“Ryanair’s impression is that, given that it is a mature multinational company operating in 37 countries and had not been a unionised airline before December 2017, some unions were determined to announce their arrival by striking during 2018. This was especially true in certain countries (including Spain, Belgium, Germany and Portugal) where it is more common for unions to call strikes at the early stages of a negotiating process rather than as a last resort.”
“1. In case of cancellation of a flight, the passengers concerned shall: … (c) have the right to compensation by the operating air carrier in accordance with Article 7, unless: (i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or (ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival. … 3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.”
“(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general. (2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers. (3) While Council Regulation (EEC) No 295/91 of4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays. (4) The Community should therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market.”
“The Commission believes that, even amended, Regulation (EEC) No. 295/91 would still not protect passengers adequately when confronted by denied boarding or cancellation. The original and the amending regulation oblige air carriers and tour organisers … to compensate and assist passengers. They do not, however, dissuade them from excessive denial of boarding or cancellation, nor give incentives to balance the commercial advantages against the cost to passengers. Consequently, too many passengers would have continued to suffer from these practices.”
“As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.”
“as regards a technical problem resulting from an airport’s set of mobile boarding stairs colliding with an aircraft, it should be pointed out that such mobile stairs or gangways are indispensable to air passenger transport, enabling passengers to enter or leave the aircraft, and, accordingly, air carriers are regularly faced with situations arising from their use. Therefore, a collision between an aircraft and any such set of mobile boarding stairs must be regarded as an event inherent in the normal exercise of the activity of the air carrier. Furthermore, there is nothing to suggest that the damage suffered by the aircraft which was due to operate the flight at issue was caused by an act outside the category of normal airport services (such as an act of sabotage or terrorism) …. ”
“Such equipment [i.e. mobile boarding stairs] is indispensable to air passenger transport, enabling passengers to enter or leave the aircraft … and the use of such equipment ordinarily takes place in collaboration with the crew of the aircraft concerned. Such circumstances cannot therefore be regarded as not inherent in the normal exercise of the activity of the air carrier concerned or outside that carrier’s actual control.”
“This could become a critical question in many compensation claims and would potentially involve lengthy litigation with, no doubt, expert witnesses being called on each side. Alternatively, simply by raising the defence a carrier would be likely to discourage inconvenienced passengers from pursuing their claims. I doubt whether the draftsman would have intended the exception to have that effect.”
“An air carrier’s operation depends on two principal resources: its people and its aircraft. Wear and tear of the aircraft and its component parts is not extraordinary; the wear and tear on people, manifesting itself in occasional illness, should not be regarded as any different.”
“A final reason for concluding that precisely when, why or how the staff member in question fell ill is irrelevant to the proper operation of article 5 arises from the nature of the Regulation itself. The Regulation is concerned to provide a standardised, if modest, level of compensation to those who suffer the inconvenience of cancelled or delayed flights. The exception at article 5(3) has to be considered in that light. Most of these claims are assigned to the small claims track, and the vast bulk of them should be capable of being determined on the papers. In those circumstances, it is contrary to the scheme of the Regulation to allow the carrier to embark on a complex analysis of precisely when, why or how a staff member became ill so as to explain their absence and the subsequent cancellation of the flight.”
“In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. Accordingly, that collision must be classified as ‘extraordinary circumstances’ within the meaning of article 5(3) of Regulation No 261/2004.”
“must be interpreted as meaning that the spontaneous absence of a significant part of the flight crew staff (‘wildcat strikes’), such as that at issue in the disputes in the main proceedings, which stems from the surprise announcement by an operating air carrier of a restructuring of the undertaking, following a call echoed not by the staff representatives of the company but spontaneously by the workers themselves who placed themselves on sick leave, is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision.”
