The European Court of Justice has said that a wildcat strike in which staff of German airline TUIfly called in sick en masse did not qualify as an “extraordinary circumstance” that would allow the carrier to avoid liability under EU Regulation 261/2004.

The 17 April decision came in response to questions raised by local courts in Hannover and Dusseldorf, which are hearing lawsuits by TUIfly passengers whose flights were disrupted by mass absences of the airline’s cockpit and cabin crew in 2016.

In late September that year, TUIfly made a surprise announcement of its plans to start a corporate restructuring process, resulting in unofficial strike action during the first week of October. At its peak on 7 October, the strike saw as much as 89% of TUIfly’s cockpit staff and 62% of its cabin crew call  in sick; the airline’s normal sickness rate is about 10%.

TUIfly resumed a normal service after reaching a deal with staff representatives on the restructuring that same day, and – in the face of dozens of lawsuits by disgruntled passengers – has claimed that it is not obliged to offer compensation for the disruption because the strikes satisfied the “extraordinary circumstance” standard in article 5(3) of Regulation 261 on passenger compensation.

Article 5(3) exempts carriers from having to pay compensation where it can prove the disruption was caused by “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” The Montreal Convention, from which Regulation 261 borrows this wording, offers the examples of political instability, extreme weather, security risks, safety failures and strikes as potentially excusable grounds for cancellations and delays.

The Hannover court, which is hearing 24 separate proceedings from TUIfly passengers, and the Dusseldorf court, which is hearing a single action brought by advocacy group on behalf of a TUIfly passenger, asked whether spontaneous absences that were unauthorised under collective agreements satisfy the standard set out in article 5(3).

Both courts also asked for clarification on whether the airline was entitled to devise a new flight plan in light of the strikes and avoid liability for any disruption to flights that otherwise could have gone ahead. The Hannover court further asks whether the requirement in article 5(3) for an airline to show that extraordinary circumstances “could not have been avoided” related to the circumstances themselves or their effect on the airline’s services.

The ECJ said that, given the objective of Regulation 261 to ensure a high level of protection for passengers, it was necessary to interpret the concept of “extraordinary circumstances” strictly as events which are not inherent in the normal activity of the air carrier and are beyond its control.

The ECJ noted that it was not disputed that the strike in the current case was a spontaneous, rather than union-led, event that had its origins in TUIfly’s restructuring announcement, adding that written observations submitted to the court by the European Commission said that the restructuring and reorganisation were part of the normal management of entities.

As such, the ECJ said, any risks that arise from the “social consequences” of restructurings must be regarded as being inherent in the normal activity of the air carrier.

Furthermore, the ECJ held that the strike was not beyond the control of TUIfly as the high level of sick leave dropped off immediately after the carrier reached an agreement with employees on the restructuring. Under the particular circumstances of the case, the court concluded that strikes that result from “the surprise announcement by an operating air carrier of a restructuring of an undertaking” and that have their origins in spontaneous action by workers don’t satisfy the article 5(3) standard.

The ECJ’s ruling came shortly after ECJ Advocate General Evgeni Tanchev published an opinion on the questions raised by the German courts on 12 April, in which he said the strikes could be seen to satisfy the criteria laid out in article 5(3).

The opinion urged the court to find that, because wildcat strikes take place outside of the legal framework for industrial action, they are outside of an air carrier’s control and not inherently linked to the normal exercise of its activity. Tanchev noted however that, under ECJ case law, the existence of extraordinary circumstances alone wasn’t enough for carriers to avoid liability, and that the exemption in article 5(3) applied only to circumstances which could not have been avoided even if all reasonable measures had been taken.

As such, he proposed to class the strikes as extraordinary circumstances and send the question of reasonable measures back to the referring courts.

While it didn’t mention Tanchev’s opinion directly, the ECJ said in its judgment that it would defeat the object of Regulation 261 to make distinctions between legal and illegal strikes under applicable national law when deciding whether they qualified as extraordinary circumstances. Strike actions, while mentioned in the Montreal Convention, are “not necessarily and automatically grounds for exemption” the court said, adding that it was necessary to assess “on a case by case basis” whether a particular action by employees fulfilled the cumulative conditions of being outside of the normal business of the carrier and beyond its control.

In the European Court of Justice

Krüsemann and Others v TUIfly

  • Lars Bay Larsen (president)
  • Jiří Malenovský (rapporteur)
  • Marek Safjan
  • Daniel Šváby
  • Michail Vilaras

 Counsel to TUIfly

  • Pesch & Kauffman