On 17 April 2018, the Court of Justice of the European Union held its judgment in case Krüsemann and Others, stating that the spontaneous absence of a significant part of the flight staff, which stems from the surprise announcement by an operating air carrier of a restructuring of the company, does not fall within the concept of ‘extraordinary circumstances’.

In September 2016 the German airline TUIfly made a surprise announcement to its staff of a plan for restructuring the company that led to flight staff placing themselves on sick leave for a period of approximately one week. As a result of that ‘wildcat strike’, many TUIfly flights were cancelled or delayed for three hours or more. Taking the view that ‘extraordinary circumstances’, within the meaning of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, prevailed, the airline refused to pay the affected passengers the compensation provided for therein. The Amtsgericht Hannover and the Amtsgericht Düsseldorf (Local Courts of Hanover and Düsseldorf), before both of which actions for payment of that compensation had been brought, asked the Court of Justice whether the spontaneous absence of a significant part of the flight staff in the form of a ‘wildcat strike’ such as that in question falls within the concept of ‘extraordinary circumstances’, as a result of which the airline could be released from its obligation to pay compensation.

The Court has observed that the Regulation lays down two cumulative conditions for an event to be classified as an ‘extraordinary circumstance’:

  • the event must not, by its nature or origin, be inherent in the normal exercise of the activity of the airline;
  • the event must be beyond the airline’s actual control.

In the case at issue, the Court has found that restructuring and reorganising activities are part of normal business management measures and, therefore, airlines may, in the ordinary course of business, face disagreements or conflicts with all or part of their members of staff. Moreover, according to the Court, the ‘wildcat strike’ at issue cannot be regarded as beyond TUIfly‘s actual control since it stem from a TUIfly decision and it ceased as a result of the agreement reached by TUIfly with the staff representatives in October 2016.

Therefore, the Court has concluded that the ‘wildcat strike’ at issue does not fall within the notion of ‘extraordinary circumstances’, as a result of which the airline could have been released from its obligation to pay compensation.