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Air Berlin will go to court to challenge the air departure
tax that the German government plans to introduce on Jan. 1, 2011, on the
grounds that it violates the German constitution and breaks European
regulations on state aid, a carrier official told The Transnational. Other
carriers plan similar challenges, according to a leading aviation lawyer.
The tax also is in breach of the Chicago Convention, said
Ulrich Steppler, partner and co-head of the transportation, aviation and
logistics department of Frankfurt-based law firm Arnecke Siebold "Several
of our clients are consulting us about taking the matter to court," said
Steppler. "There are many arguments why the tax is unlawful."
Announced in September by the German federal government, the
new tax will cost departing passengers €8 for short flights within Europe, €25
for medium-haul flights and €45 for long-haul flights. The tax applies to
flights from Jan. 1, 2011, and already has been levied on bookings from Sept. 1
onward for travel on or after that date. Airlines therefore have started
collecting the money from passengers, but have not yet passed it on to the
The retrospective application of the tax will be one point
carriers will challenge. They will file their objections in February in
response to local tax authorities issuing their first assessments for the tax.
Local fiscal courts initially will hear the challenge, and the matter then is
likely to be referred to the federal fiscal court.
A main argument against the tax is that it was not within
the competence of the federal parliament to introduce it, Steppler said, as
only individual regions have the right to levy one. Another objection is that
private aircraft and cargo flights are exempt. "That could be considered
to be state aid," said Steppler, thus breaching European Union competition
regulations. Because the tax applies only to flights from German airports, not
flights to them, Steppler said it contravenes an article of the Chicago
Convention forbidding exit taxes.
He added that "Air Berlin will fight it to the very
end, come hell or high water."
An Air Berlin spokeswoman confirmed plans to mount a legal
challenge. "We think there are material and formal problems with the tax,
and we will take legal steps against it," she said. Air Berlin last month
indicated the tax would cost it €160 to €170 million annually, adding that it
prompted an announced 5 percent capacity cut from summer 2011.
Source: The Transnational