Arnecke Sibeth Dabelstein

Frankfurt am Main

ARNECKE SIBETH DABELSTEIN is an independent law firm with 40 partners and more than 150 attorneys at six locations (Frankfurt, Munich, Hamburg, Berlin, Leer and Dresden). It ranks among the top legal service providers in Germany.

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Updates

Aviation

Aircraft passenger rights under wet lease agreements
Germany | 10 October 2018

The Hamburg Regional Court recently referred to the European Court of Justice (ECJ) the question of which air carrier is the operating air carrier within the meaning of EU Regulation 261/2004 where the flight is operated under a wet lease agreement. The ECJ confirmed that air carriers which lease aircraft and crew to other air carriers under a wet lease agreement but bear no operational responsibility for the flights are not covered by the concept of 'operating air carrier' within the meaning of the regulation.

Airline denied compensation for costs caused by carriage of sky marshals
Germany | 03 October 2018

The Federal Court of Justice recently denied a claim for compensation regarding costs relating to the duty of German airlines to carry sky marshals, who are entrusted with the security of certain flights based on specific security considerations and by decree of the federal police. While the court's argument was legally stringent, it lacked sustainable reasoning as to why airline cost and security obligations should be more important than those of other transport means or sectors.

German drone regulation superseded by new EU aviation safety rules
Germany | 12 September 2018

A new European Council regulation provides basic rules for civil aviation security across EU member states. Such clarification is welcome news for Germany, where previously only fragmented rules and regulations on lighter unmanned aircraft and drones existed. However, as the EU regulation fails to address every issue relating to drone safety, Germany's existing drone regulation will continue to apply where no new rules are implemented or where Germany remains the competent authority.

Federal Constitutional Court rejects complaints against night flight regulations
Germany | 29 August 2018

The Second Chamber of the First Senate of the Federal Constitutional Court recently rejected three constitutional complaints for adjudication against the Federal Administrative Court's decision concerning night flight regulations affecting Berlin Schoenefeld Airport. In its decisions, the Federal Constitutional Court appropriately weighed the legal interests of affected property owners with those of the general public.

New package travel law affects air carriers
Germany | 08 August 2018

Germany recently implemented the EU Package Travel Directive by updating its travel legislation in the Civil Code. The new law provides that anyone offering at least two travel services is considered a 'package organiser'. The new regime applies to traditional tour operators and air carriers, which may be regarded as package organisers if they offer travel services in addition to flights. Air carriers should review their travel offers to avoid any unexpected obligations and liability.

Aircraft repossession in Germany
Germany | 11 July 2018

Although aircraft repossession is used only as a last resort, it remains unfortunately inevitable in some cases. Under German law, there are no self-help rights available to owners in order to take possession of an aircraft. It is possible to obtain interim injunctions or arrest orders before the German courts; however, those require a substantial amount of time to prepare court documents, as the entitlement to the claim must be shown to be prima facie.

Extended rights for passengers of connecting flights outside EU territory
Germany | 04 July 2018

A recent European Court of Justice decision presents a major change of case law in Germany with regard to the applicability of EU Regulation 261/2004 to connecting flights departing from an airport situated outside an EU member state. The decision has countered the longstanding position of the Federal Court of Justice, which held that the applicability of the regulation to each flight should be examined separately, even if the flights were operated by the same airline and were booked together.

No compensation for missed flight due to security check delays
Germany | 27 June 2018

In its latest decision, the Federal Court of Justice has reiterated that passengers are responsible for their own schedules and must allow sufficient time for airport security checks. The decision may lead to more flexible case-by-case judgments and suggests that airports, airlines and the state are not solely responsible for losses incurred from delays at airport security, but that every passenger has their own obligations and responsibilities.

Regional court prohibits HolidayPirates' error fare alerts
Germany | 13 June 2018

The Munich Regional Court recently addressed the promotion of error fares by an online portal for cheap flights, hotels and travel packages in Germany. The promotions, which had encouraged customers to book error fares for flights published accidentally by airlines, were deemed unlawful due to a deliberate obstruction of competition in contravention of the Act Against Unfair Competition. The court's decision is appropriate considering the high number of consumers reached by online portals.

Passenger rights and information obligations under wet lease agreement
Germany | 09 May 2018

The Federal Court of Justice recently clarified the liability of airlines with respect to passenger rights and information obligations when a flight is operated under a wet lease. EU Regulation 261/2004 defines an 'operating air carrier' as an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person having a contract with that passenger. The Federal Court of Justice held that in case of a wet lease, the lessee must be regarded as the operating air carrier.

Passenger's right to refund restricted
Germany | 18 April 2018

The Federal Supreme Court recently issued a decision regarding the right to a refund of the ticket price following the cancellation of non-refundable tariffs. The decision highlights that a passenger can waive his or her right to cancel a ticket so long as that passenger makes an informed decision. This secures an air carrier's flexibility in offering a wide range of different ticket prices and ensures lively competition.

