In his opinion, delivered on Tuesday 16 March (Case C-28/20), the Advocate General Priit Pikamäe said that, in principle, a strike organised by pilots’ unions constitutes an ‘extraordinary circumstance’ that can release an airline from its obligation to compensate passengers for flight delays or cancellations.
SAS is refusing to pay compensation to an air passenger whose flight from Malmö to Stockholm on 29 April 2019 was cancelled because of a strike by SAS pilots in Norway, Sweden and Denmark that lasted from 26 April to 2 May 2019.
Negotiations on a new collective agreement had been ongoing between management and the pilots’ unions since March 2019. The strike led SAS to cancel 4,000 flights, affecting 380,000 passengers. According to the company, the total cost of compensation would be €117 million.
The Court of Justice of the European Union was asked by the District Court in Attunda, Sweden, to interpret the regulation (261/2004) on compensation and assistance to air passengers.
In his opinion, the Advocate General states that a strike called by a trade union while exercising the right to strike in order to articulate demands relating to improvements to working conditions, if called in response to workers’ demands, constitutes an ‘extraordinary circumstance’ that exempts the airline company.
Pikamäe stated that the strike that affected SAS fulfils the two criteria established by the Court for classification as an extraordinary circumstance: - it was not inherent in the normal exercise of the airline’s business activity, as it was decided by the employee unions as part of their independent collective bargaining; - it was beyond the company’s effective control.
SAS cannot therefore be held exclusively liable for the consequences of the collective actions of its employees, according to the Advocate General. Otherwise, there is a risk that the right to compensation for air passengers could be used by workers’ organisations for their own ends.
The Advocate General also noted that, in order to be exempted from the obligation to compensate passengers, an airline must prove that it took all reasonable measures to avoid the cancellation or long delay of a flight.
The company must therefore explore all legal options to defend its interests, including asking the competent courts to establish that collective action is illegal. The company must also allow sufficient time for contingencies, must take into account advance notice of the strike called by the union, organise its material and human resources to ensure the continuity of its operations and facilitate access to flights on other airlines.
It should be noted that Pikamäe distinguishes the present case from the Krüsemann judgment of April 2018 (Case C-195/17), where the Court ruled that a ‘wildcat’ strike, which was organised by the employees themselves in response to an airline’s surprise announcement that it was restructuring, did not constitute an ‘extraordinary circumstance’ within the meaning of the regulation (see EUROPE 12003/31).
See the conclusions (in French): http://bit.ly/3bNFO0p (Original version in French by Mathieu Bion)