FLUG REVUE May 2004: German airline user charges unlawful

Germany's Supreme Administrative Court declares security charges unlawful

By Volker K. Thomalla

Mass means of transport such as aircraft and trains are obviously prime targets for terrorists. The civilised world was paralysed with horror as it looked on helplessly at the events of 9/11. It is therefore right and necessary that the toughest possible security checks be put in place, and there can be no doubt that everything possible has to be done to prevent such attacks in the future. In view of the budget situation in Germany, however, the airlines, airports and government are arguing over how to finance these measures. And this argument actually predates 11 September 2001.

On 18 March 2004, Germany's Supreme Administrative Court in Leipzig made a remarkable judgement. In an appeal process it confirmed a verdict reached by the administrative court of Baden-Württemberg in April 2003, in which it had been decided that charges for the protection of sensitive areas through patrols and for armed guards at control points and on endangered aircraft were unlawful. The state is not entitled to charge the airlines or their passengers for additional security measures.

The Federal Republic of Germany appealed against the verdict of the judges in Baden-Württemberg and was unsuccessful in the final instance in Leipzig. In their verdict, the judges in Leipzig pointed out that there is no basis in law for such charges.

This is a mighty setback for those who conceived the charges. The verdict was based on the fact that the German Federal Border Guard, in its activities at airports, is not acting as an agency of the aviation authorities; it is acting as a police force, and therefore the relevant ordinances of the aviation authorities cannot be used as a basis on which to justify the levying of charges.

Parallel to this, the lawfulness of the charge whereby passengers pay for themselves and their baggage to be searched was also examined. This is normally paid for together with the ticket. It varies from airport to airport and is based on the need to cover costs. No verdict was reached in this case, which was referred back to the court of appeal for a further hearing and a decision.

In spite of the verdict, the big question remains: who is going to pay to provide protection against the threat to air travel? The argument that passengers should have to pay because they are the beneficiaries of the security measures does not hold. Only in a very few cases are attacks aimed at a particular individual or airline. The passenger may be a beneficiary of the measures, but it is not the purchasing of a ticket or the start of a flight that is the cause of the security measures: it is the threat to the state posed by terrorists with murderous aims.

The terrorist attacks of the past – including the railway bombs in Madrid – have shown that states, their policies, values and societies are the immediate targets of the attacks, even though the passengers are the immediate tragic victims. Is it not the most urgent task of a democratic state to protect its society against outside threats?

There is one further question to be asked in this connection: if airline passengers have to pay for the security measures from which they benefit, why should the spectators at large events such as football matches not have to pay for the police presence there?

From page 4 of FLUG REVUE 5/2004

Last updated 15 April 2004

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