Is EC 261/2004 Compensation Due for Air France Cancellations Caused by Strikes? A newly decided case found that cancellations due to employee-organized wildcat strikes were NOT an extraordinary circumstance, per the European Court of Justice (ECJ) ruling on April 17, 2018. Here's the background of the case that the ECJ decided, followed by analysis of whether it could be applied to cancellations caused by the current Air France strikes.
Context of the Cases Against TUIfly GmbH
TUIfly (now TUI fly Deutschland) is a German leisure airline owned by tourism company TUI Group. The plaintiffs in the case had TUIfly tickets on flights for October 3-8, 2016, but the flights were either delayed 3 or more hours or cancelled due to high absenteeism among TUIfly staff.
Although staff called in sick, the sheer numbers (34-89% absenteeism for cockpit staff and 24-69% absenteeism for cabin crew, compared to typical 10% absenteeism) indicates a wildcat strike following the airline's September 30, 2016 announcement of restructuring.
Some of the passengers on the delayed and cancelled flights attempted to claim EC 261/2004 compensation from TUIfly, which TUIfly denied, citing the high level of absenteeism as an “extraordinary circumstance.”
Airline Restructuring is Not an “Extraordinary Circumstance?”
The ECJ found from the submitted documents that the high staff absenteeism was clearly a response to TUIfly's surprise restructuring announcement.
The ECJ held that “the restructuring and reorganization of undertakings are part of the normal management” of airlines, and it followed that “as a matter of course, when carrying out of their activity [airlines] face disagreements or conflicts with all or part of their members of staff.”
As a result, the kind of wildcat strike, organized by TUIfly staff on their own, “cannot be regarded as beyond the actual control of the air carrier concerned.”
Are Delays Caused by Labor Union Organized Strikes an Extraordinary Circumstance?
Currently there are significant Air France strikes–are these no longer considered extraordinary circumstances, and thus eligible for compensation? The TUIfly case above was decided on its own merits, where the flight crew's absenteeism was in response to the airline's surprise announcement of a restructuring. Staff discontent and disagreement with management was a foreseeable consequence, hence the “wildcat strike” was not deemed to be an “extraordinary circumstance.”
The ECJ did not say what types of other labor union strikes would fall under the “extraordinary circumstance” exemption, but did reaffirm:
- Strikes that affect an airline's operation may sometimes be considered an “extraordinary circumstance”
- To be an “extraordinary circumstance” the event (in this case the strike) must 1) not be inherent in the normal exercise of the activity of the airline and 2) be beyond its actual control
The above would seem to indicate that at least some other airline strikes, including ones organized by airline labor unions, could also be considered not as an “extraordinary circumstance,” but as events that are inherent in the normal course of business.
Strike actions of other entities, such as airport workers or air traffic control, would still be considered “extraordinary circumstances” since these are beyond the airline's actual control.
Air France Strikes: EC 261/2004 Compensation?
Predictably, most airlines want to avoid paying EC 261/2004 compensation whenever possible. Air France's Compensation page notes that you are not entitled to compensation (bold font mine) “if the cancelation was due to extraordinary circumstances that could not be avoided. For example: bad weather conditions, political instability, strike, security concerns on the ground and/or in flight.”
This mirrors the language that is in the original EC 261/2004, but it does not mention the recent April 17 ruling or the emphasis that the ECJ has placed in recent years on narrowing the definition of “extraordinary circumstance.”
If you find your flights disrupted by the Air France strikes, I'd definitely file for EC 261/2004 compensation (which for non-EU flights of >3500 km is EUR 600 per flight) and try to pre-empt an automatic denial by emphasizing the recent ECJ decision in Helga Krüsemann and Others v TUIfly, and that in order to be deemed an “extraordinary circumstance,” the strike must not be inherent in the normal course of business of the airline, and be beyond its control. And since most airline crew strikes deal with issues that are both part of the normal course of running an airline (crew pay, labor conditions, benefits, etc.) and are within an airline's control, such airline crew strikes should NOT be considered an extraordinary circumstance.
Note that apart from the above EC 261/2004 compensation you may receive later, EU airlines (and all airlines departing the EU) must provide the following when a cancellation or delay forces an overnight stay:
- Meals and refreshments in proportion to waiting time
- Two phone calls or emails
- Hotel accommodation and transport between the airport and hotel, if a stay of one or more nights becomes necessary
Also, if you booked your trip with a Chase Sapphire Reserve card (or even just used it to pay taxes for an award ticket) you receive $500 in trip delay reimbursement if your flight is delayed by more than 6 hours or requires an overnight stay, for covered reasons that include labor strikes, equipment failure, inclement weather and hijacking. Note that prepaid expenses are not covered, only ones that you were forced to incur for lodging, meals, toiletries and medication (and not covered by the airline).
Let us know in the comments: have you prevailed in an EC 261/2004 compensation claim for a flight delay or cancellation caused by a labor strike?
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