If pilots go on strike, this does not necessarily have to be a reason why airlines have to pay compensation payments to passengers under EU Regulation 261/2004. The Advocate General at the European Court of Justice takes this legal view in an opinion.

This comes as a surprise because the ECJ has so far regarded strikes as a business risk and has therefore not classified them as “exceptional circumstances”. The latter means that, despite cancellations and / or delays, passengers are not entitled to payment of the compensation under the Air Passenger Rights Ordinance.

In his opinion, the EU Advocate General writes, among other things, that this exemption can occur if the carrier has taken “all reasonable measures” that would have “prevented the flight from being canceled or delayed”. The nature of the strike is also important, because the lawyer is of the opinion that if it is not due to decisions by the company, but to mere demands of the employees, then it would be a so-called "extraordinary circumstance".

Three-digit million amount is at stake for SAS

A passenger who wanted to fly from Malmö to Stockholm has brought an action before the European Court of Justice. That day, SAS pilots went on strike in Norway, Sweden and Denmark. Around 400.000 travelers were affected. With reference to the strike, the airline refuses to pay the claim in the amount of 250 euros. However, there is likely to be a lot more behind this, because if the plaintiff wins the case, it is to be expected that significantly more passengers - possibly with the support of service providers - could claim their claims. Thus, a three-digit million amount is at stake for SAS. Since the incident occurred in April 2019, the statute of limitations has not yet occurred.

The opinion of the Advocate General does not yet constitute a decision by the European Court of Justice. It often follows the recommendations, but in the recent past the ECJ has often ruled differently. A prominent example of this is the German car toll, in which the Advocate General argued that, in his opinion, it is legally compliant, but that the highest judges disagreed and judged accordingly. This broke into the German Transport Minister Andreas Scheuer (CSU) a decent disgrace.