Five judges in Luxembourg have ruled that delays caused by bird strikes – when birds fly into an aircraft and cause damage – count as an ‘extraordinary circumstance’ after going against the advice of the European Union’s Advocate General. The decision means passengers are not eligible for compensation under EU Regulation 261.

Law firm Bott & Co put the potential industry-wide claims total at £11 million a year, with individuals being able to claim up to €600 had the ruling gone in their favour.

It said it had “a couple of thousand passengers” itself waiting to lodge claims following an initial opinion by the Advocate General last July that compensation should be payable. Kevin Clarke, who heads the firm’s flight delay team, said the ruling from the highest court in Europe was highly unusual and added he had “no idea” what had prompted it.

“It has taken us completely by surprise,” he said. He explained that the test as to whether compensation was payable had been whether bird strikes were an inherent and normal activity for an airline.

“Planes are tested for it, so it has to be inherent. It might not be the airline’s fault, but the law says it is the airline’s responsibility. With the latest judgement, with no explanation or justification, the court has found that they are not.”

Airlines have been settling claims following the initial observations from the court, but Clarke said carriers could not get their money back as many will have agreed to settle out of court and had only 21 days to lodge appeals where cases had been heard by judges.

Neal Weston, head of policy and communications at Airlines UK, described the ruling as “logical and sensible”.

“Bird strikes – where they do occur – require mandatory safety checks which is generally what leads to delays in these circumstances,” he said.

“Whilst the original intention of the Regulation was to provide protection to passengers inconvenienced by delays and cancellations caused by airline actions, to have gone further by penalising carriers for carrying out checks that are required by law would have been disproportionate and unfair.”