1 This request for a preliminary ruling concerns the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
2 The request has been made in proceedings between CS and Eurowings GmbH concerning the latter’s refusal to compensate CS for the cancellation of a flight on which he had booked a seat.
3 Recitals 1, 4, 14 and 15 of Regulation No 261/2004 state: ‘(1) Action by [the European Union] in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general. … (4) [The European Union] should therefore raise the standards of protection set by [Council] Regulation [(EEC) No 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport (OJ 1991 L 36, p. 5)] both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market. … (14) As under the [Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999 and approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38)], 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. (15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.’
4 Article 2 of that regulation, entitled ‘Definitions’, provides: ‘For the purposes of this Regulation: … (b) “operating air carrier” means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger; … (l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’
5 Under Article 5 of that regulation, which is entitled ‘Cancellation’: ‘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 (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. … 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. …’
6 Article 7 of that regulation, headed ‘Right to compensation’, provides in paragraph 1 thereof: ‘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). …’
7 CS had reserved a seat on a flight from Salzburg (Austria) to Berlin (Berlin-Tegel Airport, Germany). The flight distance between those two cities is less than 1500 km. However, that flight, which was supposed to be operated by Eurowings on 20 October 2019, had to be cancelled due to a strike by the cabin crew of that operating air carrier.
8 That strike was organised on the initiative of the trade union UFO, which is a trade union for stewards and air hostesses. The strike was the result of collective bargaining with Lufthansa AG, which is the parent company of Eurowings. On 18 October 2019, in order to drive the negotiations forward and increase the pressure on the parent company of the group, the strike notice of 14 October 2019 was extended to the employees of several subsidiaries, including Eurowings. The strike, which was originally scheduled to take place on 20 October 2019 from 5.00 to 11.00, was extended, on the same day and without notice, until midnight. As that strike was prolonged, the flight plan prepared for that day could not be adhered to. As a result, Eurowings had to cancel 158 of the 712 flights planned for 20 October 2019, including CS’s flight.
9 CS is seeking compensation of EUR 250 under Article 7(1)(a) of Regulation No 261/2004. He claims that the cabin crew strike which led to the cancellation of his flight does not constitute one of the ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation, and is attributable to Eurowings. The strike appears, in his view, to stem from internal restructuring measures within the operating air carrier itself and should have been avoided by that air carrier by means of negotiations and corresponding agreements. Furthermore, collective labour disputes are inherent in the exercise of an air carrier’s activity. Lastly, the agreement subsequently reached shows that Eurowings was in a position to settle the labour dispute. According to the applicant, the strike was thus inherent in the normal exercise of that carrier’s activity and was not beyond its control.
10 Eurowings contends, for its part, that the flight was cancelled due to extraordinary circumstances. It argues that the strike notice of 14 October 2019 concerned only Lufthansa and that it was only on 18 October 2019 that that notice was extended to its subsidiaries, including Eurowings. Furthermore, the strike was originally supposed to take place from 5.00 to 11.00. It was only on the day of the strike that that period was extended, spontaneously and without notice from the trade union, until midnight. Eurowings was not informed of this until 5.30 on the same day, which is why the emergency plan which it had drawn up to manage the originally scheduled strike period was of no use. In addition, by using subcharters on the day of the flight which CS should have taken, it was ultimately forced to cancel only 158 flights out of a total of 712 affected flights. Eurowings thus took all the measures in its power in order to reduce the negative effects of the collective action on all the flights usually scheduled for that day. Lastly, Lufthansa gave way to the demands on 18 October 2019 and announced a 2% pay rise. The warning strike at Lufthansa had thus been cancelled, whereas the strike at Eurowings had gone ahead, even though there were no longer any grounds for it. The strike was not therefore inherent in the normal exercise of an air carrier’s activity, nor was it within Eurowings’ control, as the extension of the strike to other companies and its prolongation constituted unavoidable extraordinary circumstances for that company.
