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

Date23 March 2021
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.
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
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
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
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
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’).
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.

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