The Federal Court of Justice recently published a ruling (X ZR 111/17) that a strike is only considered an extraordinary circumstance, in line with Article 5 (3) of the EU Flight Delay Compensation Regulation 261/2004, if the consequences cannot be prevented using reasonable measures, making cancellation a legal necessity.
The new ruling comes as the result of a case that the Federal Court recently presided over. It is believed that the plaintiff requested compensation from the air carrier (defendant) in line with the Articles 5(1)(c) and 7(1)(b) of the EU Regulation 261/2004.
Allegedly the plaintiff had booked a flight, along with his wife, from Hamburg to Lanzarote, Spain. However, the security staff in Hamburg decided to go on a strike on the day of the departure. This caused overcrowding, and the passengers were forced to wait at the security checkpoint.
Though the plaintiff and his spouse made it past the security check, they could not board the flight as it was cancelled. The flight was sent back to Lanzarote.
When questioned, the carrier responded by saying that many of the passengers did not make it through security and that the strike itself was a security risk since the screening capacity had been reduced.
The airline stated that the flight plan could not be maintained since the security check staff were not carrying out their duty correctly due to the strike.
However, the claim was dismissed by the Hamburg Regional Court and the Hamburg Local Court. The courts argued that security checks were an integral part of a carrier’s operations and that strikes weren’t a good enough excuse.
The courts also mentioned that security risks are already assumed when abstract threats are imagined.
The Federal Court of Justice revoked the ruling and sent the case back to the Hamburg Regional Court.
The Federal Court of Justice also determined that a strike carried out by security check staff can be considered as an extraordinary circumstance. The court also mentioned that air carriers could not carry out these checks.
Even so, according to the court, the cancellation of the flight can only be attributed to extraordinary circumstances when the strike leads to consequences that cannot be stopped using reasonable measures or make the cancellation a necessity.
In this case, the cancellation was unnecessary, since some of the passengers had managed to complete the security check. In other words, if every single passenger were unable to clear the security check, it would have amounted to an extraordinary circumstance.
The court determined that an intellectual apprehension of a security threat is an insufficient reason to cancel a flight. The air security authorities must adopt and implement new and unique measures during such strikes.
The Federal Court’s decision emphasises the fact that the “extraordinary circumstance” claim often used by carriers needs to be determined and judged on a case by case basis. Courts must determine whether or not a cancellation or delay was unavoidable.