Level staff on strike? How do you know if your flight is covered by European regulations?
In this period of major social unrest, a CJEU ruling on compensation for flight delays and cancellations is getting our attention.
In this judgment of April 17, 2018 (CJEU, April 17, 2018, aff. C-195/17), it was a question of the consequences of the strike of the flight crew of the Spanish airline Level on the compensation of passengers who suffered flight delays and cancellations.
A few years ago, the management of this airline company announced to its staff, by surprise, a plan to restructure the company. This was followed by a wildcat strike by seafarers, the majority of whom were on sick leave.
Indeed, between October 1 and 10, 2016, the rate of absenteeism due to illness, usually in the order of 10%, reached up to 89% in the case of cabin crew and up to 62% for cabin crew.
As a result of this strike movement, many Level flights had therefore been canceled or delayed on arrival by three hours or more.
In this context, some passengers asked the company to be compensated.
The Spanish carrier had refused compensation to passengers who suffered these delays or cancellations by availing themselves of this crippling strike, believing that these were extraordinary circumstances allowing the airline to free itself from its obligation to compensate.
The compensation scheme: How does it work?
According to Regulation (EC) 261/2004, air passengers can claim a lump sum compensation ranging from € 250 to € 600 per person in the case:
– A flight cancellation,
– A delay (European regulations consider a flight late from 2 hours or more for flights up to 1500 km, 3 hours or more for flights in the European Union over 1500 km and for other flights between 1500 km and 3500 km, 4 hours or more for other flights),
– Overbooking / denied boarding.
The amount of compensation is determined by the distance of the flight only.
Indeed, in accordance with the provisions of regulation (EC) n ° 261/2004: Passengers receive compensation the amount of which is fixed at:
– 250 euros for all flights of 1500 kilometers or less;
– 400 euros for all intra-Community flights over 1,500 kilometers and for all other flights from 1,500 to 3,500 kilometers;
– 600 euros for all flights which do not fall under points a) and b). ”
Regulation 261/2004 on the right of air passengers is applicable: for all flights departing from a European airport, as well as scheduled connections to the European Union, if the airline is European such as Level
In which case is the carrier exempt from paying compensation to the victims?
The carrier is not obliged to compensate a passenger if he is able to prove that the cancellation is due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Three proofs must therefore be brought forward: the existence of the said circumstances, their connection with the cancellation, the impossibility of avoiding them despite taking all reasonable measures.
In the Level company case, the latter company had used force majeure relating to the wildcat strike by staff to oppose passenger compensation.
Is the PNC strike considered as a case of exceptional circumstances?
The Court replied that the spontaneous absence of a significant part of the cabin crew which originated in the announcement of a restructuring, “following a call relayed not by the workers’ representatives of the company, but spontaneously by the workers themselves, who placed themselves on sick leave, does not fall within the concept of extraordinary circumstances, within the meaning of this provision. The Court considers that if, according to recital 14 of the regulation, “such circumstances may arise, in particular, in the event of strikes affecting the operations of an operating air carrier”, it has already stated that the circumstances referred to to this recital are not necessarily and automatically causes of exemption from the obligation of compensation.
Clearly, the strike in question was a risk linked to the announcement of restructuring and therefore inherent in the activity of the carrier and therefore the wildcat strike in question in this case cannot be considered to be beyond the effective control of Level.
Consequently, it does not constitute force majeure allowing the carrier to dispense with compensation.
More generally, the Court reiterates through this reply that strikes are not necessarily and automatically causes of exemption for companies.
Without a doubt, this decision marks a strengthening of the rights of air passengers.