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30 January 2019
In a recently published decision (X ZR 111/17), the Federal Court of Justice declared that a strike is considered an extraordinary circumstance pursuant to Article 5(3) of the EU Flight Delay Compensation Regulation (261/2004) only if its consequences cannot be averted by reasonable measures and make flight cancellation legally and actually necessary.
The plaintiff claimed compensation from the defendant air carrier pursuant to Articles 5(1)(c) and 7(1)(b) of the EU Regulation 261/2004 due to a flight cancellation.
The plaintiff and his wife booked a flight from Hamburg to Arrecife (Lanzarote, Spain). On the day of departure, Hamburg airport security check staff went on strike. The airport was overcrowded and many passengers had to wait at the security checkpoint. The plaintiff and his wife had passed the security checks in time for departure, but the air carrier cancelled the flight and transferred the aircraft to Arrecife without any passengers.
In its reasons for the cancellation, the airline stated that numerous passengers had not made it through the security check. The strike also posed a security risk due to reduced security screening capacity. The airline argued that the maintenance of the flight plan had forced security check staff to perform security checks hastily, leading to a security risk.
The Hamburg Local Court and the Hamburg Regional Court dismissed the claim. The courts argued that security checks are an essential part of air carriers' operations and that strikes are therefore an extraordinary circumstance in principle. A security risk exists as soon as an abstract danger is imaginable.
The Federal Court of Justice revoked the judgment and referred the case back to the Hamburg Regional Court.
The Federal Court of Justice determined that, in principle, a strike by security check staff is an extraordinary circumstance. Air carriers cannot perform security checks themselves, as this is a sovereign task. However, the cancellation of a flight can be attributed to extraordinary circumstances only if a strike leads to consequences that cannot be averted by reasonable measures and make the cancellation legally and actually necessary.
The fact that many passengers did not pass the security check in time and therefore did not reach the flight had not in itself led to the need for the cancellation. The cancellation would have been necessary only if all passengers had not been able to pass through the security checks in time.
According to the court, an abstract apprehension of a security risk is insufficient grounds to cancel a flight. As the air security authorities are responsible for security checks, they must adopt special measures during strikes (eg, closing security check points).
This decision emphasises that determining whether airlines can avoid liability due to extraordinary circumstances must be assessed on a case-by-case basis. Once extraordinary circumstances have been determined, the courts must examine whether the cancellation was necessary because of those circumstances.
For further information on this topic please contact Sophia Iwantscheff or Susan Weltz at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org or email@example.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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