Opinion of the Advocate General — ECLI:EU:C:2021:203
Date: 2021-03-16
Language of the case: Swedish
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the arguments of the parties 
Airhelp 
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6. Airhelp has claimed that the referring court should order SAS to pay it a principal 
amount of EUR 250 and default interest ... from 10 September 2019 until the date 
of payment. 
7. In support of its action, Airhelp has argued, in essence, as follows. In so far as SS 
was informed of the cancellation less than seven days before the scheduled time of 
departure, and was not offered re-routing to allow him to depart no more than one 
hour before the scheduled time of departure and reach his final destination less 
than two hours after the scheduled time of arrival, he has, in accordance with the 
regulation, a right to compensation. 
SAS 
8. SAS has disputed Airhelp’s claims. In support of its opposition, SAS has argued, 
in essence, as follows. The pilots’ strike constitutes an extraordinary circumstance 
which could not have been avoided even if all reasonable measures had been 
taken and SAS is therefore not obliged to pay compensation by virtue of Articles 
5(3) and 7 of the regulation. 
9. SAS has substantiated its argument in the main proceedings as follows. 
10. One of the points of contention in the negotiations was the workers’ organisations’ 
demand for a wage increase of 13% over three years, which can be compared with 
the previous collective agreement entitling pilots to wage increases of 6.5% over 
three years. Another contentious point involved the pilots’ working hours. The 
workers’ organisations demanded, inter alia, greater predictability as regards 
working hours. [Or. 6] 
11. On 25 April 2019, the Svenska medlingsinstitutet (Swedish National Mediation 
Office) submitted a ‘request’ (proposal for settlement) to the parties in relation to 
the central collective agreement. The request contained, inter alia, provisions 
stipulating an annual pay increase of 2.3%. The mediator’s pay increase proposal 
lay within what is known as the band, that is to say, the percentage wage increase 
which the export industry agreed should apply to the Swedish labour market. The 
pilots’ trade union demanded a wage increase that was significantly above the 
band. The starting point, under the Swedish labour market model, is that the band 
should be normative for wage determination for the entire Swedish labour market. 
The purpose of this is to maintain Swedish competitiveness and to create stability 
in collective agreement negotiations. 
12. SAS acceded to the request while the workers’ organisations responded to it in the 
negative and, on 26 April 2019, the workers’ organisations initiated the industrial 
action of which notice was given. 
13. The dispute lasted until the evening of 2 May 2019, when a new three-year 
agreement was concluded. The new collective agreement covers a period of three 
years until 2022 and means, inter alia, that the pilots receive wage increases of 
AIRHELP 
 
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3.5% for 2019, 3% for 2020 and 4% for 2021. The total wage increase amounts to 
10.9% over three years. 
14. The examination of whether the pilots’ strike constitutes an extraordinary 
circumstance under Article 5(3) of the regulation must be based on whether the 
strike, by its nature or origin, is not inherent in the normal exercise of SAS’ 
activity and is beyond its actual control. 
15. SAS’ normal activity is the operation of aviation activities. A decision by four 
trade unions to hold a simultaneous strike is not part of SAS’s normal activities. 
Strikes in themselves are very uncommon in the Swedish labour market and 
strikes do not form part of the normal relationship between employer and 
employee or their respective industry organisations. The pilots’ strike was, 
moreover, one of the most comprehensive strikes in the aviation industry ever, 
involving practically every [Or. 7] SAS pilot. SAS was unable to organise its 
activity in such a way that the flights could be operated as planned. The pilots’ 
strike was therefore not inherent in the normal exercise of SAS’ activities. 
16. The fact that the pilots’ strike was lawful implies that SAS was not entitled to 
order the pilots to work. SAS accordingly could not take any measures to induce 
pilots to operate the flights. The pilots’ strike was therefore not within SAS’ actual 
control. 
17. The circumstances in which the European Court of Justice, in Krüsemann and 
Others (C-195/17), found that a wildcat strike was inherent in the normal exercise 
of the air carrier’s activity (see paragraph 49) are absent here. 
18. The pilots’ strike was not based on any measure taken by SAS that can be 
regarded as being part of SAS’ normal management. The strike was ultimately the 
consequence of the pilot associations’ having demanded specific working 
conditions and not accepting the mediator’s offer, which SAS, however, did. The 
pilots’ strike was therefore not based on any measure taken by SAS. 
19. The pilots’ strike was not a spontaneous reaction of the staff to a measure that was 
part of SAS’ normal management. On the contrary, the pilots’ strike was called by 
four pilots’ trade unions simultaneously and was therefore to a very large degree 
driven by the trade unions and workers’ representatives. 
20. Moreover, SAS was not able to avoid the compensation obligation by cancelling 
the flight once the strike started, since the flight must be cancelled at least two 
weeks before the planned departure in order for the compensation obligation laid 
down in the regulation to cease to apply (see Article 5(1)(c)(i)). Under Swedish 
law, however, a strike must be announced only one week in advance. 