VAT regarding international passenger transport services
Germany | 14 March 2018

In Germany, a carrier is, in general, value added tax (VAT) liable along the domestic part of the flight route. However, it is possible for the carrier to apply for VAT remission according to the VAT Act. If the carrier is a German entity, the remission applies without further requirements other than an invoice without VAT. In contrast, if the carrier is a foreign entity, the tax relief must be mutual (ie, the state of the registered office of the foreign carrier must grant tax relief to German carriers as well).

Police begin using drones
Germany | 14 February 2018

The State of Hesse has decided to implement the use of drones. For this purpose, the police acquired four drones to help with their work in the region starting in February 2018. In order to operate the drones, each of the eight future drone pilots must complete a two-week workshop containing theoretical and practical modules. The drones will be used at accident sites and crime scenes in particular.

Court rejects complaints against new airport's planned flight routes
Germany | 20 December 2017

The Federal Constitutional Court recently rejected four constitutional complaints for adjudication against a decision concerning Berlin-Schoenefeld Airport. Following a deviation from the airport's originally envisaged flight routes, the plaintiffs had sought an annulment of the original plan approval order. The court held that the difference between the planning procedures for the airport expansion and the determination of the flight routes raised no constitutional concerns.

Unaffected flights cannot be used in calculation of compensation payments
Germany | 06 December 2017

A recent Erding Local Court case called into question the distance that must be taken into consideration when calculating compensation according to Article 7(1) of EU Regulation 261/2004. The court interpreted Article 7 in line with settled case law and held that only the disrupted flights that had affected the overall delay of the passenger should be included in the calculation of the distance. Therefore, where a reservation consists of several flights, these are to be considered separately.

No compensation for rescheduling airway slot
Germany | 29 November 2017

In a recent case, the Cologne Regional Court ruled that if the flight in question was delayed due to a Eurocontrol rescheduling of its airway slot, passengers had no right to compensation pursuant to EU Regulation 261/2004, irrespective of whether the rescheduling was based on reasons which, when considered individually, would result in extraordinary circumstances.

Will Berlin Tegel Airport remain open?
Germany | 18 October 2017

A recent non-binding referendum asked Berlin citizens whether they should demand that the Senate give up its closure intentions and take all measures necessary to ensure the indefinite operation of Berlin Tegel Airport. The vote indicates that approximately 56% of Berliners voted 'yes' and support keeping Tegel open. Local politics must now find a way to deal with Berlin's wish to maintain two airports.

No compensation for cancellation after re-routing
Germany | 20 September 2017

The Dusseldorf Local Court recently decided that passengers do not have a right to compensation if, according to the meaning of Articles 7(2) and 8 of EU Regulation 261/2004, an alternative flight is cancelled. The court argued that the regulation differentiates between a 'flight' as subject of the transportation contract and an 'alternative flight' as a measure of assistance. Consequently, the cancellation or delay of an alternative flight gives no right to compensation.

ECJ upholds passengers' rights over additional fees
Germany | 06 September 2017

The Berlin Regional Court recently upheld the application of a private German association for the advancement of consumer rights, which claimed that a German air carrier's online booking system had violated EU Regulation 1008/2008. Following the dismissal of the appeal brought by the carrier before the Berlin Upper Regional Court, the airline lodged a remedy of review before the Federal Court of Justice, which stayed the proceedings and referred the case to the European Court of Justice for a preliminary ruling.

Credit card surcharges for flight bookings banned
Germany | 09 August 2017

Parliament recently passed an act incorporating the EU Payment Services Directive into German law. In line with the development of cashless currency being among the most frequently used payment methods, the act was passed to facilitate the use of electronic payment methods. To achieve a level playing field for all market participants, the act will also have a considerable impact on the aviation industry. Nowadays, online bookings via credit card are airlines' daily business.

IATA – new restrictions for air transport of lithium batteries
International | 26 July 2017

The International Air Transportation Association (IATA) Dangerous Goods Regulations – the only standard recognised by airlines – contain the globally applicable provisions for shipping dangerous goods by air. A violation of the regulations might lead to criminal proceedings and infringements are a notifiable fact to be reported to the competent authority. In order to assist shippers in understanding the complete requirements, IATA has prepared the Lithium Battery Shipping Guidelines.

Drones – required and advisable insurance
Germany | 05 July 2017

According to the amended Air Traffic Act, drones are recognised as aircraft. However, only unmanned aerial systems (UAS) that are not used for hobby or recreational purposes qualify as aircraft. Authorisation to fly will be granted if operation of the UAS does not present a risk to air safety or order and if rules on data protection and privacy are not violated. The main prerequisite for obtaining a flight permit is the coverage of the respective risks by liability insurance.

