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Do airlines have to compensate passengers financially in case of a strike?

dinsdag 6 april 2021

The rights of air passengers in case of delay, cancellation or denied boarding are regulated by EU Regulation 261/2004. The Regulation entitles passengers in certain cases to standardized financial compensation of €250, €400 or €600 depending on the flight distance.

Passengers cannot claim such financial compensation if the cancellation or delay is caused by an 'extraordinary circumstance' which could not have been avoided even by taking all reasonable measures. As an example of an extraordinary circumstance, recital 15 of the preamble of the Regulation, explicitly mentions the case of strikes. But as it turns out, a strike is not always an extraordinary circumstance. As a result, in some cases passengers are still entitled to financial compensation in the event of a strike.

Judgment on strike in aviation: Airhelp Ltd vs. Scandinavian Airline System SAS

On March 23, 2021, the Court of Justice of the EU issued a judgment on this subject in the case of Airhelp Ltd vs. Scandinavian Airline System SAS (C-28/20). The case involved the following. The passenger's flight had been cancelled by the airline SAS due to a strike by its pilots. Airhelp, a claimagency that had taken over this passenger's rights, claimed compensation in proceedings before the Swedish court, arguing that the strike would not be an extraordinary circumstance. The strike of its own pilots would be inherent in the normal exercise of activity of an airline. The Swedish court referred the matter to the CJEU for a preliminary ruling.

The court considered therein that a strike organized by a trade union of airline employees, which is aimed in particular at increasing wages, does not fall within the concept of an "extraordinary circumstance" that can relieve the airline of its obligation to pay compensation for cancellation or long delay of the flights concerned. This is also the case where the strike is organized in compliance with the conditions set out in the national regulation.

Strike of own staff airline

The court views a strike with these characteristics as an event inherent in the normal exercise of the airline's activity as an employer. Measures relating to working conditions are part of the normal management of the airline. A strike is seen as a consequence thereof. The Court points out that the right to strike is a right guaranteed by the Charter of Fundamental Rights of the European Union and that it is foreseeable for any employer that employees may exercise this right. The Court also notes that, in principle, the employer has the means to prepare himself - upon announcement of the strike.

In short, according to the Court, a strike of the staff of an airline, which is related to the employment relationship between the airline and its staff that can be discussed in a dialogue between the social partners within the company, including wage negotiations, does not fall under the concept of "extraordinary circumstance" within the meaning of the Air Passenger Rights Regulation. In other words, a strike arising from a conflict over working conditions is not an extraordinary circumstance and passengers must be compensated in the event of such a strike of airline staff.

Strike by external parties or with an external solution

It is important to note that the court also emphasizes that events with an external origin that cannot be controlled by the airline can constitute an extraordinary circumstance, because it arises, for example, from a natural event or an act of a third party. This includes strikes by other airlines, airport staff or air traffic controllers. Furthermore, the court mentions that there can be an extraordinary circumstance if the strike stems from requirements that can only be met by the government. In that case, control over the resolution of the strike is beyond the airline's control and passengers are not entitled to compensation.

Passengers not always entitled to compensation under Reg. 261/2004 in case of strike

Whether the strike constitutes an extraordinary circumstance therefore depends on the circumstances and in particular the influence of the airline (internal or external cause / solution). A strike with an external cause is in principle an extraordinary circumstance as a result of which passengers are not entitled to compensation under Regulation 261/2004.

Lawyers specialized in aviation

LVH Advocaten assists airlines on a daily basis with advice and litigation on Regulation 261/2004 and other aviation related issues. If you have any questions regarding this article, please feel free to contact our aviation specialist Michelle Reevers.

Michelle Reevers

aviation, enterprise and business 

+31 (0)10 209 27 75
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