European Court of Justice rules that union led strikes do not provide a Defence to flight compensation claims

The European Court of Justice has recently paved the way for tens of thousands more compensation claims to be made under EU regulation 261/2004.

In Case C-28/20, Airhelp Ltd v Scandinavian Airlines System the ECJ has ruled that airlines still have to compensate passengers whose flights are cancelled or delayed by more than 3 hours where the disruption was caused as a result of a union led workers strike.

In 2018, the workers organisations representing SAS pilots in Denmark, Sweden and Norway decided to terminate the collective agreement concluded with their employer, and started to renegotiate. Since the trade union took the view that those negotiations had failed or had not progressed sufficiently, they called on their members to go on strike resulting is mass disruption for the airline.

The airline defended the case on the basis that the events leading to the cancellation of the flight were an “extraordinary circumstance which no reasonable measures could have avoided”.

The ECJ rejected this categorisation. A strike, whose activity it is intended to paralyse, nevertheless remains one of the ways in which collective bargaining may manifest itself and, therefore, when limited to obtaining from an airline an increase in its pilots salary, a change in their work schedules and greater predictability as regards working hours, it constitutes an event that is inherent to the normal exercise of that airline’s activity, in particular where the strike is organised within the law. Furthermore, since the right to strike is guaranteed, for workers, by Article 28 of the Charter of Fundamental Rights, the fact that they invoke that right and consequently launch strike action must be regarded as foreseeable for any employer, in particular where notice of the strike is given, and so the employer has the means to prepare for it and mitigate its consequences as appropriate, thereby retaining a certain control over events.

As such a strike by the staff of an air carrier cannot be categorised as an “extraordinary circumstance” within the meaning of Article 5(3) of the regulation where that strike is connected to demands relating to the employment relationship between the carrier and its staff that are capable of being dealt with through management-labour dialogue within the undertaking.

The decision follows another well-known decision by the ECJ in the case of Kruseman v TUIfly, where the court similarly ruled that even a wild cat strike (where employees called in “sick” en-masse following a labour dispute) did not provide a Defence to a compensation claim.

It seems as if finally the question revolving around the obligations for airlines to pay compensation following strike action by airlines has been decided firmly in favour of consumers.


Free Eligibility Check

If your flight has been disrupted due to a delay or cancellation you may have the potential to make a claim under the EU Regulation 261/2004 for compensation.  This could be up to €600 per person.  Contact Hayward Baker on 01329 227 983 or complete our On-Line Form today to discuss the potential for a claim.

Have you had a flight that was disrupted?

You may be entitled to claim compensation.





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European Court of Justice rules that union led strikes do not provide a Defence to flight compensation claims
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