Almost all airlines worldwide are having to deal with severe financial problems due to the consequences of fighting COVID-19 and the grounding of fleets for several months. Even Lufthansa considered filing for insolvency during negotiations with the German government about state aid. This article addresses German insolvency law in general and some special features regarding airline insolvencies.
The new Berlin Brandenburg Airport (BER) looks set to open its gates on 31 October 2020. Even if BER opens as currently scheduled, the public damage caused by its troubled history will remain. It remains to be seen how the numerous delays have harmed the original idea for the airport given the fact that its infrastructure has already become a bit outdated without ever having been used.
Under long-term maintenance, repair and overhaul (MRO) agreements, airlines must usually pay a certain rate per flight hour to obtain engine or other component maintenance and repair services or just to have access to a certain spare parts pool. However, during the COVID-19 pandemic, most airlines have ceased their entire flight operations. This article addresses possible contractual clauses and statutory rights on which a claim to adjust payment obligations under an MRO agreement may be based.
A recent Eilenburg Local Court decision highlighted that a booking or reservation confirmation issued to a passenger by a tour operator with whom a flight has been booked should not necessarily be regarded as a confirmed booking under Article 3(2)(a) of the EU Flight Delay Compensation Regulation, even if the booking is referred to as an 'e-ticket voucher'. This decision underlines that the burden of proof for the existence of a confirmed booking will be borne by the passenger.
The Hamburg State Court recently rejected a damages claim arising from the cross-border transport of goods from the United States to Germany. The consignment was transported to Germany by air freight and was lost in a transhipment warehouse on the premises of Frankfurt Airport. The plaintiff claimed damages on the basis of German transport law and refused to settle the claim on the basis of the Montreal Convention.
The Bremen Local Court recently dismissed a compensation claim under the EU Flight Delay Compensation Regulation for a delayed flight booked using a company tariff. The court has thus put a double stop to possible claims by employees. If a booking is made using a company tariff, claims are generally excluded. Even if a booking is made using a general tariff, the travelling employee cannot bring forward a legal action.
Due to the COVID-19 crisis, all German airlines have had to significantly reduce their number of flights. In order to assist airlines, the government implemented a new law to mitigate the consequences of the COVID-19 pandemic in civil, insolvency and criminal procedures (the COVID-19 Act). The new law is also relevant for aircraft lessors that have leased aircraft to German airlines and fear that in case of an airline's insolvency, they may have difficulties repossessing their assets.
The Frankfurt/Main Higher Regional Court recently dismissed a claim for damages due to a ticket cancellation. The court rightly denied the international jurisdiction of German courts and confirmed that a legal person can be sued at the seat of its branch office. However, the prerequisite for this is that a dispute has a connection to the relevant branch office, which was lacking in this specific case.
In a recent Federal Administrative Court case – in which the German court referred questions to the European Court of Justice (ECJ) – Deutsche Lufthansa AG achieved its goal of defending itself effectively against higher airport charges and underlined the possibility of a judicial review to examine the appropriateness of airport charges. However, the ECJ decision clarifies that, for the time being, there is no scope for free pricing under the EU Airport Charges Directive and thus no contractual freedom for airport users.
A recent Erding Local Court judgment concerned a compensation claim after four passengers missed their flight due to a security alert at the airport. The court decided that there was no entitlement to compensation because there had been no refusal of carriage by the airline. Given the growth of passenger numbers and the resulting need for extra security staff, the decision sets a positive and correct precedent for the benefit of airlines operating in Germany.
As airlines must constantly strive to reduce maintenance costs, it is prudent to carefully review and negotiate contracts with maintenance, repair and overhaul organisations (MROs). As MROs often insist that contracts must be governed by the law of their home jurisdiction, this article addresses a selection of important issues that must be considered when negotiating so-called 'time and material' or 'power by the hour' contracts with German MROs.
A recent Frankfurt am Main Local Court decision is a useful reminder that in the event of an assertion of claims under the EU Flight Delay Compensation Regulation, the associated booking conditions must be considered when determining claim validity. Ultimately, travellers with access to corporate customer tariffs between their employer and the airline cannot claim compensation if their flight – whether for professional or private purposes – is delayed or cancelled.
The Federal Court of Justice recently requested a preliminary ruling from the European Court of Justice on the question of whether airlines are in principle entitled to choose the currencies in which their air fares are listed. Under EU law, airlines that offer flights departing from EU airports must list passenger fares; however, whether airlines have the right to choose the currencies of said listings required further clarity.
The Federal Court of Justice recently issued a verdict stating that compensation under the EU Flight Delay Compensation Regulation must be offset against compensation claims made under national law that were caused by the same incident. The court's judgment is welcomed, as it prevents passengers from being overcompensated and provides greater legal certainty while balancing the interests of airlines and customers.
In a recent preliminary ruling, the European Court of Justice held that a foreign object such as a screw or nail on an airport runway which damages an aircraft represents an extraordinary circumstance under the EU Flight Delay Compensation Regulation. According to the court, such incidents exempt air carriers from the obligation to pay passengers compensation in the event of denied boarding and flight cancellation or long delays.
Commercial drone flights are expected to be a future market worth billions. Considering this prospect, the German air traffic control company Deutsche Flugsicherung and the largest telecoms provider in Europe, Deutsche Telekom, have established a joint venture, Droniq, to operate remote-controlled long-haul flights. Among other things, Droniq aims to establish a digital platform for all unmanned aerial operations and engage with security authorities and logistics companies seeking to deliver goods faster.
Recent reports suggest that the need to remedy defects in a faulty fire prevention system and other construction faults will further delay the opening of the new Berlin Brandenburg International Airport. For example, an internal report by TÜV Rheinland detailed 11,519 deficiencies in the airport's emergency lighting and safety power supply cables, which were replaced after the failed opening in 2012.
A 2018 Federal Court of Justice decision clarified that the secondary obligations arising from a contract of carriage between a passenger and an air carrier extend to the verification of the validity of the documents required for entry. However, checking that passengers have the correct documentation also remains an obligation for air carriers. Air carriers must therefore check the validity of passengers' documents before admitting them to a flight in order to rule out their own contributory negligence.
In May 2018 the Aviation Working Group announced plans for a global aircraft trading system (GATS) to modernise the selling, buying and financing of leased aircraft and engines by making such transactions simpler and faster. The GATS will be fully electronic and use e-signatures, e-delivery of documents and a secure e-ledger to record transactions. As such, it is expected to reduce the time and costs required to change German aircraft registrations through the national aviation authority.
If a third-country aircraft owner terminates the lease of a German airline but wants to keep the aircraft registered in Germany, it must enter into a new lease or similar agreement with an entity from an EU member state for at least six months. This article discusses why aircraft lessors and owners should carefully consider the requirements for keeping an aircraft in the German aircraft registry, particularly if its lease has been terminated.