Regulation (EC) 261/2004 and Internal Strikes Under Article 5.3: ‘It’s All About Control, Stupid’

Abstract

According to the preamble of the EU passenger rights regulation (EU Regulation 261/2004) strikes that affect the operation of an operating air carrier are explicitly provided as an example of extraordinary circumstances, exempting the air carrier from having to pay compensation to the passengers. Complex in this regard is how one should see strikes by airlines staff also named ‘internal strikes’. There are persons – often boosted by commercial claim companies – who advocate that due to the European Court of Justice (‘ECJ’) judgment of 17 April 2018, Helga Krüsemann and Others v. TUIFLY it has been clearly established that these internal strikes do not constitute an extraordinary circumstance and thus obliges the air carrier to pay compensation. The authors have a different view. With this contribution, they want to put internal strikes and the concept of extraordinary circumstances in the proper context. For this they are ‘filleting’ EU Regulation 261/2004, the Montreal Convention, relevant ECJ case law and European social principles pursuant to which they want to show the proper nuances as regards internal strikes and the extraordinary ordinary defence for the air carrier. All of which should lead to a rewording of article 5(3) of the EU regulation 261/2004. Something for the EU legislator to take into account, as part of the still pending revision of this regulation.