the flight concerned" may constitute exceptional circumstances."
In its October 2025 judgment (AirHelp Germany GmbH v Austrian Airlines AG Case C‑399/24), the CJEU held that a lightning strike affecting a preceding flight resulting in mandatory safety inspections and causing delay to a claimant passenger's flight, constitutes an extraordinary circumstance. Such events meet established criteria: they arise from meteorological conditions incompatible with flight safety, fall outside the carrier’s control, and are not inherent in normal operations. The CJEU recognised the paramount importance of mandatory safety inspections, noting that passenger safety - enshrined in the regulation’s preamble - takes precedence over punctuality considerations.
To be relieved of obligation to pay compensation the carrier must in addition demonstrate that it took all reasonable measures to avoid delay. The standard is set high: consistent with earlier judgments, the court emphasised that airlines must take all feasible steps within their technical and administrative capabilities. However, carriers are not required to make “intolerable sacrifices" in the light of" the capacities of its undertaking at the relevant time". Earlier decisions have guided that this "sacrifice test" does not set a universal standard, but is a test, relative to the airline concerned.
Calculating delay following rescheduling
In Corendon Airlines Turistik Hava Tasimacilik AS v Myflyright GmbH (C‑558/24) the issue before the court concerned the calculation of delay where the airline issues a revised booking confirmation shortly before departure. In Corendon, the carrier pushed back scheduled departure and arrival times by one hour, the day before the flight. A further delay occurred, resulting in an arrival less than three hours after the revised time, but more than three hours after the original time. Given that entitlement to flight delay compensation incepted at 3 hours, the point was fundamental to the passenger's claim.
In judgment of the Court of 30 October 2025, the CJEU held that the original scheduled arrival time governs the assessment of delay for the purposes of Articles 5(1)(c) and 7(1). This interpretation serves the regulation’s goal of maintaining a high level of passenger protection.
Commentary
Regulation EU261 has given rise to a now‑mature legal‑services ecosystem, comprising both long‑established claimant firms and fast‑growing legal‑tech entrants. It is also a highly technology‑driven market in which AI tools are playing an increasingly prominent role. Estimates indicate that between 2.5 and 3.5 million EU261 claims are filed with European airlines each year, resulting in very substantial compensation outflows. Although consumer protection is the core purpose of the regulation, a significant share of compensation ends up with claim‑handling companies rather than passengers themselves. Most operate on a no‑win, no‑fee or commission‑based model, with standard fees typically ranging from 20% to 35% of recovered sums, often accompanied by an additional legal‑action surcharge of 10% to 15%.
Where cases are referred to the CJEU, proceedings can take years for preliminary rulings to be delivered - reflecting both the complexity of EU261 and the inherent delays in the preliminary‑reference procedure. For example, in the AirHelp (C-399/24) case, the underlying claim related to a March 2022 flight; the reference was made in 2024, and the Third Chamber delivered its judgment only in October 2025.
Much like the UK’s patch‑repaired road network, EU261 has been maintained through incremental judicial clarification rather than comprehensive legislative reform. Successive CJEU judgments - together with Commission guidelines issued in 2016 and again in 2024 - have effectively served as piecemeal repairs.
Earlier reform efforts, including a 2013 package, stalled. In June 2025, the Council sought to revive the process, tabling proposals aimed at rebalancing the Regulation and reducing burdens on airlines. These included raising delay thresholds, lowering compensation ceilings, and expanding the scope of the “extraordinary circumstances” defence. However, the Council and Parliament remain deeply divided: in January 2026, the European Parliament voted overwhelmingly to strengthen existing passenger rights (632 votes to 15, with 9 abstentions). As a result, EU261 reform is now on the brink of entering conciliation, in an attempt to secure a jointly agreed text.
If Parliament’s position prevails, claim volumes are likely to remain significant. If instead the Council succeeds in raising delay period thresholds, the overall addressable volume could fall sharply - though the value and complexity of individual disputes may increase correspondingly.
Conclusion
At twenty‑one years old, EU261 remains a cornerstone of European consumer protection in aviation, but it is also a framework showing clear signs of strain. The CJEU has spent two decades supplying the interpretative scaffolding that keeps the Regulation coherent, yet persistent tensions between robust passenger rights and the operational realities faced by airlines have now surfaced at the political level. Those tensions are playing out visibly in the divergent reform agendas of the Council and Parliament.
Importantly, none of the EU institutions speak in terms of repealing EU261 or replacing it with a “Regulation 261 II”. The language is consistently one of modernisation and updating, not wholesale reconstruction. This is unsurprising: replacing the regulation would risk destabilising an extensive body of jurisprudence developed by the CJEU, and there is a clear political appetite for continuity rather than a legislative reset.
In that sense, EU261 - now entering adulthood - is heading for a makeover rather than reinvention. Whether this makeover ultimately amounts to a light refresh or major reconstructive surgery will depend on the outcome of the ongoing negotiations between the Parliament and the Council. For now, the shape of the regulation’s next chapter remains very much in the balance.
[1] 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, entered into force on 17 February 2005.
[2] The preliminary reference procedure (also called preliminary ruling procedure) is the mechanism in Article 267 TFEU that allows - and in some cases requires - national courts of EU Member States to ask the Court of Justice of the European Union (CJEU) to interpret EU law or to rule on the validity of an EU act.
[3] The Air Passenger Rights and Air Travel Organiser’s Licensing (Amendment) (EU Exit) Regulations 2019.