11 CS brought an action before the Bezirksgericht Salzburg (District Court, Salzburg, Austria) requesting that Eurowings be ordered to pay him compensation of EUR 250 under Article 7(1)(a) of Regulation No 261/2004. That court dismissed CS’s action on the ground that the strike action at issue had to be classified as one of the ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation. That court found, inter alia, that, first, although Lufthansa, as the parent company of the group, had met staff demands, the strike had gone ahead and had even been extended. Secondly, as a subsidiary of Lufthansa, Eurowings was unable to achieve an agreement that was binding on the parent company. Furthermore, of the 712 flights scheduled for the day of the strike, Eurowings had managed to limit the cancellations to 158 flights, those flight cancellations being unavoidable.
12 CS brought an appeal against that judgment before the referring court, the Landesgericht Salzburg (Regional Court, Salzburg, Austria).
13 The referring court notes that the Court of Justice has not yet had to rule on a situation in which a strike by the staff of an operating air carrier occurs in the context of a group of companies. Thus, the question arises as to whether and for how long it is inherent in the normal exercise of the activity of the air carrier concerned for the subsidiary’s employees to come out in sympathy with a strike called by a trade union against the parent company, in order to support pay demands pursued by the trade union on behalf of the parent company’s cabin crew. That question arises a fortiori where, following the agreement concluded between the trade union and the parent company of the group, the strike at the subsidiary becomes ‘independent’, the trade union having gone ahead with the strike and even extended it for no apparent reason and the cabin crew having responded to that call to strike.
14 The referring court considers that it is for the operating air carrier to adduce evidence of extraordinary circumstances and to show that it could not in any event have avoided those circumstances by taking measures appropriate to the situation. In that regard, the question arises as to whether it is sufficient for that carrier to argue that, even though the parent company met the trade union’s demands, the trade union reiterated, and even subsequently extended, the call to strike. The referring court considers that excessive requirements should not be imposed on the operating air carrier as regards the burden of proof. If the reason for a strike is that collective bargaining has stalled, but an agreement is ultimately reached, the strike and its extension must be considered unfounded, provided that no causes that can be ascribed to that carrier come to light in the process.
15 The referring court also observes that, in the event that restructuring is required as a result of a strike by the staff of an operating air carrier, it is acceptable in principle to set priorities with reference to the need to minimise the inconvenience to all passengers.
16 In those circumstances the Landesgericht Salzburg (Regional Court, Salzburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does a strike by an air carrier’s staff called by a trade union to pursue pay demands and/or social benefits constitute “extraordinary circumstances” within the meaning of Article 5(3) of Regulation (EC) No 261/2004? (2) Would it at the very least: (a) where staff of the subsidiary company come out in sympathy with a strike called against the parent company [(Lufthansa)] in order to support parent company cabin crew demands being pursued by the trade union, and (b) in particular where the strike in the subsidiary company becomes an “independent” strike, after agreement has been reached with the parent company, because the trade union reiterates the call for and even extends the strike for no apparent reason and the cabin crew of the subsidiary company responds to that call? (3) Does it suffice for the purpose of proving extraordinary circumstances that the operating air carrier claims that the call for the strike was continued for no reason, as the parent company had met the demands of the trade union, and was ultimately prolonged by the trade union, and who bears the burden of proof where the precise reasons in fact for that have remained unclear? (4) Can a strike in the defendant’s subsidiary company which was announced on 18 October 2019 for 05.00 to 11.00 on 20 October 2019 and which ultimately was spontaneously prolonged at 05.30 on 20 October 2019 to midnight be regarded as circumstances which are now beyond actual control? (5) Are precautions in the form of an alternative flight plan and the use of subcharters for flights cancelled due to a lack of available cabin crew measures appropriate to the situation, taking account in particular of “water destinations” not easily reached by land and the difference between German domestic flights and internal European flights and, in addition, the fact that only 158 out of a total of 712 flights scheduled for that day had to be cancelled? (6) What requirements should be attached on the operating air carrier’s burden of assertion that all technically and economically viable measures were taken?’
