Strikes and flight compensation: when can you claim?

When a flight is cancelled, and when it arrives at least three hours late at the final destination, EU Regulation 261/2004 gives a right to financial compensation. But there are exceptions. One concerns when you were told about a cancellation: if you were told at least two weeks before departure, no compensation is due, whoever was striking. If you were told later, no compensation is due if the airline offered you re-routing close to your original times, with notice of between two weeks and seven days, departing no more than two hours earlier and arriving less than four hours later; with shorter notice, departing no more than one hour earlier and arriving less than two hours later (Article 5(1)(c)). Another concerns the cause: under Article 5(3) the airline avoids paying if it can prove that the disruption was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The Court of Justice of the EU applies two tests, and both must be met: the event must fall outside the airline's normal activity, and it must fall outside the airline's actual control. The assessment is made case by case.

A strike among the airline's own employees is, according to the Court, an internal event. Disputes over pay and working conditions are part of everyday business life and lie within what the airline can manage and influence. A strike by air traffic controllers or airport staff, by contrast, is outside the airline's control. The Court has held that strikes carried out by air traffic controllers or by staff employed at an airport may constitute extraordinary circumstances. There is one qualification, however: where the staff's strike originates from demands which only the public authorities can satisfy, even an internal strike may constitute an extraordinary circumstance according to the Court. The internal-or-external dividing line therefore often decides your right to compensation, though not always on its own.

The question was settled by the Grand Chamber of the Court of Justice of the EU on 23 March 2021 in Case C‑28/20, Airhelp v SAS. The background was the SAS pilots' strike in spring 2019. The pilots' unions in Denmark, Sweden and Norway called their members out on strike after taking the view that collective-bargaining negotiations had stalled, and the strike ran from 26 April to 2 May 2019. A passenger whose Malmö–Stockholm flight was cancelled on 29 April assigned his compensation claim to Airhelp, which brought proceedings before Attunda District Court. That court referred the question to the Court of Justice for a preliminary ruling.

The Court's answer: a strike begun at the call of a trade union representing the airline's own staff, which follows national rules on matters such as notice, which is intended to get the staff's demands met, and which is carried out by staff needed to operate the flight, is not an extraordinary circumstance within the meaning of Article 5(3).

On the Court's interpretation, SAS therefore could not use the strike as a shield against the compensation claims. The judgment applies across the whole EU and governs how similar strikes are assessed today: a lawfully notified strike within the airline normally works in the passenger's favour, not against them.