ECJ: passenger compensation in case of unionized pilots' strike

Apr 7, 2021 Benn-Ibler Rechtsanwälte

In the case at hand, the European Court of Justice (ECJ) made a decision diametrically opposed to the Advocate General's opinion in a relatively rare case. This was triggered by a passenger's claim for compensation under the European Air Passenger Regulation after his flight had to be cancelled due to a strike by the pilots.

The airline refused because the circumstances were "exceptional" within the meaning of the regulation. According to the EU Advocate General, the airline would have been correct in its view. Only one week later, the ECJ now comes to the opposite conclusion.

In the past, the ECJ had not accepted exempting "extraordinary circumstances" in the case of a "wildcat strike" for which the airline was responsible (Krüsemann case law). In contrast, the present case involved a strike organized by the trade union. The Advocate General considered that this could indeed constitute an "extraordinary circumstance" within the meaning of the Regulation.

The ECJ did not follow this. The Court emphasized that the right to strike is guaranteed in Art. 28 of the European Charter of Fundamental Rights, so strike action is not an "unforeseeable" fact for employers.

In addition, the ECJ pointed out that, in principle, the employer has the means to prepare for strike action and thus to mitigate its consequences, so that the events remain to a certain extent controllable for the employer.

Exempting "exceptional circumstances", on the other hand, would - according to the Court - require that the employer has no influence whatsoever on the circumstances. This was not the case with strike action as in the present case.

The ECJ also found that the cause had been "internal" (strike by airline staff) and not "external" (e.g. strike by airport staff and damage to an aircraft by natural events or third parties).

ECJ, C-28/20, Opinion (16.03.2021)

ECJ, C-28/20, Judgment (23.03.2021)