Judgment;Summary — ECLI:EU:C:2021:820
Date: 2021-10-06
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

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Translation C  -613/20 1 
Case C-613/20 
Request for a preliminary ruling 
Date lodged: 
18 November 2020 
Referring court: 
Landesgericht Salzburg (Austria) 
Date of the decision to refer: 
10 November 2020 
Applicant: 
CS 
Defendant: 
Eurowings GmbH 
  
ORDER 
The Landesgericht Salzburg (Regional Court, Salzburg), sitting as court of appeal 
[…] in the case between the applicant CS, […] […] and the defendant Eurowings 
GmbH, […] Düsseldorf, […], value in dispute EUR 250.00 plus interest and costs, 
hereby makes the following order in the appeal proceedings brought by the 
applicant against the judgment of 3 July 2020 of the Bezirksgericht Salzburg 
(District Court, Salzburg) […]: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 of the Treaty on the 
Functioning of the European Union (TFEU): 
1. Does a strike by an air carrier’s staff called by a trade union to pursue pay 
demands and/or social benefits constitute ‘extraordinary circumstances’ within 
the meaning of Article 5(3) of Regulation (EC) No 261/2004? 
EN 
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2. Would it at the very least: 
a) where staff of the subsidiary company come out in sympathy with a strike called 
against the parent company (Lufthansa AG) in order to support parent company 
cabin crew demands being pursued by the trade union, and 
b) in particular where the strike in the subsidiary company becomes an 
‘independent’ strike, after agreement has been reached with the parent company, 
because the trade union reiterates the call for and even extends the strike for no 
apparent reason and the cabin crew of the subsidiary company responds to that 
call? 
3. Does it suffice for the purpose of proving extraordinary circumstances that 
the operating air carrier claims that the [Or. 2] call for the strike was continued 
for no reason, as the parent company had met the demands of the trade union, and 
was ultimately prolonged by the trade union, and who bears the burden of proof 
where the precise reasons in fact for that have remained unclear? 
4. Can a strike in the defendant’s subsidiary company which was announced 
on 18 October 2019 for 05.00 to 11.00  on 20 October 2019 and which ultimately 
was spontaneously prolonged at 05.30  on 20 October 2019 to midnight be 
regarded as circumstances which are now beyond actual control? 
5. Are precautions in the form of an alternative flight plan and the use of 
subcharters for flights cancelled due to a lack of available cabin crew measures 
appropriate to the situation, taking account in particular of ‘water destinations’ 
not easily reached by land and the difference between German domestic flights 
and internal European flights and, in addition, the fact that only 158 out of a total 
of 712 flights scheduled for that day had to be cancelled? 
6. What requirements should be attached on the operating air carrier’s burden 
of assertion that all technically and economically viable measures were taken? 
II. The proceedings on the applicant’s appeal are stayed pending receipt of a 
preliminary ruling by the Court of Justice of the European Union. 
GROUNDS: 
1. Facts: 
The applicant booked a flight (flight number EW 8143) with the defendant from 
Salzburg to Berlin (Tegel) for 20 October 2019. The scheduled time of departure 
from Salzburg was 21.05. The scheduled time of arrival in Berlin was 22.15. The 
flying distance between the two cities is less than 1 500 km. The applicant was 
unable to board the flight as it had to be cancelled due to a strike (uncontested) by 
the defendant’s cabin crew. 
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The strike was organised by the trade union ‘UFO’ (Unabhängige 
Flugbegleiterorganisation e.V., Independent Flight Attendants’ Organisation). The 
strike came in the wake of pay negotiations with the defendant’s parent company 
(Lufthansa AG) [Or. 3]. In order to drive the negotiations forward and increase 
the pressure on the parent company, the strike was extended to staff of the 
subsidiaries (Sunexpress Deutschland, Lufthansa CityLine, Germanwings and 
Eurowings) on 18 October 2019. 712 of the defendant’s flights were affected on 
20 October 2019. The strike, which was originally limited to the morning (05.00 
to 11.00), was prolonged at very short notice on the same day to midnight. As the 
strike was prolonged, the flight plan prepared for that day could not be adhered to. 
Due to restructuring of the flight plan, the defendant had to cancel 158 flights, 
including the applicant’s flight. 