17 By its first, second, third and fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 5(3) of Regulation No 261/2004 is to be interpreted as meaning that strike action intended to assert workers’ demands with regard to salary and/or social benefits, which is entered into upon a call by a trade union of the staff of an operating air carrier in solidarity with strike action which was launched against the parent company of which that carrier is a subsidiary, which is observed by a category of the staff of that subsidiary whose presence is necessary to operate a flight, and which continues beyond the period originally announced by the trade union which called the strike, in spite of the fact that an agreement has been reached in the meantime with the parent company, is covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision.
18 First of all, it should be recalled that, where a flight is cancelled, Article 5 of Regulation No 261/2004 provides that the passengers concerned have the right to compensation by the operating air carrier, in accordance with Article 7(1) of that regulation, unless they have been informed of the cancellation beforehand within the deadlines laid down in Article 5(1)(c)(i) to (iii) thereof. Article 5(3) of that regulation nevertheless enables that carrier to be released from that obligation to pay compensation if it proves that the cancellation is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 21 and 22 and the case-law cited).
19 The concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, which must be interpreted strictly, refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that carrier’s actual control; those two conditions are cumulative and their fulfilment must be assessed on a case-by-case basis (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 23 and 24 and the case-law cited).
20 In the first place, as is apparent from paragraph 28 of the judgment of 23 March 2021, Airhelp (C‑28/20, EU:C:2021:226), despite embodying a moment of conflict in relations between the workers and the employer, whose activity it is intended to paralyse, a strike nevertheless remains one of the ways in which collective bargaining may manifest itself and, therefore, must be regarded as an event inherent in the normal exercise of the activity of the employer concerned, irrespective of the particular features of the labour market concerned or of the national legislation applicable as regards implementation of the fundamental right guaranteed in Article 28 of the Charter of Fundamental Rights of the European Union.
21 Such considerations must also apply where, as here, the employer is an operating air carrier, which may, as a matter of course when carrying out its activity, face disagreements or conflicts with all or part of its staff (see, to that effect, judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraphs 41 and 42). Measures relating to the working and remuneration conditions of an operating air carrier’s staff fall within the normal management of that carrier’s activities (judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 29).
22 Thus, a strike whose objective is limited to obtaining from an air transport undertaking an increase in the cabin crew’s salary constitutes an event that is inherent in the normal exercise of that undertaking’s activity, in particular where such a strike is organised within a legal framework (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 30).
23 Furthermore, in so far as both the social policy within a parent company and the group policy established by that company may have an impact on the social policy and strategy of the subsidiaries in that group, a strike set in motion by the staff of an operating air carrier in solidarity with the strike observed by the staff of the parent company of which that carrier is a subsidiary cannot be regarded as an event which is not inherent in the normal exercise of the latter’s activity. As the European Commission remarked in its written observations, it is neither out of the ordinary nor unforeseeable that labour disputes may extend to different parts of a group of undertakings during collective bargaining.
24 In the second place, a strike intended to assert workers’ demands with regard to salary and/or social benefits must be regarded as an event that is not entirely beyond the actual control of the air carrier concerned (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 36), including where the strike is set in motion in solidarity with the striking staff of the parent company of which that carrier is a subsidiary.
25 First, since the right to strike is, for workers, a right guaranteed by Article 28 of the Charter of Fundamental Rights of the European Union, the fact that they invoke that right and consequently launch strike action must be regarded as foreseeable for any employer, in particular where notice of the strike is given (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraph 32).
26 The Court has indeed already held, in paragraph 18 of the judgment of 7 May 1991, Organisationen Danske Slagterier (C‑338/89, EU:C:1991:192), that a strike which has been preceded by the notice required by the applicable national legislation and in respect of which it has been announced that it could spread to sectors affecting the activities of an undertaking initially not concerned by that strike does not constitute an abnormal and unforeseeable event.
27 By analogy, where a trade union issues a call to strike to the staff of a parent company, it is foreseeable that the staff of other entities in the group led by that parent company will join the strike action in solidarity or in order to defend, on that occasion, its own interests.
