sinus

My AF flight has been canceled due to staff unions strike. I was rebooked for another airlines but still I am entitled for 200€ compensation (FDF-ORY flight, 50% of 400€ as the arrival time of the alternative flight to final destination did not exceed the initial scheduled arrival time by 3 hours).

I have submitted a claim and hoped this will be a quick deal but they have denied to pay. They replied that "Per our records, I note that aforementioned flight was disrupted due to Air France crew strike. This is a situation where the German & Austrian courts have previously ruled that there is no entitlement to compensation.".

I have replied and quoted the recent C-195/17 judgement of EU Court of Justice (Helga Krüsemann and Others v TUIfly) which states that airline staff stike is not an extraordinary circumstance and still awaiting reply.

Seems they feel no disgrace and I will need to claim with DGAC which I really hate because as no-French speaking person it is extremely hard to deal with them.

LondonElite

I don't think you will win this one. The recent judgement concentrates only on 'wildcat' strikes, which I don't believe this was.

sinus

The judgement also says that airline has control over their staff so they are responsible for them not coming to work. Strike was announced earlier and the airline had time to negotiate with staff and fulfil their claims.

LondonElite

You may have to test this yourself. I don't believe the judgement aligns with your argument, but I've only skimmed it, rather than read all of it. You can see the opinion here:

CURIA - Documents

NickB

If a wildcat strike is not an extraordinary circumstance, I would have thought that a fortiori a planned and organised one is even less of an extraordinary circumstance.

LondonElite

And I would agree with you, except that was not what the ECJ was asked to give an opinion on.

rosensfole

I'm not sure I understand why some cancellations due to strike pay out and others don't.

I applied for and got EUR 800 plus unrecoverable accommodation costs of another 100. All agreed on the same day I applied.

NickB

But read the reasoning of the Court (in particular at paragraphs 39 to 43. The "wildcat" character of the strike was not relevant. What was relevant was that the strike was about an issue that is part of the normal process of running the business and could, as a matter of course, employers may give rise to disagreements or conflicts with employees.

I struggle to see how, in the light of that judgment, a strike over wages could possibly be regarded as constituting an extraordinary circumstance. To paraphrase the court, the determination of rates of pay by undertakings are part of the normal management of those entities. Thus, air carriers, may, as a matter of course, when carrying out their activity, face disagreements or conflicts with all or part of their members of staff. Therefore, 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.

Paragraph 46 is also significant: the court says "That finding is not called into question by the fact that the social movement should be regarded as a ‘wildcat strike’ within the meaning of the applicable German social legislation, as it was not officially initiated by a trade union." What the Court is telling us here is that even if it is a wildcat strike, it makes no difference. This imo implicitly makes it clear that its conclusion would a fortiori have been the same if the strike had been an official one.

FBplatinum

Regulation 261/2004 clearly define compensation because a strike did not apply.

• If the cancelation was due to extraordinary circumstances that could not be avoided. For example: bad weather conditions, political instability, strike, security concerns on the ground and/or in flight

https://www.airfrance.ca/CA/en/commo...emnisation.htm

Sorry.

I am in a similar problem, but compensation apply because I have be downgrade (strike exemption did not apply in this case).

LondonElite

OP is referring to the very recent ECJ opinion on strikes, however.

brunos

That interpretation makes sense.
On the other hand, the C-195/17 linked above seems to be of a different opinion.
In 3.56, it reiterates that airline strikes are extraordinary circumstances which could not have been avoided:
"56. On the other hand, recital 14 of Regulation No 261/2004 states that, 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."

The ruling is specifically devoted to a wild-cat strike by employees under the guise of sick-leave. It is an extraordinary circumstance. My reading is that if the number is small, the extraordinary circumstance could have been avoided by the airline. If the number of absentees is high, it could not have been avoided by the airline.The ruling lets the courts interpret what is a high rate of absentees.

