No claim to damages for parties harmed by an unlawful strike?

BAG, judgment dated 25.8.2015 – 1 AZR 754/13
BAG, judgment dated 25.8.2015 – 1 AZR 875/13

Germany is currently experiencing a renaissance of the strike culture. Our economic processes are dependent on close interlinking between different companies, service providers and suppliers. This close interlinking makes the processes highly susceptible to disruption. In the past, this situation has been skillfully exploited for example by IG Metall, who – in order to protect the strike fund – has organized strikes at key suppliers with small workforces, in order to hit the automotive industry as a whole.

Today, we are witnessing how small trade unions representing specific professional groups are calling on their (limited number of) members to strike and causing enormous effects as a result. Here, pressure is also applied specifically on the employer through the fact that the strike affects a large number of persons (commuters, business travelers, holiday travelers, goods transport, supplies of goods to industrial customers etc.).

Strike as legitimate weapon in industrial disputes

A strike, i. e. the downing of tools as such, can trigger claims for damages on the part of those affected. A (lawful) strike is however justified under Art. 9 Subsection 3 Basic Law. In such cases, the trade union and the strikers are therefore protected against claims for damages. Even if the lawmaker has thus far not found the energy to regulate these questions, the case law of the BAG (Federal Labor Court) and BVerfG (Federal Constitutional Court) has been clear for decades. An unlawful strike does not enjoy this protection. It can be forbidden by a court and results in obligations of the trade union and the strikers to provide damages – at least with respect to the victims of the strike.

BAG: No damages for third parties affected

In two decisions dated August 25, 2015, the BAG has now rejected a claim to damages for companies affected by an unlawful strike against another company. In one of the two cases, the air traffic controller union (GdF) had gone on strike at Stuttgart airport, with the result that numerous flights of various airlines were cancelled. In the second case, the GdF had announced a strike. The mere announcement resulted in a fall in bookings and flights were cancelled. In both cases, the strikes were stopped or forbidden completely by court decisions. Both cases thus constituted unlawful withdrawal of labor. In a press release (the precise reasons are not yet available), the BAG rejects interfer-ence in the commercial operations of the airlines concerned. In each case, the strike by the GdF was aimed solely at the German Air Traffic Control Service (DFS).

Summary

The decisions of the BAG give rise to questions. Should a decisive factor in terms of the obligation to pay damages really be whether the trade union directed its strike only against the DFS or also against airline companies and travelers? Particularly in the case of air traffic controllers, a strike necessarily impairs air traffic. It may be worth considering protecting trade unions against existential angst in this way. However, any such privileging of liability is alien to the system and would necessitate legislative intervention. Privileging of liability would only be acceptable if accompanied by a restriction of the right to strike – for example as in Italy -, and periods of advance notification and emergency services would have to be ensured. As the law stands however, this privileging of trade unions is not apparent.