Security controls outside scope of airlines

Facts
Decision
Comment


Facts

A recent Erding Local Court judgment was based on a legal dispute between four passengers and an airline with whom the passengers had booked a flight from Munich to Ankara on 28 July 2018.(1) The plaintiffs arrived at the airport on time and check in was carried out without any problems. However, someone managed to enter the departure security area unchecked due to an error by the Munich Airport security staff. Thus, the Federal Police cleared the terminal to eliminate any threat of terrorism. As a result, the plaintiffs were denied access to their departure gate by the security staff and it was no longer possible to reach the gate prior to departure. The airplane took off without the plaintiffs. Despite rebooking another flight on the same day, the plaintiffs reached their destination with an approximately 13-hour delay and, therefore, claimed compensation of €400 each pursuant to the EU Flight Delay Compensation Regulation (261/2004). The plaintiffs argued that the airport managing body and its employees are vicarious agents of the airline. Consequently, the actions of the security staff should be attributed to the airline. The airline defended itself by stating that security controls lie outside the scope of airlines.

Decision

The Erding Local Court decided that there was no entitlement to compensation because there had been no refusal of carriage by the airline. According to the wording of Article 4 of the EU Flight Delay Compensation Regulation, in order to be eligible for compensation, the plaintiffs would have needed to arrive at the departure gate on time and have been refused carriage by the airline. However, the court emphasised that the plaintiffs neither reached the departure gate on time nor were refused carriage by the airline. Therefore, the airline could have been held responsible for the plaintiffs non-appearance only if the actions taken by the security staff and the Federal Police could have been attributed to the airline. It must be pointed out that security checks of passengers and baggage prior to their entrance into the departure areas of airports are part of sovereign tasks subject to public law. These tasks are generally incumbent on the airport operator and the aviation security authority, but can also be executed by a natural or juristic person governed by private law, provided that the latter is appointed. Consequently, the court stated that airlines assume no obligation to ensure the smooth operation of security checks, as they are only users of airports and thus have no influence regarding sovereign controls and measures.

Comment

The unchecked entry of a person into the security area of Munich Airport on 28 July 2018 had far-reaching consequences. A total of 330 flights were cancelled due to the anti-terrorism measure executed by the Federal Police. The airport was confronted with a flood of stranded passengers and, therefore, voluntarily issued approximately 6,000 €50 vouchers to the passengers concerned. Further, the airlines suffered great financial losses because of this incident.

Air travel as a means of transport continues to grow in popularity and relevance. Travelling to remote or nearby destinations relatively fast is not only welcome in business and private life; the movement and constant availability of goods is also due to air transport. Thus, climate change is unlikely to have a significant impact on the success of the aviation industry.

As a result, the increase of air traffic is to be expected. In this context, Eurocontrol studies indicate that air traffic in Europe will continue to grow over the next 20 years. The number of flights will increase to 16.2 million per year by 2040 compared with 11 million in 2018. In contrast, more than 70 million passengers used Frankfurt Aiport in 2019 for the first time in one year. With the growth of passenger numbers, the need for security is growing.

Importantly, therefore, security staff must not only be adequately trained, but also available when needed, especially in light of rising passenger numbers at European airports. This remains the biggest task for airports in Germany in the coming years.

The Erding Local Court decision therefore sets a positive and correct precedent for the benefit of airlines operating in Germany.

For further information on this topic please contact Louisa-Ann Lange at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (l.lange@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

Endnotes

(1) Erding Local Court, 11 April 2019 judgment, Ref 4 C 3819/18.