28 Secondly, because the occurrence of a strike constitutes an event that is foreseeable for the employer, the latter has, in principle, the means to prepare for it and, as the case may be, mitigate its consequences, with the result that the employer retains control over events to a certain extent. Since, as has been noted in paragraph 19 of the present judgment, the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 must be interpreted strictly, it must be held that the choice of the word ‘extraordinary’ attests to the EU legislature’s intention to include in that concept only circumstances over which the operating air carrier has no control. Like any employer, such a carrier faced with a strike by its staff that is founded on demands relating to salary and/or social conditions cannot claim that it does not have any control over that action (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 35 and 36). The same applies where a strike is set in motion by the staff of an operating air carrier in solidarity with the staff of its parent company.
29 Accordingly, in order to ensure the effectiveness of the obligation to pay compensation laid down in Article 7(1) of Regulation No 261/2004, a strike by the staff of an operating air carrier cannot be classified as one of the ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation where that strike is connected to demands by the staff of that carrier relating to salary and/or social conditions that are capable of being dealt with through management-labour dialogue within the group of companies to which that carrier belongs. Nor can that finding be called into question by the fact that the strikers’ demands might be unreasonable or disproportionate since, in any event, the determination of salary levels, or, more generally, working conditions, falls within the scope of the employment relationship between the employer and its workers (see, to that effect, judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 37 and 38).
30 Thirdly, as is apparent from paragraph 42 of the judgment of 23 March 2021, Airhelp (C‑28/20, EU:C:2021:226), by stating, in recital 14 of Regulation No 261/2004, that extraordinary circumstances may, in particular, occur in the case of strikes that affect the operations of an operating air carrier, the EU legislature intended to refer to strikes that are external to the activity of the air carrier concerned. It follows that strike action launched and observed by air controllers or airport staff may in particular constitute ‘extraordinary circumstances’ within the meaning of Article 5(3) of that regulation.
31 On the other hand, a strike set in motion and observed by members of an operating air carrier’s own staff is an event ‘internal’ to that undertaking, including in the case of a strike set in motion upon a call by trade unions, since they are acting in the interest of that undertaking’s workers. If, however, such a strike originates from demands which only the public authorities can satisfy and which, accordingly, are beyond the actual control of the air carrier concerned, it is capable of constituting ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 (judgment of 23 March 2021, Airhelp, C‑28/20, EU:C:2021:226, paragraphs 44 and 45).
32 In that regard, the fact that a strike continues beyond the period that may have been mentioned in the strike notice, in spite of the fact that an agreement has been reached in the meantime with the parent company, cannot be regarded as decisive. Even assuming that, under national law, exceeding the period originally announced by the trade union which called the strike would lead that strike to be classified as unlawful, this would have no bearing on the way in which that strike is classified with regard to Article 5(3) of Regulation No 261/2004 (see, to that effect, judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 46).
33 As the Court has already held, making a distinction between strikes which, under the applicable national law, are legal and those which are not in order to determine whether they are to be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 would make the right to compensation of passengers dependent on the social legislation specific to each Member State, thereby undermining the objectives of Regulation No 261/2004, referred to in recitals 1 and 4 of that regulation, which are to ensure a high level of protection for passengers as well as equivalent conditions for the exercise of the activities of air carriers on the territory of the European Union (judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 47).
34 In those circumstances, the answer to the first, second, third and fourth questions is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that strike action intended to assert workers’ demands with regard to salary and/or social benefits, which is entered into upon a call by a trade union of the staff of an operating air carrier in solidarity with strike action which was launched against the parent company of which that carrier is a subsidiary, which is observed by a category of the staff of that subsidiary whose presence is necessary to operate a flight, and which continues beyond the period originally announced by the trade union which called the strike, in spite of the fact that an agreement has been reached in the meantime with the parent company, is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision.
35 There is no need to answer the fifth and sixth questions, since they are based on the premiss that a strike such as that at issue in the main proceedings should be classified as one of the ‘extraordinary circumstances’ referred to in Article 5(3) of Regulation No 261/2004.
36 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.