Article 16 - Freedom to conduct a business
Article 17 - Right to property
Article 28 - Right of collective bargaining and action
Article 38 - Consumer protection
Key facts of the case:
Request for a preliminary ruling from the Attunda tingsrätt. 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’ – Pilots’ strike organised within a legal framework – Circumstances that are ‘internal’ and ‘external’ to the operating air carrier’s activity – Articles 16, 17 and 28 of the Charter of Fundamental Rights of the European Union – No impairment of the air carrier’s freedom to conduct a business, right to property and right of negotiation.
Outcome of the case:
On those grounds, the Court (Grand 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 which is entered into upon a call by a trade union of the staff of an operating air carrier, in compliance with the conditions laid down by national legislation, in particular the notice period imposed by it, which is intended to assert the demands of that carrier’s workers and which is followed by a category of staff essential for operating a flight does not fall within the concept of an ‘extraordinary circumstance’ within the meaning of that provision.
27) The right to take collective action, including strike action, is a fundamental right laid down in Article 28 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and that right is protected in accordance with EU law and national laws and practices (see, to that effect, judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union, C‑438/05, EU:C:2007:772, paragraph 44).
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32) In that regard, it should be pointed out, first, that, since the right to strike is, for workers, a right guaranteed by Article 28 of the Charter, 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.
47) The existence of strike action, and the risk of having to pay the compensation laid down in Article 5(1) and Article 7(1) of Regulation No 261/2004 to passengers whose flight has been cancelled, cannot be regarded as affecting the essence of the employer’s right of negotiation referred to in Article 28 of the Charter.
49) So far as concerns the infringement invoked by SAS of both its freedom to conduct a business and its right to property, which are guaranteed by Articles 16 and 17 of the Charter respectively, it should be pointed out that freedom to conduct a business and the right to property are not absolute rights and that they must, in a context such as that at issue in the main proceedings, be reconciled with Article 38 of the Charter which, like Article 169 TFEU, seeks to ensure a high level of protection for consumers, including air passengers, in EU policies (see, to that effect, judgment of 31 January 2013, McDonagh, C‑12/11, EU:C:2013:43, paragraphs 60, 62 and 63).
51) In the light of the foregoing considerations, the fundamental rights which the operating air carrier is guaranteed by Articles 16, 17 and 28 of the Charter cannot be impaired by not categorising a strike organised within a legal framework and displaying the characteristics referred to in paragraph 25 of the present judgment as an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004.
