Aviation, Germany updates

Munich Airport expansion suspended following state elections
Arnecke Sibeth Dabelstein
  • Germany
  • 28 November 2018

Following Bavaria's state elections in October 2018, the legally binding plans to build a third runway at Munich Airport incurred significant delays. The state authorities recently agreed that the project will be suspended for five years, despite the fact that demand for aviation services in Munich – and internationally – continues to rise. The decision is a further example of how Germany's aviation industry will face additional, severe obstacles and challenges over the coming years.

New basic regulation will revise aviation landscape
Arnecke Sibeth Dabelstein
  • Germany
  • 14 November 2018

The European Parliament and Council recently revised and replaced the basic regulation on common rules in the field of civil aviation. The new basic regulation promises a number of significant changes to the German aviation landscape over the next five years. Among other revisions, the Federal Aviation Office could lose some of its control over certain tasks relating to air operator certification, oversight and enforcement.

Digitisation gains ground: new government-funded app to support passenger right claims
Arnecke Sibeth Dabelstein
  • Germany
  • 24 October 2018

The State Parliament of North Rhine-Westphalia recently decided to launch an airline passenger rights app. The new app is intended to promote consumer protection and help passengers to claim compensation easily via their mobile phones. It will be developed by the consumer advice centre and is expected to inform passengers of their rights, perform claim checks, offer suggestions on how and where to assert claims and actively support the process of claiming compensation.

Aircraft passenger rights under wet lease agreements
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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
Arnecke Sibeth Dabelstein
  • 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?
Arnecke Sibeth Dabelstein
  • 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.

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