Article 28 - Right of collective bargaining and action
Key facts of the case:
Request for a preliminary ruling from the Landesgericht Salzburg. Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 5(3) – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Exemption from the obligation to pay compensation – Concept of ‘extraordinary circumstances’ – Strike by airline staff – Strike by the staff of a subsidiary in solidarity with the staff of the parent company.
Outcome of the case:
On those grounds, the Court (Ninth Chamber) hereby rules:
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, 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 air 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.
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.
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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).