Airport directly liable for passenger missing flight due to slow security checks
Germany | 12 April 2017

The plaintiff in a recent case claimed reimbursement from Munich Airport, claiming that it had caused him to miss his flight due to a slow security check. The Erding Local Court held that airport staff must proactively open further lanes in security and urge passengers who are in danger of missing their flights to move along the queue. However, the court also noted that the plaintiff should have left the queue and drawn attention to the approaching boarding time as soon as he risked missing his flight.

New regulation on drones planned in Germany
Germany | 22 March 2017

The use of drones, whether for private or commercial use, is a rapidly developing trend. The use of unmanned airspace causes potential risks, but other legally critical aspects relating to privacy, security and the environment must also be considered. The government recently introduced a draft regulation to create sufficient regulations to deal with these risks by amending the existing fragmented provisions and establishing rules to liberalise the commercial use of drones.

New information duties for air carriers according to Consumer ADR Act
Germany | 15 March 2017

As of February 1 2017 companies and entrepreneurs, including air carriers, must comply with new information duties with regard to alternative dispute resolution (ADR). While ADR participation is voluntary, a peculiarity applies for air carriers. According to the Air Traffic Act, airlines are obliged to participate in ADR. If an air carrier does not voluntarily join the private conciliation body, it must participate in the government ADR process.

Rules determining passenger reimbursement due to downgrading
Germany | 22 February 2017

The European Court of Justice (ECJ) recently decided on the interpretation of EU Regulation 261/2004 and the calculation of a reimbursement owed to a passenger who was downgraded on a flight from first class to business class. The ECJ decided that the regulation must be interpreted as meaning that where a passenger is downgraded on a flight, the price for determining reimbursement is the price of the flight on which the passenger was downgraded.

Expiration of two-year period not suspended if legal action filed with non-competent court
Germany | 25 January 2017

The Berlin Regional Court recently decided a case in which the plaintiff claimed compensation for damages that were said to have occurred during air transport. The plaintiff had filed a legal action at his home court in Hamburg, but the matter was referred to a Frankfurt court because Frankfurt Airport was involved. However, the Frankfurt court was also not competent to hear the case. The Berlin Regional Court received the case after the expiration of the two-year limitation period under the Montreal Convention.

Validity of vouchers given as goodwill gesture may be limited to one year
Germany | 21 December 2016

The Frankfurt Local Court recently decided that an airline may restrict the validity of ticket vouchers given as a goodwill gesture. Following a delayed arrival, the defendant offered the plaintiff a free round-trip ticket voucher valid for one year. The plaintiff was unable make use of the voucher within the year, so requested that it be extended. The defendant refused. As the voucher's time limit was part of the agreement, the plaintiff was unable to claim damages from lack of use.

Property irregularity report insufficient as timely notice of delayed baggage complaints
Germany | 02 November 2016

According to a recent Frankfurt Local Court decision, a property irregularity report filed in the case of delayed baggage does not suffice as a timely notice of complaint, as set out in the Montreal Convention. The court ruled that a property irregularity report informs the airline only about missing baggage, and not about the expected claim for damages.

Compensation for damages caused by strike in violation of industrial peace obligation
Germany | 24 August 2016

The Federal Labour Court recently confirmed earlier judgments denying compensation to a third party as a consequence of a strike. Through this latest decision, the court has strengthened its jurisdiction by denying compensation to third parties affected by unlawful strikes. In addition, the court has clarified that a strike becomes unlawful in total even if only a part of its goals violate the industrial peace obligation.

Drones: only hot air? Status of activities in logistics market
Germany | 10 August 2016

A number of projects and applications for drone use in transportation and delivery are underway, including by Deutsche Post DHL, which recently completed a three-month test period using a parcelcopter for business-to-customer and customer-to-customer parcel delivery. Plans are also underway to create specialised ground-based drones, and survey results have shown that approximately 13% of customers have a specific interest in drone delivery.

Tax treatment of free or discounted flights granted by air carriers
Germany | 27 July 2016

Air carriers that grant free or discounted flights to employees provide a monetary benefit that is subject to wage tax. The tax basis for these staff flights is the usual final price reduced by the regular discount granted at the place of issue. The supreme tax authorities recently issued new averages for air mileage for 2016 to 2018. The averages apply if no restrictions exist in the reservation status.

Burden of proof regarding airline booking acceptance lies with passenger
Germany | 29 June 2016

The Frankfurt Local Court recently decided that a passenger's claim for compensation pursuant to EU Regulation 261/2004 requires an accepted reservation by the airline. Passengers have no right to compensation if the airline has not accepted the reservation and the travel agency has issued incorrect booking confirmation. The burden of proof regarding the airline's booking acceptance rests with the passenger.

New legislative framework for civil drones in Germany?
Germany | 08 June 2016

Due to the fast-growing number of drone operations, the minister of transport recently announced the revision of the rules governing the use of civil drones in Germany. According to the minister, such use is not sufficiently regulated. The envisaged rules aim to reduce hazards in the airspace and on the ground, while new legislation is being drafted for commercial and private drone use.

