In a reversal of last week’s order by a German district court, the Regional Court of Berlin has found that Niki’s insolvency proceedings should be heard in Vienna, in a decision that could jeopardise IAG’s planned acquisition of the Air Berlin subsidiary.
The latest ruling, announced by the regional court on 8 January, comes less than a week after the Charlottenburg District Court found it had international jurisdiction over the case after passengers’ rights group Fairplane brought a petition to move proceedings to Vienna.
The court cited the recast European Insolvency Regulation (EIR), which states at article 3 that a debtor’s centre of main interests (COMI) is “the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.”
The court held in its German-language decision that neither the fact Niki’s business was controlled from offices in Berlin, nor that its main customer was its parent company, Air Berlin, meaning the majority of its sales took place in the city, were decisive in establishing COMI in Germany.
Instead, it found that Niki held an Austrian operating licence and maintained offices in Vienna from which its managed its finances, and that the contracts of 80% of its employees were subject to Austrian employment law.
The court added that Niki had not informed its creditors of the fact that its COMI was Germany, and that during court proceedings in Austria’s Korneuburg Regional Court arising out of an earlier insolvency petition – filed by an Austrian tour operator against Niki shortly after Air Berlin announced its insolvency – Niki had not raised an objection to the international jurisdiction of the Austrian courts.
A spokesperson for Niki’s administrator Flöther & Wessing confirmed on 9 January that Niki had lodged an appeal against the judgment with the German Federal Court of Justice.
Niki first claimed the protection of the German courts in December after Lufthansa called off plans to acquire it as part of a package of assets belonging to Air Berlin, which itself filed for insolvency in the Charlottenburg court in August.
Lufthansa was obliged to relinquish its bid for Niki after the European Commission’s Directorate General for Competition warned that the tie-up would have harmed passengers in Germany, Austria and Switzerland. After the Niki bid was dropped, the competition watchdog approved Lufthansa’s acquisition of other Air Berlin assets in December.
International Airlines Group, which owns British Airways, Aer Lingus, Iberia and Spanish low-cost carrier Vueling, later agreed to buy a number of Niki assets and to contribute €16.5 million to the airline’s running costs.
Lawyers at German law firm Luther and Austria’s bpv Hügel set up a new Vienna-based subsidiary operating under Vueling, which on 29 December entered into an agreement to buy Niki’s assets. The deal remains subject to the approval of the European Commission.
Last week, a spokesperson for Niki’s administrator Flöther & Wessing told Reuters that the IAG deal could be “greatly endangered” if the regional court held that Vienna was the proper forum for the insolvency proceedings.
Responding to the latest ruling, a spokesperson for Fairplane told Reuters that the decision by the Regional Court of Berlin was unlikely to scupper the sale of the airline to IAG.
“As soon as there is an insolvency process for Niki in Austria, the administrator there can approve the deal agreed with IAG/Vueling in Berlin and pursue its implementation,” the spokesperson said statement.
In an announcement on 9 January, Flöther & Wessing said IAG was pressing ahead with its bid to acquire Niki’s assets despite the regional court’s ruling, and noted that the airline had lodged an appeal.
Niki is expected to open secondary proceedings in Austria to recognise its German insolvency by the end of the week, the announcement added.
Counsel to Niki
Graf & Pitkowitz
Partners Stefan Weileder and Alexander Isola in Vienna
Counsel to Fairplane
Partners Joachim Voigt-Salus and Oliver Sietz in Berlin, with Thomas Ellrich in Cologne
Kosch & Partner
Counsel to IAG
Partners Andreas Kloyer and Christian Rodorff in Munich, Susanna Fuchsbrunner and Andrea Metz in Frankfurt, and Helmut Janssen in Brussels
Partners Elke Napokoj, Stefan Gaug, Michaela Pelinka and Christian Schneider in Vienna, and Bernhard Schatz in Baden