“38. In the present case, it is apparent from the file submitted to the court that the ‘wildcat strike’ among the staff of the air carrier concerned has its origins in the carrier’s surprise announcement of a corporate restructuring process. That announcement led, for a period of approximately one week, to a particularly high rate of flight staff absenteeism as a result of a call relayed not by staff representatives of the undertaking, but spontaneously by the workers themselves who placed themselves on sick leave. 39. Thus, it is not disputed that the ‘wildcat strike’ was triggered by the staff of TUIfly in order for it to set out its claims, in this case relating to the restructuring measures announced by the management of that air carrier. 40. As correctly noted by the European Commission in its written observations, the restructuring and reorganisation of undertakings are part of the normal management of those entities. 41. Thus, air carriers may, as a matter of course, when carrying out of their activity, face disagreements or conflicts with all or part of their members of staff. 42. Therefore, under the conditions referred to in paras 38 and 39 of this judgment, the risks arising from the social consequences that go with such measures must be regarded as inherent in the normal exercise of the activity of the air carrier concerned. 43. Furthermore, the ‘wildcat strike’ cannot be regarded as beyond the actual control of the air carrier concerned. 44. Apart from the fact that the ‘wildcat strike’ stems from a decision taken by the air carrier, it should be noted that, despite the high rate of absenteeism mentioned by the referring court, that ‘wildcat strike’ ceased following an agreement that it concluded with the staff representatives. 45. Therefore, such a strike cannot be classified as an ‘extraordinary circumstance’ within the meaning of article 5(3) of Regulation No 261/2004, releasing the operating air carrier from its obligation to pay compensation pursuant to article 5(1)(c) and to article 7(1) of that Regulation.”
“must be interpreted as meaning that strike action which is entered into upon a call by a trade union of the staff of an operating air carrier, in compliance with the conditions laid down by national legislation, in particular the notice period imposed by it, which is intended to assert the demands of that carrier’s workers and which is followed by a category of staff essential for operating a flight does not fall within the concept of an ‘extraordinary circumstance’ within the meaning of that provision”
“Despite embodying a moment of conflict in relations between the workers and the employer, whose activity it is intended to paralyse, a strike nevertheless remains one of the ways in which collective bargaining may manifest itself and, therefore, must be regarded as an event inherent in the normal exercise of the activity of the employer concerned, irrespective of the particular features of the labour market concerned or of the national legislation applicable as regards implementation of that fundamental right.”
“37. Accordingly, in order to ensure the effectiveness of the obligation laid down in article 7(1) of Regulation No 261/2004 to pay compensation, a strike by the staff of an operating air carrier cannot be categorised as an ‘extraordinary circumstance’ within the meaning of article 5(3) of the regulation where that strike is connected to demands relating to the employment relationship between the carrier and its staff that are capable of being dealt with through management-labour dialogue within the undertaking. That is precisely the situation in the case of pay negotiations. 38. Nor can that finding be called into question by the fact that the strikers’ demands might be unreasonable or disproportionate or by the strikers’ rejection of a proposal for settlement since, in any event, the determination of pay levels falls within the scope of the employment relationship between the employer and its workers.”
“The feature shared by all those events is that they result from the activity of the air carrier and from external circumstances which are more or less frequent in practice but which the air carrier does not control because they arise from a natural event or an act of a third party, such as another air carrier or a public or private operator interfering with flight or airport activity.”
