Order;Information — ECLI:EU:C:2022:1
Date: 2022-01-10
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

summary): 
1 The fact, in the context of a collective bargaining dispute, that a trade 
union calls on an air carrier’s pilots to stop work may give rise to 
extraordinary circumstances within the meaning of Article 5(3) of the 
Air Passenger Rights Regulation. 
2 In that event, the air carrier is exempt from the obligation to pay 
compensation for the cancellation of flights which it takes out of service 
RYANAIR DESIGNATED ACTIVITY COMPANY 
 
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in order to adjust its flight schedule to the impact which the calling of 
the strike is expected to have.  
The Bundesgerichtshof (Federal Court of Justice) gave, inter alia, the following as 
the reasons for its decision (paragraph 25 et seq.): 
‘The defendant’s reliance on extraordinary circumstances is not precluded because 
the situation was within the defendant’s control. 
As a rule, a situation the controllability of which precludes the existence of 
extraordinary circumstances cannot be assumed to be present in the case of a 
collective bargaining dispute. The decision to go on strike is taken by workers 
within the framework of the autonomy which they enjoy in the collective 
bargaining process, and thus outside the running of the operating air carrier. It 
follows that the air carrier does not usually have any legally significant leverage, 
even among its own employees, over whether or not strike action is taken. In that 
connection, the argument that, in the case of internal strikes, an air carrier has it 
within its gift to meet the demands made and thereby avert a strike, is untenable. 
If that were the case, the air carrier would be required to forgo its freedom of 
association, which is protected by EU law, and to start from a weaker position in 
any industrial dispute. This would be neither reasonable on the air carrier nor in 
the longer-term interests of passengers’. 
Positions of the parties 
17. The applicants take the view that a strike by an air carrier’s own cabin crew does 
not [Or. 6] constitute ‘extraordinary circumstances’ within the meaning of 
Article 5(3) of Regulation (EU) No 261/2004. In their opinion, any collective 
bargaining process must allow for strike action, and thus for the non-operation and 
cancellation of flights too: this is a typical event that is to be expected in the 
course of business, and not an extraordinary occurrence’. 
18. The defendant takes the view that a trade-union-organised strike constitutes 
extraordinary circumstances whether or not the striking staff are employees of the 
operating air carrier. At no point does Regulation (EC) No 261/2004 draw a 
distinction between strikes held by employees and those held by third parties.  
Provisional opinion of this court 
19. The referring court assumes that the answer to the question referred for a 
preliminary ruling is likely to be ‘no’.  
20. The court construes the judgment of the European Court of Justice of 17 April 
2018 (C-195/17) as meaning that a passenger’s right to compensation is not 
intended to depend on whether or not a strike is lawful in accordance with the 
relevant national employment and collective bargaining legislation; rather, the 
only events that are to be regarded as extraordinary circumstances within the 
REQUEST FOR A PRELIMINARY RULING OF 16. 6. 2020 – CASE C-287/20 
 
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meaning of Article 5(3) of Regulation (EC) No 261/2004 are those which, by their 
nature or origin, are not inherent in the normal exercise of the activity of the air 
carrier and are beyond its actual control. 
21. This court suspects that, if the European Court of Justice considers even a ‘wildcat 
strike’ to be a controllable event, it will certainly regard a trade-union-organised 
strike by an undertaking’s own employees as being controllable (by means, for 
example, of an agreement which the air carrier reaches with the trade union 
concerned), with the result that ‘extraordinary circumstances’ are likely not to be 
present. 
22. On the other hand, the referring court also considers it possible that the European 
Court of Justice could take a different view of a trade-union-organised strike, 
since the latter, unlike a ‘wildcat strike’, is protected by EU law and by 
Articles 12(1) and 28 of the Charter of Fundamental Rights, and that an 
interpretation of the [Or. 7] judgment of 17 April 2018 (C-195/17) as also 
applying to trade-union-organised strikes may therefore be precluded. The right to 
strike guaranteed in Article 6(4) of the European Social Charter – as is clear from 
the opening sentence of that provision and the heading under Part I, paragraph 6, 
of the Charter – also operates in the interests of the right to take – coordinated – 
collective action. That right is, after all, expressly recognised ‘with a view to 
ensuring the effective exercise of the right to bargain collectively’. Contrary to the 
assumptions in paragraphs 19 to 21 [above], therefore, the European Court of 
Justice might proceed from the premiss that a transposition of its case-law to 
trade-union-organised strikes would constitute an infringement of EU law – a fact 
which, if true, might be open to inference from recital 14 of Regulation (EC) 
No 261/2004, which refers to strike action generally as ‘extraordinary 
circumstances’ – albeit primarily inasmuch as such transposition would – in effect 
at least – constitute an interference with the air carrier’s freedom of association, 
which is protected by EU law. 
Status of the proceedings 
23. The outcome of the dispute depends on the answer to the question referred for a 
preliminary ruling: the court may otherwise give a ruling on the dispute on all 
points of fact and law. In so far as this court, in setting out the subject matter of 
the dispute (paragraphs 3 to 7), has presented the matter in issue as findings of 
fact, it has already formed a definitive view in that regard. 
24. […] [Matters of national procedure] 
[…] [Signature]