Flight distance relevant to amount of compensation
Germany | 18 May 2016

The Landshut Regional Court recently dealt with the issue of calculating distance relevant to the amount of compensation pursuant to EU Regulation 261/2004. The court ruled that the decisive factor in determining compensation is the immediate distance between the point of departure of the delayed flight and the passenger's final destination. Possible flight routes to and from transit airports should not be considered.

Federal Fiscal Court rules on taxation of German-resident pilots
Germany | 04 May 2016

The Federal Fiscal Court ruled on the taxation of pilots resident in Germany working for an Austrian carrier on board aircraft that are operated internationally. The court had to decide whether, and if so in what proportion, the salary of a pilot living in Germany must be taxed under the double taxation agreement between Austria and Germany based on either the exemption method or the imputation method.

Federal Fiscal Court approves air traffic tax
Germany | 30 March 2016

Commercial passenger flights departing from German airports have been taxed since the implementation of the Air Traffic Tax Act in 2011. The tax is set according to the flight destination and the number of passengers transported. According to the legislature, the act is supposed to create incentives for environmentally friendly behaviour. The Federal Fiscal Court recently confirmed that the tax is in line with the Constitution and EU law.

Air carriers can demand full air-fare payment at time of booking
Germany | 23 March 2016

It has been widely debated whether an air carrier is legally allowed to claim full payment of the ticket price from a passenger as early as at the time of the flight booking. The Federal Court of Justice recently decided on three cases brought by a consumer association against two domestic carriers. It held that a pre-payment clause would not present an unreasonable disadvantage to the passenger and would not be contrary to the fundamental principles of law.

Airline not obliged to reschedule connecting-flight departure
Germany | 10 February 2016

The Dusseldorf Regional Court recently ruled that if a flight is delayed due to severe weather conditions and a connecting flight is missed as a result, passengers have no right to compensation because the extraordinary circumstances defence applies. The court does not regard the frequency of severe weather conditions as a decisive factor with regard to extraordinary circumstances.

Berlin's new airport: an endless story?
Germany | 27 January 2016

Berlin's new international airport is likely to face further delays due to the insolvency of Dutch engineering group Royal Imtech's German division and problems with the construction of the new roof, which led to an immediate halt in building. Even though construction has resumed, rumours remain that further postponement of the start date for airport operations in mid-2017 will be required due to ongoing difficulties.

No damages to third party after unlawful strike?
Germany | 14 October 2015

The Federal Labour Court recently denied compensation to a third party as a consequence of a strike. The court dismissed a complaint from four airlines against a strike which had been initiated by the trade union due to cancelled, delayed or redirected flights. The court clarified that in the case of an unlawful strike against an employer, the trade union can be held liable for damages caused. Further developments are anticipated.

Last call for airline energy audits – is your airline compliant?
Germany | 07 October 2015

Germany has recently transposed the EU Energy Efficiency Directive into national law. Affected airlines must undergo an energy audit by December 5 2015. For airlines operating flights to and from Germany, fuel consumption must be taken into account. Airlines which fail to carry out or perform an energy audit (or which do not conduct it properly, completely or in time) may be fined up to €50,000.

Does the Minimum Wage Act affect foreign airlines?
Germany | 13 May 2015

The Minimum Wage Act lacks an answer to the question of whether it applies to foreign airline personnel who are not based in Germany. The wording suggests that crews are entitled to the German minimum wage when deboarding and boarding passengers, but the act does not apply in certain cases. The act remains open for interpretation and case law has yet to be established.

No jurisdiction for German courts over flights booked via German website
Germany | 28 January 2015

The Frankfurt Regional Court recently dismissed a claim on grounds of inadmissibility. The German plaintiff booked flights with a non-European airline with a local office in Frankfurt via the German-language pages of the airline's international website. The court clarified that the German version of an international website does not create the impression that a contract has been necessarily concluded with the local office.

Landmark first-instance decision for non-community carriers
Germany | 26 November 2014

The Hamburg Local Court has recently ruled on a case where passengers missed a connecting flight outside the European Union because the feeder flight from Germany to the airline's hub outside the European Union was delayed. The court stated that it makes no sense to treat cases in which a community carrier operates both flights differently from those in which the operating carrier for both flights is not a community carrier.

Air Traffic Tax Act before the Constitutional Court
Germany | 30 July 2014

The Constitutional Court's first senate recently heard a case on the constitutionality of the Air Traffic Tax Act. The purpose of the air traffic tax is to generate €1 billion of revenue annually to create a steering effect towards more environmentally friendly behaviour in the aviation industry. The court admitted that the tax presents a financial burden to airlines. However, this is not enough to regard the act as unconstitutional.

