In its judgment of 26 July 2018 (III ZR 391/17), the Federal Court of Justice denied a claim for compensation regarding costs relating to the duty of German airlines to carry sky marshals.

Facts

The claimant, a German airline performing national and international passenger air transport, was obliged under German law to grant cost-free carriage of sky marshals. Instituted after the 9/11 terrorist attacks, sky marshals are armed and plain-clothed specialised federal police officers who are entrusted with the security of certain flights based on specific security considerations and by decree of the federal police.

Between 2008 and 2015 the passenger-related costs for such carriages – including transport taxes, entry charges, customs tariffs and starting and landing fees – totalled approximately €1.3 million for national flights and €1 million for international flights.

The claimant opined that the duty of cost-free carriage for sky marshals comprises only the airline's costs which occur irrespective and independently of whether the seat is booked. Additional costs to be borne and paid to third parties such as airports, authorities and others which relate to the number of carried passengers must be compensated by the defendant (ie, the Federal Republic of Germany).

Decision

The Federal Court of Justice denied the claim.

Articles 4a and 62(2.2) of the Federal Police Act set out the obligation to carry sky marshals for free. Further, Article 62 of the act includes provisions regarding the reimbursements of costs, but these provisions expressly do not refer to the carriage of sky marshals. Therefore, the court held that it must be assumed that the German legislature deliberately excluded any costs relating to the carriage of sky marshals from reimbursement, irrespective of whether these costs were passenger related.

Further, the court argued that Article 62(2.2) is constitutional. Even though the claimant's fundamental rights of occupational freedom and ownership were restricted by the obligation of free carriage, the requirements of the proportionality principle were met. The court underscored the high importance of security during air transport and the relatively low passenger-related costs (approximately 0.001% of the claimant's annual turnover and 0.1 % of its annual profit margin). Further, the claimant was not responsible for maintaining its own security staff and thus would be a direct beneficiary of having sky marshals aboard its planes. Hence, costs would more than be compensated.

The court also rejected the claimant's objection that at least the passenger-related costs occurring on international flights must be compensated as the operation of sky marshals in foreign airspace would be an illegal execution of German sovereign measurements (according to the Convention on International Civil Aviation of 1944). The factual necessity of remaining onboard the plane until landing and flying back to Germany would not make the sky marshal operation illegal as long as the flight started or ended in German territory. The court also noted that while being in foreign airspace, the sky marshals could function as the pilots agents, responsible for the security aboard. The operation of sky marshals in foreign airspace would be limited only where it would infringe applicable foreign law (which could not be noted in this instance).

Comment

While the Federal Court of Justice'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. The court's reference to the threat of terrorist attacks on airplanes that lead to the 2002 implementation of sky marshals in the German federal police portfolio was not entirely thought through. Although it is indisputable that terrorists hijacking an airplane can cause massive damage, terrorist attacks on the ground can have the same impact and occur more frequently.

During the past 20 years, most terrorist attacks in Europe have targeted public infrastructure on the ground. Given that only cursory security checks are made before entering a train or stadium, air transport must be considered as relatively secure without the presence of a sky marshal.

It is hard to justify why people using trains are considered less worthy of protection than plane passengers. It is also unclear why airlines should bear the costs of a (not entirely apolitical) decision to favour increased air transport security over land passenger transport.

The unequal treatment of airlines and (for example) railway companies should have been a strong argument for the unconstitutionality of Article 62(2.2) of the Federal Police Act. However, the Federal Court of Justice has only recently picked up on this by identifying a higher need for air transport security.

For further information on this topic please contact Sybille Rexer or Anna Lena Wülbern-Ahmad at Arnecke Sibeth Dabelstein by phone (+49 40 31 77 97 0) or email (s.rexer@asd-law.com or a.wuelbern-ahmad@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

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