Stefanie Gilcher Hans Georg Helwig October 14 2015 No damages to third party after unlawful strike? Arnecke Sibeth Dabelstein | Aviation - Germany Stefanie Gilcher, Hans Georg Helwig Aviation FactsDecisionCommentOn August 25 2015 the Federal Labour Court denied compensation to a third party as a consequence of a strike.The court dismissed a complaint from four airlines against the strike which had been initiated by the trade union due to cancelled, delayed or redirected flights. The airlines had been affected by a (supporting) strike held by the air traffic controllers of the Air Traffic Service at Stuttgart Airport.FactsPursuant to Sections 823 and 826 of the Civil Code (liability in tort), the claimants demanded compensation from the Air Traffic Control Union. The Air Traffic Control Union defends the interests of airport security personnel and air traffic controllers in Germany.In March 2009 airport security personnel (ground control) went on a temporary strike against their employer Stuttgart Airport. On April 6 2009 the Air Traffic Control Union called a strike of air traffic controllers to support the airport security personnel's labour dispute. The air traffic controllers were employed by the Air Traffic Service. Due to the work stoppage, several flights were cancelled, redirected or delayed. Only 25% of regular flights could be operated. A preliminary injunction of the Frankfurt Labour Court enjoined the participation of the air traffic controllers involved in the strike.Decision The previous instances denied compensation claims on the basis of liability in tort. The Federal Labour Court ruled in that same sense – the airlines could not demand compensation.The court held that the claimants could not claim compensation for unlawful violation of property rights because of the limitation of aircraft use according to Section 823 I of the Civil Code. In particular, the claimants could not base their claim on infringement of their rights to carry on their established business. The court ruled that the opponents in the strike were not airlines, but rather the air traffic controllers' employer and Stuttgart Airport. Nothing further could be taken from the public law framework with regard to airlines.In addition, the court pointed out that the conditions for immoral damages pursuant to Section 826 of the code were not fulfilled.CommentThe decision was not a surprise. Aside from legal aspects, it would have resulted in a paradigm shift if a court had burdened a trade union with the risk of third-party damages if a strike were considered unlawful. Such a ruling could potentially lead to the abandonment of a strike due to the risks involved. Perhaps it is time that trade unions took potential third-party damages into consideration when elaborating their tactics.The court clarified that in the case of an unlawful strike against an employer, the trade union can be held liable for damages caused by the strike. Further developments are anticipated following the judicial enjoinment of the latest strike against Lufthansa called for by the pilots' union (for further details please see "Regional labour court stops Lufthansa pilot union strike").Moreover, trade unions face a time of uncertainty with regard to damages for disproportionate strikes. Germany has just passed a bill to avoid the plurality of collective agreements in one corporation. The bill strengthens the rights of powerful unions. Thus, smaller unions that still attempt to gain power in a corporation might initiate an unlawful strike, thus incurring liability.Companies – including airlines and aviation-related operators – could commence to mutually transfer claims for damages resulting from strikes to fulfil the requirements for a potential action.For further information on this topic please contact Stefanie Gilcher or Hans Georg Helwig at Arnecke Sibeth by telephone (+49 69 97 98 85 0) or email ([email protected] or [email protected]). The Arnecke Sibeth website can be accessed at www.arneckesibeth.com.