Compensation for delay / cancellation due to strike?

Recital 14 on the European Passenger Rights Regulation mentions, among other things, the strike that affects the operation of an airline as an exceptional circumstance. Airlines use this as an argument that a strike in general leads to an extraordinary circumstance.

Unfortunately, very different. In this respect, passengers without legal expenses insurance who shy away from a procedural cost risk should go through the arbitration board or a passenger rights portal. However, the chances that a passenger rights portal will take over the case or even “buy” the case should not be particularly high due to the fact that the legal situation has not yet been finally clarified. Anyone against it If you have legal protection insurance, you should take the chance, hire a lawyer specializing in passenger rights and, if necessary, go to court!

The BGH decided in 2012 (X ZR 138/11) that "extraordinary circumstances" within the meaning of Art. 5 Para. 3 exist in the event of a strike if a union calls on the pilots of an airline to stoppage in the context of a wage dispute and the airline on strike cancels flights to adapt the flight plan to the anticipated impact of the strike call. Such a (lawful) strike - even if it leads to a strike by its own staff - affects the company “from outside”. At that time, however, the BGH did not submit the case to the ECJ for a preliminary ruling. It is therefore unclear (and very doubtful) whether the ECJ would have come to the same conclusion.

In 2018, the CJEU ruled in the Krüsemann / TuiFly case that the spontaneous absence of a significant number of flight personnel (so-called "wildcat strike") should not be considered an exceptional circumstance if it stems from the airline's surprising announcement of restructuring plans and follows a call that is not spread by the employee representatives of the company, but spontaneously by the employees themselves who report sick. From the ECJ's point of view, the only decisive factor is that the (“wild”) strike was triggered by an entrepreneurial decision by the airline, and the entrepreneurial decision made must therefore be assigned to the airline's risk sphere.

Due to the contradicting judgments of the BGH and the ECJ, the local and regional courts are currently making very different decisions. For example, the Frankfurt District Court (judgment of 08.08.2019 - 32 C 2076/18 (86)) and the Hamburg Regional Court (judgment of 21.5.2019 - 321 S 83/18) have recently ruled in favor of passengers. The Frankfurt District Court justified its decision as follows:

"According to the current case law of the European Court of Justice (judgment of April 17.04.2018, 195, Az. C-17/5), the strike of its own personnel is not an exceptional circumstance according to Art. 3 para. 261 EG VO 2004/21.08.2012, insofar as this is its cause in the airline's business decisions. This judgment is in clear contradiction to the case law of the BGH (cf. judgment of 138, ref .: X ZR 11/14). The CJEU clearly states that the strike by its own staff cannot in principle be regarded as an exceptional circumstance. The example of an exceptional circumstance in the event of a strike mentioned in recital 5 can only affect the strike at third parties outside the company, such as air traffic controllers, security personnel. According to the case law of the CJEU, not every unexpected event is necessarily classified as an “exceptional circumstance”, but such an event can be part of the normal conduct of the carrier's business. In addition, the term "exceptional circumstances" within the meaning of Article 3 (261) of Regulation (EC) No. 2004/5 is given the aim of the regulation, which, according to its first recital, is to ensure a high level of protection for passengers and the fact that Article 3 (XNUMX) provides for an exception from the principle that passengers are entitled to compensation in the event of cancellation or long delay of a flight. "

The Case law of the ECJ In the following, a distinction must be made between an internal strike at the airline (then no exceptional circumstance and therefore the passenger is entitled to € 250, 400 or 600 in the event of cancellation) and a strike outside the company, such as a strike by the air traffic controllers (hence an unusual circumstance and no passenger claim to compensation) , The following applies to the strike by flight attendants at Lufthansa subsidiary Eurowings at the turn of the year 2019/2020: it is an internal strike at the airline Eurowings, so that the Eurowings passengers receive cancellation compensation for strikes.

If you have any questions about passenger rights, flight delays and flight cancellations, or if you need help enforcing your compensation claims against an airline, please do so Lawyer Michael Gabler gladly available! Gabler specializes in passenger rights and .