21. The pilots’ strike that affected SAS and caused the flight to be cancelled 
constitutes an event which, by its nature and origin, is not inherent in the normal 
exercise of SAS’ [Or. 8] activity and is beyond its actual control. It therefore 
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constitutes an extraordinary circumstance for the purposes of Article 5(3) of the 
regulation. 
Airhelp 
22. Airhelp has responded to SAS’s complaints principally as follows. 
23. The strike cannot be regarded as an ‘extraordinary circumstance’ which removes 
SAS’ obligation to pay compensation. Concluding collective agreements is part of 
the ordinary business activities of an air carrier and the carrier may, in general, be 
faced with disputes or even conflicts with its staff in connection with this type of 
collective and recurrent wage negotiations. 
24. Between SAS, on the one hand, and Svensk Pilotförening (SPF), Dansk 
Pilotforening and Norske SAS- Flygeres Förening, on the other hand, collective 
agreements on wages and general conditions of employment apply to SAS flight 
captains and first officers, the so-called pilot agreement. In negotiating such 
agreements, it is open to the parties to take industrial action such as strikes and 
lockouts. Where social partners have reached a collective agreement, there is a 
mandatory social truce for the term of the agreement. This means that the parties 
may not take industrial action during that period. An unlawful strike or a wildcat 
strike is a strike called during the mandatory social truce. 
25. There have previously been conflicts between SAS and various groups of staff 
which, on several occasions, have led to industrial action on the part of the 
workers. The conflicts sometimes arose with regard to pay conditions and 
improved working conditions but also out of a desire by the workers to have their 
own influence in the workplace. One conflict that must be highlighted in 
particular is the so-called ‘SAS crisis’ of 2012, when SAS found itself on the 
brink of bankruptcy. Strict savings requirements had been imposed on SAS by 
major shareholders as a requirement for further lending to it, which led to SAS 
employees being forced during the currency of the collective agreement then 
applicable to accept reduced wages for work done in order not to lose their jobs. 
The pilots were to work more and lose one month’s wages per year. [Or. 9] 
26. The expression ‘extraordinary circumstances’ within the meaning of Article 5(3) 
of the regulation is an exception which must be interpreted restrictively. It is 
apparent from the Court’s case-law that only an event which satisfies two criteria 
can be regarded as constituting extraordinary circumstances. First, the event 
cannot be inherent in the normal exercise of the carrier’s activities. Second, the 
event must be beyond the undertaking’s actual control (see paragraph 32 of 
Krüsemann and Others, C-195/17). 
27. Negotiations concerning pay and working conditions, under threat of strike – at 
least in Member States such as Denmark, Norway and Sweden – are common and 
predictable for all undertakings and lie within the undertaking’s control. A strike 
by the air carrier’s own staff is, as a starting point, a normal activity for the air 
carrier and therefore inherent in the normal exercise of the air carrier’s activities. 
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Such strikes are normally a reaction to issues which lie within the air carrier’s 
actual control. If the strike is carried out in accordance with the national 
employment legislation applicable to the parties, which, moreover, implies that 
the staff and its trade unions have notified the air carrier before the strike begins, 
the air carrier has time to take the decisions that are necessary to avoid liability to 
pay compensation, for example by preventing the announced strike or at least 
minimising the risk of it being carried out. 
28. As regards SAS, it is clear that an important underlying cause of the 2019 pilot 
strike is the decision taken by SAS in 2012, which led to drastic reductions in 
pilots’ wages and working conditions on account of the air carrier’s financial 
difficulties. SAS achieved economic recovery in 2019, so it is absolutely 
predictable and reasonable that, in the context of new contractual negotiations, 
pilots should want higher wages and improved working conditions. The pilots 
considered SAS’ rate of remuneration to be below market level while SAS 
considered the pilots’ wage demands unreasonably high. Under the new collective 
agreement, therefore, the rate of remuneration will, in 2021, be 10.5% higher than 
what it was in 2018. [Or. 10] 
29. In the light of the foregoing, the staff strike to which this matter relates is both 
inherent in the normal exercise of SAS’ activities and within SAS’ control and 
therefore cannot be regarded as an extraordinary circumstance. 
Relevant provisions of EU law 
30. Recital 14 of Regulation No 261/2004 states the following: 
‘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.’ 
31. Article 5 of Regulation No 261/2004 provides as follows: 
‘1. In case of cancellation of a flight, the passengers concerned shall 
... 
(c) have the right to compensation by the operating air carrier in accordance 
with Article 7, unless: 
(i) they are informed of the cancellation at least two weeks before the scheduled 
time of departure; or 
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(ii) they are informed of the cancellation between two weeks and seven days 
before the scheduled time of departure and are offered re-routing, allowing them 
to depart no more than two hours before the scheduled time of departure and to 
reach their final destination less than four hours after the scheduled time of 
arrival; or 
(iii) they are informed of the cancellation less than seven days before the 
scheduled time of departure and are offered re-routing, allowing them to depart no 
more than one hour before the scheduled time of departure and to reach their final 
destination less than two hours after the scheduled time of arrival. 
