OLG Frankfurt; 2018-09-25; 16 U 209/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2018:0925.16U209.17.00
Date: 2018-09-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0925(51)_ENG_SUMJURE
JURE summary
JURE summary
In his claim, an Israeli citizen living in Germany (hereinafter ‘the plaintiff’) requested transport by air on the Frankfurt am Main – Bangkok and Bangkok – Frankfurt am Main routes, each with transit stops in Kuwait City, or a pecuniary compensation from a Kuwait state airline company (hereinafter ‘the defendant’).
The plaintiff booked the abovementioned round-trip flights via an online travel portal, and the booking was initially confirmed. After he informed the defendant of his nationality via email, the flights were cancelled by the defendant.
The Landgericht Frankfurt am Main (hereinafter ‘the Court of First Instance’) dismissed the claim. The Court of First Instance considers that, although the parties came to an effective agreement in respect of the transport service, the plaintiff does not have the right to contractual fulfilment since this is a case of legal impossibility within the meaning of Section 275(1) of the 2nd alternative of the BGB (1). It also considers that the transport contract is subject to Act 21 of the State of Kuwait of 1964 (hereinafter ‘the Uniform Law on the Israel Boycott’), pursuant to which the defendant is prohibited from providing the transport service in Kuwait in respect of the plaintiff’s Israeli citizenship. The fact that this law is not valid in Germany is insignificant in this case.
The plaintiff’s appeal opposes the judgment of the Court of First Instance at the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’). Section 275 of the BGB is not applicable owing to the specialty of the unreasonableness specified in Section 21(2) of the air traffic law. The Uniform Law on the Israel Boycott selectively and unilaterally discriminates against Israeli citizens and enterprises, which is grossly contrary to the fundamental principles of EU law.
In its opinion of the plaintiff’s appeal, the defendant states that the holder of an Israeli passport may not fly to Kuwait even for the purpose of transit and temporary stay in the transit area, and that this applies to all airline companies. In any case, the defendant claims to have the right to refuse performance pursuant to Section 275(3) of the BGB and states that the plaintiff may use other routes which do not have a layover in Kuwait. It is supposedly the defendant and not the plaintiff that is in a predicament, since the defendant would expose itself to considerable sanctions by performing the transport.
Although the appeal is admissible, it was unsuccessful.
The plaintiff rightly objects that the exclusion of the provision of the service is not on the grounds of legal impossibility pursuant to Section 275(1) of the BGB. The Uniform Law on the Israeli Boycott does not constitute legal impossibility. This norm has no effect on the transport contract which is subject to German law.
The Uniform Law on the Israeli Boycott discriminates on citizenship, which does not accord with principles of the international legal community or German law. In addition, Section 21(2)(2) of the air traffic law lays down a fundamental transport obligation for aerospace companies with respect to any person.
However, the defendant may refuse the transportation of the plaintiff because the performance thereof is obstructed by a real hindrance. The transit area of the Kuwait City airport is subject to legal territory of Kuwait, and accordingly Kuwait laws apply in this area. It is clear from the statements of the international air transport association and the Kuwait embassy in Germany that the plaintiff, as a holder of an Israeli passport, may not travel to Kuwait, not even for the purpose of stopping over. The plaintiff would have to fly back to Frankfurt am Main at his own expense immediately upon attempting to stop over in Kuwait City.
Furthermore, the plaintiff failed to observe the two-month time limit for pecuniary compensation set out in the defendant’s general transportation conditions.
The Court of Appeal dismissed the plaintiff’s appeal against the judgement of the Court of First Instance.
(1) Bundesgesetzbuch (BGB) (German Civil Code).