Air transport strikes: extraordinary circumstances?

Summer is nearly here and with it the desired vacations. With that in mind, we, AIYON Abogados, consider that it is the right time to bring up one of the common fears of tourists and travelers: Will I be affected by pilot, air traffic controller or airport staff strike?

Without undermining the concept of strike as a response mechanism for workers to claim and protect their legitimate rights, the fact is that the disruptions resulting from a strike are more than significant: delays, cancellations, and multitudes of angry passengers. Luckily for the latter, in the light of the European Regulation nº 261/2004 and from the interpretations by the various Courts engaged in its development, it will be difficult for the air carriers to allege the existence of an “extraordinary circumstance” in order to avoid the payment of the corresponding compensations in case of a strike, which the affected passengers are entitled to by law.  This will apply only in case we find ourselves facing very specific circumstances such as “unpredictable and illegal strikes.”

Having said that, it should be pointed out that the European Union Court of Justice (EUCJ)) stated in its recent Judgment of April 17th 2018 that the absence from work of a considerable part of the staff of an air carrier, absence arising from a spontaneous initiative directly promoted by the staff of the carrier, cannot be classified as an “extraordinary circumstance” with the purpose of denying the affected passengers their right for compensation as determined by law. This is undoubtedly good news for the users.  However, we understand that it cannot be assumed that unannounced strikes, also called “unofficial strikes” should be equated with the so-called “official strikes” or those that are announced and force the air carrier to take pertinent actions in order to protect passengers’ rights and prevent claims. This is particularly so because the aforementioned Judgment of the EUCJ makes clear that in the case of reference the unofficial work stoppage arouse from a surprising announcement of reorganization previously made by the company. Therefore, it can be inferred that the reason why this case cannot be equated with an “extraordinary circumstance” is not so much whether the strike itself was illegal or unofficial but the opportunity the claimed airline had, and did not take advantage of, to prevent the situation when making the announcement that directly affected its staff.

To sum up, we consider that in case of being affected by delays or cancellations as a consequence of air transport strikes and the subsequent denial of passengers’ compensation grounded in the existence of an alleged “extraordinary circumstance”, it has to be checked whether the airline was or should have been aware of the strike and could not act accordingly because it was beyond their control. Otherwise, this reason for denial of compensation would not succeed and the passengers could assert their legitimate rights.