Do strikes constitute extraordinary circumstances?

The strikes in the aviation sector for the passing weeks have resulted in a massive amount of delays and cancellations of scheduled departures, and the airlines have suffered huge losses. This raises a lot of questions relating to the EU-Regulation 261, including whether the passengers are entitled to compensation when labour disputes cause their flights to be cancelled or delayed. The views differ in the media and between different authorities – here we provide our evaluation of these cases.

In general, passengers are entitled to compensation if the flight is cancelled or delayed by three hours or more. The airline is only exempt from liability if the airline proves that the delay / cancellation was caused by extraordinary circumstances (EOC) and that the circumstances could not have been avoided even if all reasonable measures had been taken.

The legal position in Denmark

The Court of Justice of the European Union (CJEU) has not yet decided whether labour disputes are qualified as EOC and thus the question must be handled based on national case law and the preamble of the regulation.

In Denmark, the Eastern High Court handed down a judgment regarding this matter a few years ago, in which the court ruled in favour of the airline. The court found that the labour dispute constituted an EOC and that the airline had done everything within their power to avoid the cancellation; e.g. by trying to lease a substituting aircraft. However, the court stressed that this depends on an individual assessment in each case.

Thus, the legal position in Denmark is that labour disputes may constitute an EOC – especially if the strike contravenes with the collective agreement. But even if the strike has been announced according to the agreement, it may still be considered an EOC. This was what applied in the above-mentioned case – and even though the labour dispute was commenced by the airline (lockout of employees, not a strike), it was considered an EOC. With regards to this judgment, EOC seems to have a wide scope in relation to labour disputes. This is supported by the fact that strikes are mentioned in the preamble to the regulation as a possible EOC.

However, even if the strike is considered an EOC, airlines should keep in mind that it is a condition for compensation exemption that all reasonable measures have been taken to avoid the cancellation / delay, e.g. by trying to acquire crew from other sources or to lease aircrafts including crew from a subcontractor.

In summary

Claims for compensation originating from delays or cancellations caused by labour disputes should be evaluated thoroughly. In our opinion, strikes probably constitute an EOC under Danish law, and if the airline has taken all reasonable measures to avoid the delay / cancellation, our general advice would be to reject claims for compensation. However, the right to compensation is according to case law dependent on an individual assessment of each case and such evaluation must therefore always be made.