AIR PASSENGER RIGHTS BEFORE, DURING, AND AFTER COVID-19 The pandemic has also affected the availability of staff for individual flights, which can be attributed to the rapid spread of the disease, the increasing number of infections, and the requirements for isolating individuals who have been in contact with the infected. Flight cancellations have often occurred due to a shortage of staff, raising the question, both in theory and in practice, of whether this can be attributed to extraordinary circumstances. A potential solution might lie in the existing case law of the CJEU, suggesting that a shortage of airline staff does not qualify as extraordinary circumstances. Two cases in that regard should be pointed out, namely Krüsemann92 and Airhelp93, both invloving a strike by airline staff leading to their absence from work. In both cases, the CJEU assessed whether a strike causing employees not to perform their duties constituted extraordinary circumstances. The aforementioned rulings do not explicitly address whether a shortage of staff itself falls under extraordinary circumstances. Instead, the CJEU focused on whether a strike fulfills those criteria, making the actual situations in both cases significantly different from a staff shortage due to COVID-19 infection. In other words, disagreements between employees and employers in the form of strikes are a risk that each employer must consider and are inherent in the relationship between employees and the employer. This, however, cannot be asserted for a pandemic. Consequently, the analogous application of this case law is not suitable, and it does not provide an answer on how to handle cases of mass infection of airline staff. Instead, the opinion of Advocate General Tanchev in the Krüsemann case should be taken into consideration, where it was emphasized that the mass absence from work due to a pandemic or other public health emergencies is not inherently linked to the normal operations of air carriers and is beyond the carrier's actual control. Therefore, it constitutes extraordinary circumstances within the meaning of Article 5(3) of the Regulation.94 It is essential to distinguish between health conditions during a pandemic and the regulation of sick leave in an ordinarily healthy community. Sick leaves of this nature are inherent to the operations of air carriers, thus not constituting extraordinary circumstances.95 During the outbreak of COVID-19 the European Commission issued an interpretative guidelines to help with the interpretation of Regulation 92 Case C-195/17, Krüsemann of 17 April 2018. 93 Case C-28/20, Airhelp of 23 March 2021. 94 Opinion of Advocat General Tancheva in case C-195/17, Krüsemann of 12 April 2018, paras. 50-51. 95 Ibid.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==