... [Or. 11] 
3. An operating air carrier shall not be obliged to pay compensation in accordance 
with Article 7, if it can prove that the cancellation is caused by extraordinary 
circumstances which could not have been avoided even if all reasonable measures 
had been taken.’ 
32. Article 7(1) of Regulation No 261/2004 provides as follows: 
‘Right to compensation 
1. Where reference is made to this Article, passengers shall receive compensation 
amounting to: 
(a) EUR 250 for all flights of 1500 kilometres or less; 
(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and 
for all other flights between 1500 and 3500 kilometres; 
(c) EUR 600 for all flights not falling under (a) or (b). 
In determining the distance, the basis shall be the last destination at which the 
denial of boarding or cancellation will delay the passenger’s arrival after the 
scheduled time.’ 
33. Article 28 of the Charter of Fundamental Rights of the European Union provides 
as follows: 
‘Right of collective bargaining and action 
Workers and employers, or their respective organisations, have, in accordance 
with Union law and national laws and practices, the right to negotiate and 
conclude collective agreements at the appropriate levels and, in cases of conflicts 
of interest, to take collective action to defend their interests, including strike 
action.’ 
34. Under Article 151 of the Treaty on the Functioning of the European Union: 
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‘The Union and the Member States, having in mind fundamental social rights such 
as those set out in the European Social Charter signed at Turin on 18 October 
1961 and in the 1989 Community Charter of the Fundamental Social Rights of 
Workers, shall have as their objectives the promotion of employment, improved 
living and working conditions, so as [Or. 12] to make possible their 
harmonisation while the improvement is being maintained, proper social 
protection, dialogue between management and labour, the development of human 
resources with a view to lasting high employment and the combating of exclusion. 
To this end the Union and the Member States shall implement measures which 
take account of the diverse forms of national practices, in particular in the field of 
contractual relations, and the need to maintain the competitiveness of the Union 
economy. 
They believe that such a development will ensue not only from the functioning of 
the internal market, which will favour the harmonisation of social systems, but 
also from the procedures provided for in the Treaties and from the approximation 
of provisions laid down by law, regulation or administrative action.[’] 
Article 6 of the European Social Charter of 18 October 1961 provides: 
[‘]All workers and employers have the right to bargain collectively.’ 
Relevant national legislation 
35.  Paragraph 45 of the Lag (1976:580) om medbestämmande i arbetslivet (Law on 
workers’ participation in decisions) provides, inter alia: 
‘Where an employers’ organisation, employer or workers’ organisation is 
considering taking industrial action or extending ongoing industrial action, it shall 
notify in writing the counterparty and the Mediation Office at least seven working 
days in advance. Every day except Saturday, Sunday, any other public holiday, 
Midsummer Eve, Christmas Eve and New Year’s Eve is regarded as a working 
day. The time limit shall be calculated from the same time of day as that at which 
the industrial action commences.’ [Or. 13] 
Need for a preliminary ruling 
36. There is no definition of the expression ‘extraordinary circumstances’ in 
Regulation No 261/2004. In recital 14 of the regulation, however, it is stated that 
extraordinary 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 Court of Justice has found that 
the list in recital 14 of that regulation is indicative and does not automatically 
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imply the existence of extraordinary circumstances in the situations specified 
(Wallentin-Hermann, C-549/07, EU:C:2008:771, paragraph 22). 
37. The Court has interpreted the expression ‘extraordinary circumstances’ in Article 
5(3) of Regulation No 261/2004 in a number of cases, (see Sturgeon and Others, 
C-402/07 and C-432/07, EU:C:2009:716; Wallentin-Hermann, C-549/07, 
EU:C:2008:771; Eglītis and Ratnieks, C-294/10, EU:C:2011:303; van der Lans, 
C-257/14, EU:C:2012:604; Pešková and Peška, C-315/15, EU:C:2015:618; 
Finnair, C-22/11, EU:C:2017:342, and Krüsemann and Others, C-195/17, 
EU:C:2018:258). In that regard, the Court has found that the expression 
‘extraordinary circumstances’ is to be interpreted as covering events which, by 
their nature or origin, are not inherent in the normal exercise of the activity of the 
air carrier concerned and are outside that air carrier’s actual control (Pešková and 
Peška, C-315/15, EU:C:2017:342, paragraph 22). 
38. The main question in the present case is how the term ‘extraordinary 
circumstances’ within the meaning of Article 5(3) of that regulation should be 
interpreted in the case of a strike of which notice is given and which is lawfully 
initiated by workers’ organisations. The question has not previously been 
examined by the Court. The parties to the proceedings are in agreement that SAS 
is liable to pay compensation if the pilots’ strike does not constitute an 
extraordinary circumstance. If, however, the pilots’ strike does constitute an 
extraordinary circumstance, the parties agree that SAS is not liable to pay 
compensation. The points of contention at issue in the main proceedings therefore 
concern the interpretation of rules of EU law and the interpretation is necessary in 
order to resolve the dispute. [Or. 14] 
It is the view of the referring court that there is no available case-law that might 
apply to this dispute. There is also an interest in a uniform interpretation of EU 
law with regard to these questions. 
...