Industrial action has generally been considered to be ‘extraordinary circumstances’ and therefore defendable under EC Regulation 261/2004. This has meant that even where a passenger has (i) suffered a delay on arrival at their final destination of three hours or more or (ii) had their flight cancelled, carriers have been able to resist paying out compensation under EC Regulation 261. Whilst compensation has not been payable historically in these cases, passengers continued to have a right to care and assistance under Article 9, which includes the provision of meals and refreshments and where applicable accommodation.
However, on 17 April 2018, the ECJ ruled that sudden/unannounced airline strikes (wildcat strikes) do not fall within the scope of ‘extraordinary circumstances’. This comes following a series of claims which were brought against TUIfly initially in the local German courts. The claims were brought as a result of high levels of staff and pilot sickness which was believed to have arisen out an announcement that the carrier would be restructuring. In the first instance, TUIfly sought to defend these claims relying on the ‘extraordinary circumstances’ defence. However, the German courts referred this matter to the European Court of Justice, who rejected TUIfly’s defence.
Whilst Tuesday’s ruling brings another blow to the industry, it is worth noting that this matter only related to sudden and unplanned strikes (wildcat strikes). Therefore there currently remains an argument that planned industrial strikes remain within the scope of the ‘extraordinary circumstances’ defence. In true EC Regulation 261 style, only future case law will clarify this point.