“42. Thus, in stating, in recital (14) of Regulation No 261/2004, that extraordinary circumstances may, in particular, occur in the case of strikes that affect the operation of an operating air carrier, the EU legislature intended to refer to strikes that are external to the activity of the air carrier concerned. It follows that strike action taken by air traffic controllers or airport staff may in particular constitute an ‘extraordinary circumstance’ within the meaning of article 5(3) of that Regulation (see, to that effect, Finnair Oyj v Lassooy (Case C-22/11 )[2013] 1 CMLR 18 ). 43. Since such strike action does not moreover fall within the exercise of that carrier’s activity and is thus beyond its actual control, it constitutes an ‘extraordinary circumstance’ within the meaning of article 5(3) of Regulation No 261/2004. 44. On the other hand, a strike set in motion and observed by members of the relevant air transport undertaking’s own staff is an event ‘internal’ to that undertaking, including in the case of a strike set in motion upon a call by trade unions, since they are acting in the interest of that undertaking’s workers. 45. If, however, such a strike originates from demands which only the public authorities can satisfy and which, accordingly, are beyond the actual control of the air carrier concerned, it is capable of constituting an ‘extraordinary circumstance’ …. ”
“must be interpreted as meaning that strike action intended to assert workers’ demands with regard to salary and/or social benefits, which is entered into upon a call by a trade union of the staff of an operating air carrier in solidarity with strike action which was launched against the parent company of which that air carrier is a subsidiary, which is observed by a category of the staff of that subsidiary whose presence is necessary to operate a flight and which continues beyond the period originally announced by the trade union which called the strike, in spite of the fact that an agreement has been reached in the meantime with the parent company, is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision”
“22 Thus, a strike whose objective is limited to obtaining from an air transport undertaking an increase in the cabin crew’s salary constitutes an event that is inherent in the normal exercise of that undertaking’s activity, in particular where such a strike is organised within a legal framework (see, to that effect, judgment of23 March 2021 , Airhelp, C-28/20, EU:C:2021:226, paragraph 30). 23 Furthermore, in so far as both the social policy within a parent company and the group policy established by that company may have an impact on the social policy and strategy of the subsidiaries in that group, a strike set in motion by the staff of an operating air carrier in solidarity with the strike observed by the staff of the parent company of which that carrier is a subsidiary cannot be regarded as an event which is not inherent in the normal exercise of the latter’s activity. As the European Commission remarked in its written observations, it is neither out of the ordinary nor unforeseeable that labour disputes may extend to different parts of a group of undertakings during collective bargaining.”
“It does not follow that because one side walks out and negotiations break down and the union is the one who endorses the position and causes employees to walk out, that the strike is beyond an air carrier’s control; the strikes are nonetheless still part of the normal activities of a business which, ultimately, are resolved by agreement and therefore within the air carriers’ actual control.” “[N]egotiations between an employer and employees and their representatives, whether unionised or not”, the Judge said in paragraph 43, “are part of the normal activities of air carriers”
“ … It is a normal part of those negotiations for there to be ebb and flow, one or other or both sides starting with robust or extreme or even outrageous or unreasonable or impossible positions, some knowingly attainable, some knowingly unattainable, which ultimately result in resolution sometimes by compromise in the middle, sometimes in conceding one point as the price of succeeding on another point and any number of combinations in between. It is normal for such negotiations to break down and for one side to walk out. It is normal for both sides to deploy whatever tools are at their disposal, which include withdrawing labour, going on strike; or, for employers, threatening whole or partial closure or workforce reductions as the consequences of what is demanded. Ultimately, resolution is reached, so demonstrating that ultimately the carrier is in control as matters are compromised and negotiated settlement reached. The fact that control is temporarily lost, for example when all or part of the workforce, whether unionised or not, walks out, or goes on strike, or takes an outlandish position, does not mean that the carrier is not in ‘control’. It merely means that there has been a hitch in negotiations where one side has withdrawn. All of this is inherent or internal, part and parcel of a business or activities of this nature. It is not random or external to an air carrier, like a bird or a screw. ‘Control’, whether termed ‘actual control’ or otherwise, merely means those aspects which are within the four corners of the business, and not from outside of it, serving to identify the parameters of what is inherent in the carrier’s normal activities.”
“The presence of the union is … a red herring: they were acting on the authority of the employees, so the fact that a new ostensible external third party in the form of a union is involved or interposed does not make the negotiation any different from the normal activities of an air carrier negotiating terms and conditions with its employees.”
“It would seem a strange situation for the court to investigate whose fault it was for the breakdown of negotiations, which may be for any number of reasons, such as because [Ryanair] not being prepared to offer or agree to the union proposal, or the other way, for example where the union says ‘if you do not agree, we will walk out’. This is part and parcel of running a business and the risks inherent in that business, including negotiations with employees. The mere fact that there is a financial consequence on one side does not change this: it is simply an extra element of risk and something that is not secret as it is part of the Regulation.”