Krüsemann ruling: pilot strikes are not extraordinary circumstances

The Helga Krüsemann and others v TUIfly GmbH ruling, delivered by the CJEU on 17 April 2018 (Joined Cases C-195/17, C-197/17 to C-203/17, C-226/17 to C-228/17, C-274/17, C-275/17, C-278/17 to C-286/17 and C-290/17 to C-292/17), is a serious blow to airlines: it closes the door on invoking internal strikes as an excuse.

The facts: the TUIfly wildcat strike

In October 2016, TUIfly announces a major restructuring. The reaction is immediate: thousands of employees (pilots and cabin crew) call in sick in a coordinated manner. It's a wildcat strike (wilder Streik in German), i.e. unannounced by a union.

The "sick" rate reaches 89% among pilots and 62% among flight attendants. Hundreds of flights are cancelled or heavily delayed. Tens of thousands of passengers are affected.

TUIfly refuses compensation invoking extraordinary circumstances. Passengers sue. The Hanover regional court refers several preliminary questions to the CJEU.

The decision: internal strikes remain a normal business risk

On 17 April 2018, the Court delivers a very clear ruling in several steps.

1. The classic test: externality + effective control

The Court first recalls the Wallentin-Hermann test: to be extraordinary, an event must be external to the normal activity of the carrier AND escape its effective control (paragraph 32).

2. Application: is a wildcat strike external?

The Court analyses the facts (paragraphs 36-44). A restructuring is a management decision of the airline. The staff's reaction to that decision (strike, collective sick-out) is a manifestation of internal social tensions, i.e. inherent to the employer-employee relationship.

The Court concludes at paragraph 41:

"A 'wildcat strike' triggered following a surprise announcement by an operating air carrier of a corporate restructuring [...] cannot be classified as 'extraordinary circumstances' within the meaning of Article 5(3) of Regulation No 261/2004."

3. Effective control: it caused the reaction itself

The airline cannot complain about consequences of a decision it took itself. The restructuring and the resulting strike are part of the same internal sequence (paragraph 43).

The Airhelp v SAS ruling (2021) — decisive extension

Three years later, the CJEU goes further with Airhelp Ltd v Scandinavian Airlines System Denmark - Norway - Sweden (23 March 2021, C-28/20).

The question: is a strike lawfully notified by a pilots' union, in the context of collective bargaining, an extraordinary circumstance?

Answer: NO. The Court holds (paragraph 41):

"A strike action initiated by a union of the staff of an operating air carrier, in compliance with the conditions laid down by national legislation, [...] does not fall within the concept of 'extraordinary circumstances'."

Three reasons:

1. The strike remains inherent to the activity of the airline (labour management).
2. The strike does not escape the effective control of the airline (negotiation, possible agreement).
3. The right to strike is a fundamental right, foreseeable in any economic activity.

Which strikes remain extraordinary?

Krüsemann + Airhelp case law draws a clear line:

Practical consequences for passengers

This case law is massive. Every major European airline has experienced internal strikes in the last decade: Air France, Lufthansa, KLM, Iberia, British Airways, Ryanair, easyJet… Each time, tens of thousands of passengers are affected. And each time, the airline tries to exempt itself by claiming "extraordinary circumstances."

This defence is now almost always rejected in national courts. Passengers should invoke Krüsemann + Airhelp in their claim.

Playbook

1. Verify the strike concerns the airline's own staff (pilots, cabin, mechanics, own ground staff).
2. Send a formal claim citing: "Under the Krüsemann ruling (CJEU, C-195/17) and Airhelp v SAS ruling (CJEU, C-28/20), a strike of the airline's own staff is not an extraordinary circumstance under Article 5(3) of Regulation (EC) 261/2004."
3. If refusal, seize the competent court or Robin des Airs.

Summary

If your flight was affected by an airline strike, check your right to compensation on our simulator or via WhatsApp.

Related articles

• Full CJEU case law on Regulation EC 261
• Wallentin-Hermann ruling: technical failure
• Extraordinary circumstances overview
• Airline strikes: your passenger rights