Tuesday, 14 May 2019

Strikes as extraordinary circumstances

To avoid paying compensation to passengers of cancelled flights pursuant to the Regulation 261/2004, airlines may try to claim that the cancellation resulted from extraordinary circumstances. Recital 14 enumerates strikes that affect the operation of an airline as an example of extraordinary circumstances. However, previous case law of the Court of Justice limited this exception to such strikes, which are not within the operating air carriers' control and do not consitute a part of their normal economic activity (see joined cases Krüsemann and our comment on them). Could a strike protesting the low wages paid by airlines to their employees be seen as remaining within the airline's control and falling under their normal economic activity? Ryanair seems to think so as they just paid out compensation to consumers that pursued their claims in German courts (see further Ryanair Recognizes Strikes As Reason For German Passenger Compensation). The article indicates that this may be a strategic decision from the airline to avoid a referral to the CJEU that would further specify the airlines' obligation in case of such strikes to pay compensation. This seems unlikely, as to date airlines seemed pretty keen to refer any cases, which could lead to divergent interpretations of their obligations towards passengers. What is more likely is that Ryanair did not have good arguments to present to support its claim that the strike resulted from an unreasonable position of trade unions and thus remained outside their control.