Arnecke Sibeth Dabelstein updates

Aircraft repossession in Germany
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • July 11 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.

Contractual risk exclusion of intervention by customs authorities in transport insurance
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • July 11 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.

Extended rights for passengers of connecting flights outside EU territory
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • July 04 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • June 27 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • June 13 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • May 09 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • April 18 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • March 14 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • February 14 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • December 20 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • December 06 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • November 29 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?
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • October 18 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • September 20 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • September 06 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • August 09 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.

Drones – required and advisable insurance
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • July 05 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • April 12 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • March 22 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
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • March 15 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.

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