LH pilot strike and passenger rights

The pilots of the German carrier Lufthansa (LH) are on strike from Wednesday 2 April to Friday 4 April demanding higher wages and better retirement schemes. As a result, about 3.800 flights will be cancelled (see more here). From a legal view, it is worth highlighting a few issues on passenger rights according to EU law in such cases.

In Europe cancellation of flights is regulated by Regulation (EC) Nr. 261/2004. The Regulation applies to all flights departing from an EU airport and to flights of EU carriers departing from third countries destined to EU.

The Regulation lays down duties of only the actual carrier, i.e. the carrier that operates the flight, irrespective of whether that carrier is also the contracting carrier. This means LH does not have any duties according to the Regulation for flights operated by other carriers on its behalf, e.g. based on a code share agreement.

In case of cancellation, passengers have three categories of rights:

1) to have their tickets reimbursed for the cancelled part of the flight and possibly offered a return flight to the initial point of departure (if the passenger has no more an interest in continuing the flight) or re-routing under comparable transport conditions to the final destination at the earliest opportunity or re-routing, under comparable transport conditions, to their final destination at a later date at the passenger's convenience, subject to availability of seats,

2) to receive free meals and refreshments proportionate to the waiting time, possibly free hotel accommodation and  free transfer from the airport to the hotel and back to the airport, as well as two free e-mails, telex or fax messages or phone calls,

3) to receive compensation, which varies from 250 € to 600 € according to the distance to the final destination. Compensation is not due in two cases:

(a) passengers have been informed in time on the cancellation of flight. In time means:

(i) at least two weeks before the date of the flight - which is not the case for the LH here, because pilots decided to strike last week,

(ii) less than two weeks but more than seven days before the date of the flight, provided that passengers are offered re-routing, which allows them to depart no more than two hours before the scheduled departure time and to reach their final destination less than four hours after the scheduled arrival time;

(iii) less than seven days before the scheduled time of departure, provided that passengers 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 arrival time.

(b) the carrier proves that the cancellation was due to “extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken”. The Regulation’s preamble explicitly refers strikes as an example of “extraordinary circumstances”.

However, the latter provision creates most of the problems in practice. The following should be kept in mind.

First, the exoneration concerns only the duty to provide compensation, not the other duties. This is a very common misconception. Thus, passengers are in any case entitled to receive free meals, possibly hotel accommodation, free transfer to the hotel etc.

Second, the carrier must prove that it had either taken all reasonable measures or that such measures would not have prevented the cancellation either way. The CJEU has laid a heavy burden of proof in this regard. It has ruled that the carrier must establish its clear inability to prevent the extraordinary circumstances, i.e. that cancellation could not have been prevented at all or could have been prevented only if the carrier had made intolerable sacrifices in the light of the technical and economic capacities of its undertaking at the relevant time (case C-549/07 Wallentin Herman).

Third, there used to be a dispute on whether the provision included strike of the carrier’s personnel. There was the view that such strikes were not covered, because they fell in the carrier’s sphere of responsibility and were thus avoidable. The German Supreme Court has ruled that the provision is applicable to all strikes, a fact indicated by the Regulation’s wording and purpose (BGH Χ ΖR 138/11). Besides, a different interpretation would constitute an impermissible intervention into the collective bargaining to the detriment of the carrier.