Air Berlin will go to court to challenge the air departure tax that the German government plans to introduce on 1 January 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 taxwill 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 1 January 2011, and already has been levied on bookings from 1 September 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 government.
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 cutfrom summer 2011.