Right to strike in civil aviation
Since the EU has no prerogative to adopt any regulation on strikes and industrial action (as per Article 153(6) of the Treaty on the Functioning of the European Union), there are no specific EU rules regarding the right to strike in civil aviation. However, the civil aviation sector is closely linked to fundamental rights in the EU, as it touches upon the freedom of movement for both people and goods, among other things. In the light of the above, the European Commission has tried to manage these fundamental rights in relation to the right to strike.
Civil aviation strike action at EU level is rare and is mostly aimed at EU policymaking, particularly when it comes to the introduction of changes in air traffic management (ATM). One example is the strike of 19 June 2002, when employees in a range of countries protested against the Commission’s plans to create a single European airspace. The debate over a framework through which to exercise the right to strike occurred on 8 June 2017 when the Commission presented the communication on Aviation: Open and connected Europe , which included a series of measures to increase the competitiveness of the aviation industry. The Commission highlighted that ‘of all the causes of air traffic disruption, industrial action in the form of strikes poses the most complex challenges as ATM strikes usually result in many flight cancellations and delays, leaving passengers stranded at airports’. The Commission presented data from 2005 to 2016 showing that 243,660 flights were cancelled as a result of ATM strikes, affecting an estimated 27 million passengers.
While acknowledging that the right to strike is a fundamental right, the Commission identified a number of operational measures which could be implemented by stakeholders to address these issues, such as the implementation of a toolbox developed by the social partners in the ATM sector. The Commission called on trade unions to provide early notification of strikes to allow aviation stakeholders to prepare mitigation plans ahead of industrial action (e.g. at least 14 days prior to the beginning of the strike). Otherwise, staff members should ‘provide individual notification of their participation to industrial action’ to allow the management ‘to organise the air traffic and manage the staff ahead of the strike (e.g. 72 hours prior to the beginning of the strike)’. The Commission also suggested some new rules to preserve overflights of Member States affected by strikes and to avoid strikes during air traffic peak periods.
These proposals have been met with anger by the European trade union movement. The European Transport Workers’ Federation launched a campaign to defend ‘the right to strike of European ATM staff’, while the European Trade Union Confederation demanded that the Commission ‘remove all references to restricting the right to strike from its initiative’. This tone was not echoed by employers’ organisations, such as the new Airlines for Europe (A4E) association, that brings together the main traditional airlines, which stated that one of its objectives is to limit the impact of air traffic management strikes on travellers and businesses, while recognising the fundamental right of the controllers to strike.
Also of note, the Court of Justice ruled on 17 April 2018 that a strike did not release an air carrier from its obligation to pay compensation to its customers affected by a delay, insofar as an industrial action does not constitute ‘extraordinary circumstances’ for an air carrier. The case concerns the employees of the German company TUI fly, many of whom took sick leave following the company’s surprise announcement of a restructuring. It was queried whether such industrial action, which was classified as a ‘wildcat strike’, could release the air carrier from its obligation to pay compensation to its passengers. However, the Court points out that although Recital 14 of the Regulation No 261/2004 of 11 February 2004 states that extraordinary circumstances may occur in cases of strikes affecting the operation of an operating air carrier, it maintains ‘that the circumstances referred to in this recital are not necessarily and automatically grounds of exemption from the obligation to pay compensation’.
Civil aviation is also one of the rare sectors where EU industrial action has involved employees from several Member States on the same day, as occurred in 2018 for the low-cost airline company Ryanair.