2. Forms of order sought and arguments of the parties: 
The applicant is seeking compensation of EUR 250 under Article 7(1)(b) of 
Regulation (EC) No 261/2004, as the cabin crew strike for which the defendant 
was to blame resulted in cancellation of the flight. The applicant claims that these 
were not extraordinary circumstances within the meaning of Article 5(3) of 
Regulation No 261/2004 (‘the Air Passenger Rights Regulation’) and that, on the 
contrary, the defendant was to blame. The applicant maintains that the strike was 
due to restructuring measures by the defendant and could have been avoided by it 
in good time by entering into the necessary negotiations and agreements. The 
applicant states that wage disputes are inherent in the normal operation of an air 
carrier. It claims that the agreement reached subsequently illustrates that the 
defendant could have settled the dispute and that the strikes were therefore caused 
by internal company decisions; and that strikes are inherent in the normal exercise 
of the defendant’s activity and the strike was not beyond its control. 
The defendant contests the claim and contends that the flight was cancelled due to 
extraordinary circumstances. It argues that the strike was called on 14 October 
2019 against Lufthansa AG alone, but was then extended to its subsidiary 
companies, including the defendant, on 18 October 2019. It states that the strike 
was originally called for 05.00 to 11.00 and that it was not until 20 October 2019 
that the trade union spontaneously, and without prior notice, prolonged it to 
midnight.  The defendant was advised accordingly at 05.30 on the same day, 
hence why the emergency plan for the original period was of no use. The 
defendant states that by using subcharters on the day in question, the defendant 
only had to cancel 158 out of the 712 flights affected and that it had taken all 
available measures and that the substitute flight plan was designed to minimise the 
inconvenience to all passengers. It adds that, Lufthansa AG had [Or. 4] conceded 
on 18 October 2019 and announced a 2% pay rise. The defendant adds that the 
warning strike at Lufthansa had been cancelled, whereas the strike at the 
defendant had gone ahead, even though there were no grounds for it. The 
defendant maintains that the strike was not therefore inherent in the normal 
operation of an air carrier, nor was it within the defendant’s control, in particular 
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as the extension of the strike to other companies and its prolongation constituted 
unavoidable extraordinary circumstances for the defendant. 
3. Previous proceedings: 
The court of first instance dismissed the forms of order sought. In light of the facts 
recounted above, it found that strikes that result in flight cancellations are to be 
regarded as extraordinary circumstances within the meaning of Article 5(3) of the 
Air Passenger Rights Regulation, which were beyond the defendant's control.  The 
court of first instance stated that, although, as the parent company, Lufthansa AG 
had met the demands, the strike had not only gone ahead, it had been extended; 
and that, as a subsidiary company of Lufthansa AG, the defendant was unable to 
achieve an agreement that was binding on the parent group. According to the court 
of first instance, despite the extension of the strike at short notice, the defendant 
had prepared an emergency plan. The prolongation of the strike shortly after it had 
begun was a circumstance beyond the defendant’s control. The court of first 
instance added that, although the strike had affected 712 flights that day, the 
defendant had managed to limit cancellations to 158 flights and thus the minimum 
possible. 
The applicant lodged an appeal against that judgment on the grounds that the court 
of first instance had made an incorrect finding in law. By the appeal, the applicant 
requests that the action be upheld in its entirety. 
[…] 
As the court of appeal, the Landesgericht Salzburg (Regional Court, Salzburg), 
now has to rule on the appeal [.] […] 
A further four appeals by which applicants are claiming compensation on 
precisely the same grounds are pending before the Regional Court, Salzburg. 
However, those actions were successful at first instance. Eurowings GmbH, which 
is also the defendant in those proceedings, requested by each of its appeals that 
judgment be varied so as to dismiss the actions or, in the alternative, that two 
questions on strikes as extraordinary circumstances be referred to the Court of 
Justice of the European Union for a preliminary ruling. [Or. 5] 
Legal assessment: 
4. Legal basis: 
Article 5(3) of the Air Passenger Rights Regulation states that an operating air 
carrier is not to be obliged to pay compensation in accordance with Article 7, if it 
can prove that the cancellation is caused by extraordinary circumstances, which 
could not have been avoided even if all reasonable measures had been taken. 
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Recital 14 of the Air Passenger Rights Regulation provides that obligations on 
operating air carriers should be limited or excluded in cases where an event has 
been caused by extraordinary circumstances that could not have been avoided 
even if all reasonable measures had been taken. Such circumstances may include 
strikes that affect the operation of an operating air carrier. 