Tour operators' terms and conditions regarding flight times
Germany | 11 June 2014

The Federal Court of Justice recently deemed two clauses in the terms and conditions of a tour operator regarding flight time changes to be invalid. The court found the clauses to be unreasonable to the traveller. However, it did not determine what a valid clause would look like or what a reasonable timeframe for amendments to flight times would be.

Online bookings – when and how must final prices be indicated?
Germany | 30 April 2014

In a recent case, the Federal Court argued that EU Regulation 1008/2008 does not specify an exact time when the final price of air services must be indicated when booking on a computerised booking system. The regulation aims to enable consumers to effectively compare prices of different air carriers. The provision is meant to guarantee information and transparency and strengthen consumer protection.

Application for refund of energy tax
Germany | 05 March 2014

The Energy Tax Law provides that fuel supplied to commercial aircraft may be granted tax-exempt status. However, Germany is the only EU country in which exemption is not automatically granted to all commercial flights. Instead, customs permits are expressly required. Recent audits of EU air carriers have shown that airline accounts departments are often unaware of the need to apply for an exemption from the tax.

Times are changing for tour operators – but not passengers
Germany | 29 January 2014

The Federal Court of Justice recently deemed two clauses in the general terms and conditions of a tour operator regarding flight time changes to be invalid. The defendant tour operator's terms and conditions stipulated that the determination of flight times rested with the tour operator issuing the travel documents. The court deemed the clauses invalid, as they put passengers at an unfair disadvantage.

German pilots' union Cockpit protests against adjustment of flying times
Germany | 13 November 2013

The European Commission has issued new proposals in relation to the planned harmonisation of regulations governing flight duty hours and resting times. German pilots' union Cockpit believes that the decision will jeopardise safety in favour of monetary interests. Cockpit has protested against the adjustment of flying times and has indicated that it is considering taking legal action in this regard.

Flight routes still under dispute at Rhein-Main Airport
Germany | 18 September 2013

The Kassel Higher Administrative Court recently announced its ruling on claims filed by local government authorities and inhabitants of South and Rhine Hessen affected by the decision in favour of a southerly bypass. The court ruled that independent operation of the southerly bypass by means of a radio navigation system was not feasible and there was no evidence that it would become feasible in the foreseeable future.

Compensation for delay resulting in missed flight connections
Germany | 07 August 2013

The Federal Court of Justice has held that passengers of a delayed feeder flight which falls within the scope of Article 3 of EU Regulation 261/2004 are entitled to compensation if the delay causes them to miss their connecting flight and results in them reaching their final destination with a delay of three hours or more. This applies regardless of whether the connecting flight falls within the scope of the regulation or was delayed.

Air traffic tax: the next round
Germany | 05 June 2013

Pilots' union Cockpit recently lodged a petition with Parliament regarding the abolition of air traffic tax. The tax has led to significant distortion of competition, to the detriment of German airlines and airports. The petition has been successful, and as a result Parliament's Petition Committee may schedule a public debate on the petition.

Non-applicability of regulation to connecting flights outside EU territory confirmed
Germany | 01 May 2013

The Landshut Regional Court recently ruled that each segment of a flight involving a scheduled stopover had to be regarded separately for the purposes of determining the applicability of EU Regulation 261/2004. The decision is important for third country (non-EU) air carriers which offer flights from EU countries via a hub outside the European Union to the rest of the world.

ECJ broadens application of Sturgeon
Germany | 13 March 2013

There has been a string of successful decisions in Germany regarding the requirement for delayed departure within the meaning of Article 6 of EU Regulation 261/2004 in order to seek compensation under the regulation further to the European Court of Justice (ECJ) decision in Sturgeon. A recent ECJ ruling in a case referred to it by the German Federal Court of Justice has thus come as something of a blow.

No compensation for delay on connecting flight outside EU territory
Germany | 20 February 2013

The Federal Court of Justice recently held that passengers were not entitled to compensation if the delay occurred on a connecting flight departing outside EU territory. The court stated that the meaning of the term 'flight' could not be determined by national air law, but was defined autonomously by EU Regulation 261/2004.

Will the Air Traffic Tax Act be abolished in 2013?
Germany | 19 December 2012

The federal state of Bavaria recently brought forward a motion aiming to abolish the Air Traffic Tax Act by Autumn 2013. The motion was approved by the Federal Council; as a result, the government has been requested to initiate a legislative procedure regarding the abolishment of the act.

No discrimination of male pilots obliged to wear uniform cap within airport premises
Germany | 21 November 2012

According to a recent decision of the Cologne Regional Labour Court, a provision in a works agreement stating that male pilots were obliged to wear a uniform cap in the public areas of the airport premises was not deemed discriminatory under the General Act on Equal Treatment. The court left it unclear whether the relevant provisions were to be interpreted narrowly or broadly.