In the case of a legal strike, there is little doubt that the airline cannot avoid the consequences of this extraordinary circumstance. After careful reading (I am not a lawyer), I cannot see how this ruling could be used for a legal strike. It even reiterates in 3.56 that strikes are extraordinary circumstances thta cannot be avoided even if all reasonable measures had been take.

IMO Air France has been very generous in providing compensation, but it seems to me to be more a commercial gesture than required by EC261/2004.

NickB

I am afraid that you are completely misreading the case and confusing the Opinion of the Advocate-General with the judgment from the Court. What you quote from is the Opinion of the Advocate-General. The Advocate-General was indeed of the view that a wildcat strike would normally be an extraordinary circumstance.

The Court, however, did not follow its Advocate-General. It ruled on the contrary that a strike in the circumstances of the case, even if it is a wildcat strike, would not constitute an extraordinary circumstance. I would invite you to read the judgment of the Court rather than the Opinion of its Advocate-General and in particular the passages I referenced in my earlier post (viz. paragraphs 39 and following).

Having read it again, there is in fact an even more explicit statement in paragraph 47, which expressly state that distinguishing between official strikes and wildcat strikes would undermine the objectives of Reg 261/2004. It seems to me that this settles that question rather roundly.

NickB

Just because the recital mentions strikes, it does not follow that all strikes constitute extraordinary circumstances. Strikes by third parties will normally be. However, the recent judgment in the TUIFly case that we discussed in earlier posts confirms something that I had long been arguing, namely that this would not necessarily be the case of strikes by the air carrier's own staff. I would go as far as to say that, following this judgment, strikes by the carrier's own staff will as a rule not constitute extraordinary circumstances and it will take an unusual set of circumstances for such a strike to constitute an extraordinary circumstance. It is conceivable that "political" strikes not directed at the carrier itself but the government, solidarity strikes, etc... might perhaps constitute extraordinary circumstances (and even that is not 100% sure) but strikes resulting from disputes between the carrier and its staff on, inter alia, employment conditions would not be extraordinary circumstances.

brunos

Indeed NickB, I was reading from the link provided by LondonElite and did not realize that it was only the opinion of the Advocate General not the ECJ preliminary ruling itself.
As I stated in my opening sentence, I thought that your opinion made sense. And it clearly makes a lot of sense after reading the ruling.

That being said, I would not go as far as saying for sure that all strikes by airline staff are deemed not extraordinary circumstances by the ECJ 17 April 2018 ruling. They state:
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 paragraphs 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.

The question for the AF strike is whether a strike for a simple pay raise would fall under this ruling.. 41. would suggest it does, but I guess that the question can be argued in court.

ANyway, thanks for providing a detailed argument and pointing out the relevance of this ruling.

NickB

No, clearly the Court was careful not to say that. What it did say, however, is that strikes by the staff of an airline relating to an issue that can arise as a matter of course in the normal running of the business of the carrier does not constitute an extraordinary circumstance and that decisions relating to the restructuring and the reorganisation of the airline must be considered as issues that arise in the normal running of the business. If that is so, then it seems to me difficult to argue that a strike over pay is an extraordinary circumstance. If decisions relating to the restructuring of a business are regarded as ordinary issues arising in the normal running of the business, then this is a fortiori the case of decisions over pay: a restructuring of the business is something that may or may not happen. OTOH, decisions over pay are unavoidable: you cannot run a business without making a decision over what you are going to pay your employees. If decisions over restructuring are inherent to the activity of the carrier, then decisions over pay are even more inherent to that activity since there simply cannot be any running of the business without such decisions being taken.

Now, it is always possible that a later case could take a different line and overrule an earlier judgment, especially as this is a judgment from the 3rd chamber and therefore not endowed with quite the same level of authority as a full court judgment might have. Nonetheless, in the current state of law and until there is a change, I struggle to see how one could reasonably draw any conclusion from this judgment other than that strikes by the staff of an airline over pay (or indeed over any other issue ordinarily arising in the normal course of the business) do not constitute extraordinary circumstances.