Airhelp/SAS ruling (C-28/20): pre-notified internal staff strikes
In Airhelp v Scandinavian Airlines System (SAS) (C-28/20, 23 March 2021, Grand Chamber), the Court of Justice held that a strike organised by a trade union of an airline's own staff, within a legal framework and aimed in particular at securing pay increases, is not an "extraordinary circumstance". The airline therefore cannot rely on it to avoid paying compensation. The ruling completes the earlier Krüsemann case law on strikes by an airline's own staff.
The facts
A flight from Malmö to Stockholm was cancelled on the day because SAS pilots in Denmark, Sweden and Norway were on strike. The unions had called the strike after taking the view that negotiations had failed or had not progressed enough. It lasted seven days and led SAS to cancel more than 4,000 flights. SAS argued that the strike was beyond its control and that four unions striking at the same time went beyond the normal exercise of its activity.
What the Court decided
The Court rejected that argument. A strike by the carrier's own staff, called by a union to obtain better pay, does not fall within the concept of an extraordinary circumstance in article 5(3) of the Regulation. Commentators summarise the reasoning as follows: collective bargaining and the industrial action that can accompany it are part of the ordinary management of an airline.
How it fits with Krüsemann
| Ruling | Type of strike | Result |
|---|---|---|
| Krüsemann (C-195/17, 2018) | Spontaneous strike by the carrier's own staff | Not an extraordinary circumstance |
| Airhelp v SAS (C-28/20, 2021) | Strike by the carrier's own staff, called by unions within a legal framework | Not an extraordinary circumstance |
| Strike by third parties (air traffic control, airport staff) | Outside the carrier's own workforce | May be extraordinary, depending on the facts; the airline must prove it took all reasonable measures (see Eglītis) |
What this means for your claim
- If your flight was cancelled or badly delayed because of a strike by the airline's own pilots or cabin crew, the airline cannot use the strike alone as a defence.
- The other conditions of the Regulation still apply: the flight must be covered, the delay or cancellation must meet the thresholds, and the 14-day notice rules for cancellations still count (see Krijgsman).
- If the airline blames a strike, check whose staff were striking: that is the first question.
Hub: EC 261 CJEU case law · Extraordinary circumstances
Sources
- Judgment of the Court (Grand Chamber), 23 March 2021, C-28/20 (EUR-Lex)
- CJEU press release no 44/21
- Regulation (EC) No 261/2004, article 5(3)