No mineral oil tax exemption for corporate aircraft
Germany | 05 September 2012

The Federal Finance Court has ruled that the mineral oil tax exemption may be granted to air carriers only. However, it did not address the potential overlap of the EU Energy Taxation Directive and the EU Emissions Trading Scheme. As the exemption from the scheme for commercial air carriers does not apply to non-commercial operators (ie, undertakings with corporate aircraft), such operators will be charged twice.

No compensation for flights cancelled due to threatened pilot strikes
Germany | 29 August 2012

The Federal Court of Justice has ruled that if an airline's flight schedule cannot be operated in full or to a significant extent due to a strike, passengers have no right to compensation pursuant to EU Regulation 261/2004 because the 'extraordinary circumstances' defence applies. However, the airline must take reasonable measures to minimise the effects of a strike.

Customs clearance is responsibility of consignor, not carrier
Germany | 22 August 2012

Attempts are frequently made to shift all responsibility in connection with transport arrangements onto the forwarder/carrier. Thanks to a recent Darmstadt Regional Court judgment, clarity has now been established: a consignor is not entitled to shirk these responsibilities or to assert claims against the air freight forwarder should import approval be denied.

Alternative dispute resolution for passenger claims
Germany | 08 August 2012

The Federal Cabinet has adopted draft legislation on the introduction of conciliation bodies for airline passengers, with the aim of allowing passengers to make claims against airlines in a fast, cheap and straightforward manner. However, the plans would be yet another setback for the industry, particularly because airlines would have to bear the costs.

Advocate general affirms controversial Sturgeon decision
Germany | 20 June 2012

In an opinion requested by the Cologne Local Court and a UK court, the advocate general of the European Court of Justice (ECJ) has confirmed the ECJ's much-debated Sturgeon decision, which held that passengers whose flights are delayed, and who reach their final destination three hours or more after the arrival time originally scheduled by the air carrier, may rely on the right to compensation pursuant to EU Regulation 261/2004.

Sharp increase in administrative fine proceedings
Germany | 06 June 2012

In response to an inquiry initiated by Alliance 90/The Green Party, the government has revealed the latest statistics on the number of administrative fine proceedings and penalty notices imposed by the Federal Aviation Office (LBA). In 2011 the LBA initiated more proceedings than ever before; particularly significant is the increase for German air carriers. The number of penalty notices has also increased drastically.

Airline compensation claim valid only if delay occurred on both departure and arrival
Germany | 09 May 2012

The Nürtingen local court recently confirmed that, in relation to claims for compensation brought pursuant to EU Regulation 261/2004, a delay can have the same legal consequences as a cancellation only in cases where delays occurred both on departure and on arrival.

Federal Administrative Court upholds flight ban at Frankfurt Airport
Germany | 02 May 2012

The Federal Administrative Court has announced its long-awaited decision on the night curfew at Frankfurt International Airport. The court mainly affirmed the first instance ruling by prohibiting exceptions to the night curfew during the core night hours of 11:00pm to 5:00am. While the court's ruling ends the long-running conflict, the economic consequences for Frankfurt and the Rhine-Main region could be severe.

Airlines sue air traffic controllers' union for unlawful strike threats
Germany | 29 February 2012

Three airlines have filed lawsuits against the German union of air traffic controllers for damages related to allegedly unlawful strike threats. Never before has such a lawsuit been filed in Germany, which is based on the argument that an illegal threat to strike has caused financial losses to third parties. A condemnation of the union would have a significant impact on future decisions of German unions to strike.

Air traffic tax cuts disappoint industry players
Germany | 26 October 2011

The forthcoming air traffic tax cuts represent a good opportunity to even out the playing field for German airports and passengers. However, in light of the imminent inclusion of aviation in the European Emissions Trading Scheme, the German legislature would be well advised to consider abandoning the tax all together.

ECJ rules on retirement age of German pilots
Germany | 05 October 2011

According to a recent European Court of Justice, the provision in the standard collective agreement for German air carriers which requires that pilots be retired from working as crew members automatically when they reach the age of 60 constitutes undue age discrimination and violates the EU Equality Directive. The court therefore held that the relevant provision in the collective agreement was invalid.

Running out of de-icer: damages for non-performance
Germany | 09 February 2011

In recent months many flights have been cancelled due to freezing temperatures and the fact that aircraft could not be de-iced by ground-handling operators because they had run out of de-icing fluid. This raises the question of whether carriers can claim compensation from ground-handling companies in order to cover the cost of expected compensatory claims from passengers, and for loss of profit.

Court confirms that notice of complaint can be filed only by recipient
Germany | 22 December 2010

A recent ruling by the Regional Court of Frankfurt confirmed that only the recipient of goods is entitled to file a complaint to the carrier. Under Article 31 of the Montreal Convention, a complaint filed by a shipper on behalf of the recipient is not considered sufficient as it removes the direct contact between carrier and recipient and leads to unnecessary delay in verifying the claim.

