In a judgement on Tuesday 17 April, the European Court of Justice (ECJ) held that a ‘wildcat strike’ by flight staff following the announcement of a restructuring does not constitute an ‘extraordinary circumstance’ releasing the airline from its obligation to pay compensation to passengers affected by this action.
In 2016, the German airline TUIfly made a surprise announcement of a plan for restructuring the company. The flight staff subsequently placed themselves on sick leave. Between 1 and 10 October 2016, the rate of absenteeism on grounds of sickness reached up to 89% for cockpit crew and up to 62% for cabin crew. On the evening of 7 October 2016, an agreement was reached between management and staff representatives.
As a result of that ‘wildcat strike’, many TUIfly flights were cancelled or delayed for three hours or more. However, since TUIfly took the view that 'extraordinary circumstances', within the meaning of regulation 261/2004 on air passenger rights applied, it refused to pay the affected passengers compensation.
The Local Courts of Hanover and Düsseldorf, before both of which actions for payment of that compensation had been brought, filed a preliminary ruling with the Court of Justice on whether the ‘wildcat strike’ falls within the concept of ‘extraordinary circumstances’, as a result of which the airline could be released from its obligation to pay passengers compensation.
The Court does not believe so. It lays down that in order for an event to be classified as an ‘extraordinary circumstance’, it must not, by its nature or origin, be inherent in the normal exercise of the activity of the airline and it must be beyond its actual control.
First, the Court holds that restructuring is part of normal business management measures and can lead to social conflicts. Therefore, the risks arising from social consequences that go with such measures must be regarded as inherent in the normal exercise of the airline’s activity.
Secondly, the judges consider that the ‘wildcat strike’ at issue in the present case cannot be regarded as beyond TUIfly's actual control insofar as it stems from the restructuring decision.
The ECJ observes that whether a strike is legal or not should not affect air passenger rights to compensation because this would make the right to compensation of passengers dependent on the social legislation specific to each member state and would therefore undermine the objectives of regulation 261/2004. (Original version in French by Lucas Tripoteau)