Etihad provisionally allowed to further conduct international code-share flights with Air Berlin in Germany

The Supreme Administrative Court of the state of Lower Saxony in Germany issued a provisional order that allows Etihad Airways to further conduct international code share flights with Air Berlin in Germany regarding its winter schedule 2015/2016. The court’s order was based on the bilateral agreement between Germany and the UAE. However, the court found that Etihad had no such right as to domestic German flights.

Etihad Airways had disputed the decision of the German Federal Ministry for Traffic and Digital Infrastructure (Bundesministerium für Verkehr und digitale Infrastruktur) and the Federal German Civil Aviation Authority (Luftfahrtbundesamt) not to approve 31 routes of its winter flight schedule in Germany, which would be conducted according to a code share agreement with Air Berlin (it is reminded that Etihad holds a 29,2% stake in Air Berlin). These routes concerned both international flights between UAE and Germany and domestic flights within Germany.

Etihad’s application to the German CAA was based on the bilateral air traffic agreement between UAE and Germany, which was originally signed in 1986 and is still in force. In June 2000, Germany and UAE agreed provisionally to a revised Route Schedule (still in force), while the final Route Schedule would be negotiated at a later point. In 2012, the German CAA granted Etihad approval of its routes to and from Germany, under reservation that such approval could be revoked at any time. In 2014, the German CAA received a notice from the European Commission that some code share flights might not be covered by the said bilateral agreement. The CAA conducted a legal analysis and informed Etihad in August 2014 that it would not be able to approve certain code-share flights in the future. Subsequently, negotiations among all the parties involved took place. In October 2014, the CAA denied the approval of certain code-share flights and Etihad applied for a provisional order before German courts. The case was settled out of the court, when the CAA agreed to fully approve Etihad’s winter schedule 2014/2015, under reservation of revoke at any time. The same happened with summer schedule 2015. However, in March 2015 the CAA notified Etihad that such approval, which the CAA found to be uncovered by the bilateral agreement, could not be granted anymore in the future. New consultations occurred, which resulted in provisional partial approval of Etihad’s winter schedule 2015/2016 until 15 Jan. 2016.

Etihad applied to the administrative court of first instance of Braunschweig (Verwaltungsgericht Braunschweig) for a provisional order to have these flights approved for the rest of its winter schedule. The court rejected Etihad’s application on 15 Dec. 2015 and Etihad appealed before the Supreme Administrative Court of the state of Lower Saxony (Oberverwaltungsgericht Niedersachsen).

The Supreme Administrative Court of the state of Lower Saxony granted the provisional order on the basis of the wording of the 2000 “Agreed Minutes and Revised Route Schedule” between Germany and UAE, which allowed Etihad to conduct international flights not only to and from the airports of Frankfurt, Munich, Duesseldorf and Hamburg, for which the approval had already been granted, but also the airports of Berlin, Stuttgart und Nuremberg. Consequently, a provisional order allowing such flights (26 in total) for the winter schedule 2015/2016, i.e. until 26 March 2016 was issued.

Nevertheless, the Court found that Etihad  was not entitlted to conduct domestic (cabotage) flights within Germany. Such flights had not been included in the bilateral agreement. Therefore, the Court rejected the pertinent part of Etihad’s application.

You can find the Court’s press release here (in German). See also the press releases in English by Air Berlin and by Etihad.