Judgment of the Court Grand Chamber of 23 March 2021, Airhelp, Case C-28/20

• Date: 23 March 2021
• Year: 2021

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being and fitness services. Therefore, such supplies must be regarded as distinct and independent of

one another for the purposes of the application of Article 2(1)(c) of the VAT Directive.

VI. TRANSPORT

Judgment of the Court (Grand Chamber) of 23 March 2021, Airhelp, Case C-28/20

Link to the complete text of the judgment

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 free dom to conduct a business, right to property and right of

negotiation

A passenger had booked a seat on a flight from Malmö to Stockholm (Sweden) that was to be

operated by Scandinavian Airlines System Denmark – Norway – Sweden (‘SAS’) on 29 April 2019. The

flight was cancelled on the day of the flight because of a strike by SAS’s pilots in Denmark, Swed en

and Norway (‘the strike at issue’).

Following the failure of negotiations, conducted by the trade unions representing SAS pilots, that had

the objective of concluding a new collective agreement with the airline, the trade unions had called on

their members to strike. That strike lasted seven days and resulted in SAS cancelling a number of

flights, including the flight booked by the passenger concerned.

Airhelp, to which that passenger assigned any rights that he had vis-à-vis SAS, brought proceedings

before the Attunda tingsrätt (Attunda District Court, Sweden), claiming the compensation laid down

by the Air Passenger Rights Regulation

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for cancellation of a flight. In this instance, SAS had refused

to pay the compensation, taking the view that the strike by its pilots constituted an ‘extraordinary

circumstance’ within the meaning of that regulation

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since it was not inherent in the normal exercise

of its activity of providing air transport services and was beyond its actual control. Airhelp took the

view that the strike did not constitute an ‘extraordinary circumstance’ of that kind since industrial

action, such as strikes, w hich is liable to take place when collective agreements are negotiated and

concluded, falls within the ordinary course of business of an airline.

The Attunda District Court expressed doubts as to whether the concept of ‘extraordinary

circumstances’ within the meaning of the Air Passenger Rights Regulation encompasses a strike which

is announced by workers’ organisations following the giving of notice, is lawfully initiated and is

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Article 5(1)(c), read in conjunction with Article 7(1)(a), of Regulation (EC) No 261/2004 of the European Parliament and of the Council of

11 February 2004 establishing common rules on compe nsation and assistance to passengers in the event of denied boarding and of

cancellation or long delay of flights, and repealing Regulation (EEC) N o 295/91 (OJ 2004 L 46, p. 1; ‘the Air Passenger Rights Regulation’).

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Under Article 5(3) of the Air Passenger Rights Regulation, an operating ai r carrier is not to be obliged to pay compensation in accordance

with Article 7 of the regulation 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.