Air travel tax and aircraft lease agreements
Germany | 01 December 2010

Parliament has passed the Accompanying Budget Act 2011, which not only comprises multi-faceted plans to cut public spending, but also introduces the Air Travel Tax Act. It is likely that several German carriers will challenge their tax assessments under the act, because the financial repercussions will be unacceptable.

Trouble brewing over air travel tax
Germany | 15 September 2010

The government has introduced its recently announced plans for an air travel tax. The new law, which is currently subject to the approval of Parliament and the Federal Council, will enter into force at the beginning of 2011. However, flights booked for that year are already taxable. The involvement of the courts in disputes arising from the new tax seems highly likely.

Industry fears impact of €1 billion air travel tax
Germany | 21 July 2010

From 2011 airlines will be charged a levy of €13 per passenger for European travel and €26 per passenger for intercontinental travel. The plan has already proved controversial, as the new air travel tax will be imposed on airlines still struggling to return to profitability after the financial downturn and the losses from the Icelandic ash cloud. Moreover, the tax arguably violates Article 15 of the Chicago Convention.

Court rules on flight crew's right to elect works council
Germany | 16 June 2010

The Berlin-Brandenburg Labour Court recently ruled that the Works Constitution Act did not give the flight crew of a German-based airline the directly enforceable right to elect its own works council. The court held that the crew would have been in such a position only if a collective bargaining agreement had been reached with a trade union explicitly providing for such a co-determination scheme.

Regional court rules on legal costs under Montreal Convention
Germany | 07 April 2010

The Darmstadt Regional Court has ruled on carriers' liability under the Montreal Convention. The court dealt with the question of whether a plaintiff is entitled to claim compensation for lawyers' fees and interest if the carrier offered compensation based on the convention after the incident but before the claimant had filed legal action.

Supreme Court misses chance to rectify ECJ ruling on flight delays
Germany | 10 March 2010

To the dismay of the airline industry, the Supreme Court has confirmed a preliminary ruling of the European Court of Justice on the distinction between flight delays and cancellations. The courts also allowed the so-called 'extraordinary circumstances' defence – hitherto applicable only to cancelled flights – to be applied to delayed flights.

Regional Court Denounces Smart-Ticketing Practices Among Passengers
Germany | 04 November 2009

The Cologne Upper Regional Court has ruled that the trend among passengers of so-called 'non-sequential use of coupons' or 'cross-border selling' undermines airlines' tariff structures and is not permitted. It is hoped that the decision will establish a precedent for the Federal Supreme Court, which will likely be obliged to look into 'smart-ticketing' practices in the near future.

Deadline for Emissions Monitoring Plan Submission Extended Again
Germany | 19 August 2009

The Data Collection Ordinance 2020 has become effective. The Emissions Trading Authority has issued advice to aircraft operators on the new ordinance and its consequences. The ordinance forms the legal basis for the submission of emissions monitoring plans. Furthermore, the deadline for aircraft operators to submit their monitoring plans has been extended again.

ECJ to Rule on Pilot Retirement Age
Germany | 15 July 2009

The Federal Labour Court recently asked the European Court of Justice to rule on whether the stipulation of a fixed retirement age of 60 for pilots as one of the terms of a collective employment agreement constitutes a violation of the EU Employment Directive.

Delayed Flights: Federal Court Rules on Passenger Compensation
Germany | 27 May 2009

The Federal Court of Justice has ruled on the scope of application of the EU Denied Boarding Regulation regarding compensation to passengers in the event of a missed connecting flight. The decision distinguished between instances of denied boarding and cases where a passenger has arrived to check in for a flight after the gate has closed due to a previous delayed flight.

Carriers Granted Additional Time to Submit Emissions Monitoring Plan
Germany | 01 April 2009

From 2012 aviation will be included in the EU Emissions Trading Scheme. Although this date may seem distant, carriers offering services to or within the European Union must act now. The German Emissions Trading Authority has requested that carriers involved submit documents detailing the procedures they plan to use to monitor emissions and gather tonne-kilometre data in August 2009.

Agency Publishes Report on Flight-Time Limitations for Cabin Crew
Germany | 04 March 2009

The European Aviation Safety Agency has published a report entitled "The Scientific and Medical Evaluation of Flight-Time Limitations". Some stakeholders have reacted to the report with dismay: their criticism focuses on "a serious lack of substantive scientific and medical content" in the report and claims that the report "comes to conclusions which are oblivious to the evidence of decades of safe operation".

Commission Investigates Frankfurt-Hahn Airport and Ryanair Agreements
Germany | 04 February 2009

The European Commission recently opened investigation proceedings concerning the granting of aid to Flughafen Frankfurt-Hahn GmbH and low-cost carrier Ryanair. On January 17 2009 the European Commission’s invitation to submit comments pursuant to Article 88(2) of the EC Treaty was published, and interested parties have been invited to submit their comments within one month of this date.