5. Questions referred: 
The Court of Justice of the European Union clarified in Case C-195/17 that events 
may be classified as extraordinary circumstances within the meaning of 
Article 5(3) of the Air Passenger Rights Regulation if, by their nature or origin, 
they are not inherent in the normal exercise of the activity of the air carrier 
concerned and are outside that carrier’s actual control. The Court of Justice held 
that he circumstances referred to in recital 14 are not necessarily and 
automatically grounds of exemption from the obligation to pay compensation. It 
stated that it is necessary to assess, on a case-by-case basis, if the cumulative 
conditions are fulfilled, namely that the events, by their nature or origin, are not 
inherent in the normal exercise of the activity of the air carrier concerned and are 
beyond its actual control. It found that in light of the objective of the Regulation, 
which is to ensure a high level of protection for passengers, the concept of 
extraordinary circumstances must be interpreted strictly. According to the Court, 
when judging a strike, it is necessary to disregard whether or not the strike is legal 
under the relevant national law, in order to make an appraisal independently of the 
labour and wage legislation of each Member State. It found that restructuring and 
reorganisation of undertakings are part of the normal management of those 
entities. According to that judgment, the wildcat strike among the staff of the air 
carrier concerned, which had its origins in the undertaking’s surprise 
announcement of restructuring plans, was the manifestation of a risk inherent in 
the normal exercise of the activity of the air carrier concerned. [Or. 6] 
The Court’s answer to the question referred was that Article 5(3) of Regulation 
(EC) No 261/2004, read in the light of recital 14 thereof, must be interpreted as 
meaning that the spontaneous absence of a significant part of the flight crew staff 
(‘wildcat strikes’), such as that at issue in the disputes in the main proceedings, 
which stems from the surprise announcement by an operating air carrier of 
restructuring plans, following a call echoed not by the staff representatives of the 
company but spontaneously by the workers themselves who placed themselves on 
sick leave, is not covered by the concept of ‘extraordinary circumstances’ within 
the meaning of that provision. 
However, the Court still did not have to consider a case that is strongly marked by 
a situation that extends across a group of companies. Thus, the question arises as 
to whether and for how long it is inherent in the normal exercise of the activity of 
the air carrier concerned that staff of the subsidiary come out in sympathy with a 
strike called by a trade union against the parent company, in order to support pay 
demands of the parent company’s cabin crew being pursued by the trade union. 
This question arises in particular where the strike in the subsidiary company 
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becomes an ‘independent’ strike, after agreement has been reached with the parent 
company, because the trade union reiterates the call for and even extends the 
strike for no apparent reason and the cabin crew responds to that call. It follows 
from paragraphs 27 and 28 of the judgment of the Court in Case C-315/15 that 
events may be classified as ‘extraordinary circumstances’ if, by their nature or 
origin, they are not inherent in the normal exercise of the activity of the air carrier 
concerned and are outside that carrier’s actual control, both conditions being 
cumulative. The court of appeal concludes from the answers to the questions 
referred, taken together, that actual control is important not only in terms of 
whether the consequences can be avoided by taking appropriate measures, but also 
in terms of whether or not certain events are still inherent in the normal exercise 
of the activity of the air carrier concerned. 
It would appear from paragraphs 27 and 28 of the judgment of the Court in Case 
C-315/15 that the answer to the question of the burden of proof is that the 
operating air carrier bears the burden of proof both of the extraordinary 
circumstances and of the fact that they could not have been avoided even by 
measures appropriate to the situation. Appropriate measures means measures 
which, at the time those extraordinary circumstances arise, meet, inter alia, 
conditions which are technically and economically viable for the air carrier 
concerned. Furthermore, however, the question has not yet been answered as to 
whether it suffices, within the meaning [Or. 7] of that burden of proof and burden 
of raising an issue in its favour for consideration by the court (Behauptungslast, 
‘the burden of assertion’), that the defendant contends that, even though the parent 
company met the demands, the trade union reiterated the call for and ultimately 
even extended the strike. It should perhaps be noted in this context that the 
applicant complains that the defendant has said nothing about the reason for the 
strike and the concerns of the defendant’s staff. 
The referring court is of the opinion that excessive requirements should not be 
imposed on the defendant air carrier’s burden of assertion and proof in this 
context. Nor can that burden extend so far as to have to exclude all even remotely 
conceivable reasons that can be ascribed in the abstract to the air carrier as to why 
the trade union and the employees called out on strike insisted on striking. If the 
reason for a strike is because wage negotiations have stalled but agreement is then 
reached, there is no reason to reiterate the call for and extend the strike if no 
causes that can be ascribed to the defendant come to light in the process. 
In terms of the management of the strike by the parent company and the 
defendant, as its subsidiary company, it is reasonable to accept that, where 712 
flights are cancelled on one day, it is impossible to serve all routes and priorities 
must be set. It would therefore appear to be acceptable in principle to set priorities 
for the purpose of such restructuring, as argued by the defendant with reference to 
the need to minimise the inconvenience to all passengers. The applicant has 
challenged that approach, whereby just 158 flights were ultimately cancelled as a 
result of the restructuring, but without substantiation. 
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