On 23 March 2021, the Court of Justice handed down its judgment in Case C-28/20, Airhelp Ltd v Scandinavian Airlines System Denmark – Norway – Sweden, on the interpretation of Article 5(3) of Regulation (EC) No 261/2004. The request has been made in proceedings between Airhelp Ltd (“Airhelp”) and Scandinavian Airlines System Denmark – Norway – Sweden (“SAS”) concerning the latter’s refusal to compensate S., whose rights are now owned by Airhelp, for the cancellation of his flight.

In the summer of 2018, the workers’ organisations representing SAS pilots in Denmark, Sweden and Norway decided to terminate the collective agreement concluded with their employer, and started the related negotiations in March 2019. Since the pilots’ trade unions took the view that those negotiations had failed or had not progressed sufficiently, they called on their members to go on strike between 26 April and 2 May 2019. Consequently, the internal SAS flight from Malmö to Stockholm on which S. had booked a seat, scheduled for 29 April 2019, was cancelled on the same day.

S. assigned his rights vis-à-vis SAS relating to his claim for compensation for the cancellation of his flight to Airhelp, which brought proceedings before the Attunda tingsrätt (Attunda District Court, the “referring court”) seeking an order against SAS to pay the compensation provided by the combined provisions of Articles 5(1)(c) and 7(1)(a) of Regulation No 261/2004. In the light of the need to interpret the relevant European legislation, therefore, the referring court decided to stay the proceedings and to ask to the Court of Justice whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that strike action called by a trade union representing the staff of an air carrier in compliance with the conditions laid down by national legislation, in particular the applicable notice period, which is intended to assert the demands of that carrier’s workers and is participated in by one or more categories of staff whose presence is necessary to operate a flight constitutes an “extraordinary circumstance” within the meaning of that provision.

According to the Court, despite embodying a moment of conflict in relations between the workers and the employer, whose activity it is intended to paralyse, a strike 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 employerhas the means to prepare for it and mitigate its consequences as appropriate, thereby retaining a certain control over events. Consequently, in order to ensure the effectiveness of the obligation laid down in Article 7(1) of Regulation No 261/2004 to pay compensation, 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.

Marco Stillo