Compensation Claims for Lost Shipments
Germany | 21 January 2009

Under Article 22, Section 3 of the Montreal Convention, in the event of the destruction, loss or damage of cargo or a delay in its delivery, the liability of the carrier is limited. In a recent case the Federal Court of Justice ruled on the amount the carrier is entitled to claim for compensation in the case of a lost shipment and specified the requirements for such claims.

Is Outsourcing of Airline Handling Services a Transfer of Business?
Germany | 10 December 2008

The Federal Labour Court recently ruled that the outsourcing of a Polish carrier's handling services to a local airline company was not considered to result in a transfer of business pursuant to Section 613(a) of the German Civil Code, as the airline company performed these services using its own operating facilities.

Delayed Flights: Federal Court of Justice Clarifies Scope of Passenger Protection
Germany | 12 November 2008

The Federal Court of Justice has ruled on the question of whether a passenger who had booked a 14-day all-inclusive tour could, in the event of a delayed flight, claim compensation from the organizing tour operator under EU Regulation 261/2004. The decision strengthens the notion that the regulation is not applicable where national laws already provide sufficient protection to passengers.

Are Air Passengers Entitled to Disembark an Aircraft While Grounded?
Germany | 22 October 2008

After the Spanair crash in Madrid, the debate resumed as to whether passengers whose aircraft is stranded on the tarmac have the right to return to the gate once the doors have closed and the aircraft has pushed back. In this context the question arises as to whether the captain of an aircraft has legitimate powers to deny deboarding and, if so, how the limits of such powers can be determined.

Appellate Court Rules on Promotion of Air Fares and Price Transparency
Germany | 10 September 2008

Air passengers expect to be allowed to check in a reasonable amount of luggage free of charge, regardless of the price of their ticket. A German appeals court has confirmed that where a flight is advertised at a certain price "including taxes and fees", but an additional tariff will be levied for each item of hold baggage, the airline must refer to these additional costs in its advertisements.

European Commission Probes Allegation of State Aid for Frankfurt-Hahn Airport
Germany | 16 July 2008

The European Commission has opened investigations into state subsidies allegedly paid to Flughafen Frankfurt-Hahn GmbH and into agreements with the low-cost carrier Ryanair. The investigations focus on capital increases from 2002 and 2004 and a profit and loss transfer agreement between the airport and its parent company Fraport AG.

Shipping & Transport

District court deems sender not liable for late delivery
Germany | 03 October 2018

In its capacity as a court for inland navigation, the Mannheim District Court recently settled a dispute between an inland waterway carrier and a sender. The sender had instructed the carrier on short notice and despite the express statement by the carrier that its vessel was not yet available. According to the court's interpretation of the transport contract, the flexibility agreed in respect of loading readiness was to be understood as an exemption of liability for late delivery.

CMNI transport documents must specify weight
Germany | 19 September 2018

The Federal Court of Justice recently clarified a number of issues under the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway – most importantly, the determination (calculation) of the limitation per weight of goods. According to the court, only the weight specified in the transport document can be invoked; if no weight is mentioned in the transport document, the carrier must rely on the limitation per package.

Gap closed – no further risk for forwarders
Germany | 12 September 2018

The German Freight Forwarders' Standard Terms and Conditions (ADSp) 2017 are designed to protect forwarders and close any potential liability risk gaps, particularly for organisations involved in air transport. In order to clarify the issue of whether the ADSp 2003 applied only to transport that was governed by German law, the updated ADSp stipulate that they do not apply to international transport.

Court examines loss of goods placed in front of unattended warehouse
Germany | 29 August 2018

The Munich Higher Regional Court recently confirmed that 'delivery' under the Commercial Code essentially means the procurement of direct possession. While the physical seizure of transported goods by a consignee is unnecessary, the goods must be made available to the consignee in such a way that it can, without further obstacles, seize control of the goods. The court also clarified how to classify the unloading of valuable goods in front of an unattended warehouse without an agreement or instructions.

'Gigaliner' operation does not violate EU law
Germany | 01 August 2018

The Berlin Administrative Court recently considered the action of an environmental association admissible but unfounded. The association had sought a declaration that introducing long trucks or 'gigaliners' to regular operation and extending the trial operation of certain extra-long trucks was illegal. While this judgment strengthens the road transport route, given that the operation of extra-long trucks is limited by the density of the cargo, the use of gigaliners might not affect competition with rail transport.

Contractual risk exclusion of intervention by customs authorities in transport insurance
Germany | 11 July 2018

The Federal Court of Justice recently ruled on two risk exclusion clauses in transport insurance policies that are especially relevant for the export and import industries. While the decision has resolved some of the legal uncertainty surrounding transport insurance, it will likely apply to all types of insurance. As far as risk exclusion clauses are concerned, the court has made it clear that exclusion clauses should be interpreted restrictively.