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. The act came into effect as a reaction to the 2008 financial crisis, particularly in order to reduce the deficit of the federal budget. According to the legislature, the act is supposed to create incentives for environmentally friendly behaviour.

The Federal Fiscal Court approved the Federal Constitutional Court's November 5 2014 decision (1 BvF VII R 55/11), which stated that the act is in line with the Constitution.

On December 1 2015 the Federal Fiscal Court decided (VII R 55/13) that the act does not violate European law and as a result airlines cannot invoke EU law against the tax.

The tax cannot be qualified as an EU-wide harmonised purchase tax, so the act does not conflict with EU law in that respect. According to the EU Energy Tax Directive, the tax also does not conflict with mandatory tax exemptions (eg, levies on aviation fuel). According to the court, there is no direct link or proportionality between the air traffic tax and fuel consumption. The tax is raised not in connection with the consumption of aviation fuel, but rather with the departure of passengers. In addition, the tax is calculated according to the distance to the destination; because of this, it corresponds to a criterion that is also significant for fuel consumption. However, this combination is insufficient for the assumption of excise duty, as fuel consumption per passenger depends on further factors, such as the type of aircraft and aircraft capacity.

According to the Federal Fiscal Court judgment, airlines cannot rely on the prohibition on state aid under EU law in order to avoid payment of the tax or its reimbursement. The court also opined that the act does not violate the fundamental principles of free movement of services or non-discrimination. After all, the court has also denied violations against international air transport agreements (ie, the Chicago Convention and the Open Skies Agreement).

As a result, airlines and their passengers will have to adapt to the air traffic tax on a long-term basis. Revenues for the treasury from this tax are significant. With reference to Financial Ministry publications, the national revenue in 2015 was approximately €1 billion.

For further information on this topic please contact Johannes Stehr or Ulrich Steppler at Arnecke Sibeth Rechtsanwaelte by telephone (+49 69 97 98 85 0) or email (jstehr@arneckesibeth.com orusteppler@arneckesibeth.com ). The Arnecke Sibeth website can be accessed at www.arneckesibeth.com.

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