German district court rejects discrimination claim brought by Israeli passenger against Kuwait Airways for denied boarding

The District Court of Frankfurt ruled that Kuwait Airways was entitled to refuse boarding to an Israeli passenger because of his nationality, based on a Kuwaiti law that bans contracts with Israeli nationals. The judgment is subject to appeal.

The claimant had bought a ticket from Kuwait Airways for a flight from Frankfurt to Bangkok via Kuwait City. However, once the passenger notified his nationality to the airline, the airline denied his boarding to the flight and offered him to fully cover the cost of his transportation to Bangkok with another carrier. The denial was based on a Kuwaiti law of 1964, which prohibits, upon heavy penalties, Kuwaiti nationals from entering into contract with Israeli nationals. The passenger declined the offer, insisting that the airline should transport him as contractually agreed.

The passenger brought a claim against the airline before the District Court of Frankfurt (LG Frankfurt) for breach of contract and discrimination. The Court held in its judgment (Docket No. 2-24 O 37/17) that there was a legal impossibility of contractual performance on the part of the airline, because of the heavy fines and sentences foreseen in the Kuwaiti law for violations of its provisions: it would be unreasonable (unzumutbar) to demand performance from the airline under such circumstances. In addition, §19(1) of German Act on Equal Treatment (AGG) prohibited discrimination based on race, ethnic origin or religion, but not on nationality.

The judgment has been heavily criticized (see e.g. here) and rightly so. The German court, when interpreting §19(1) AGG, failed to take into account overarching fundamental human rights provisions on prohibition of discrimination based on nationality, such as Art. 3(3) German Constitution, Art. 14 of the European Convention on Human Rights, Art. 21 of the EU Charter of Fundamental Rights, Art. 2 of the UN Universal Declaration of Human Rights, etc. Instead, the Court chose to interpret narrowly §19(1) of the AGG tacitly accepting that discrimination based on nationality could not be covered by the terms ‘race’ or ‘ethnic origin’. Concerning contractual performance, even if Kuwaiti law was applicable to the contract, the Court ought to have denied its application, given the above-mentioned human-rights provisions, pursuant to the provisions of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I), i.e.  Art. 9 on overriding mandatory provisions of the lex fori  and Art. 21 on the forum’s public policy.

The plaintiff’s lawyer stated that his client will appeal the judgment. The full text of the judgment has not been published yet, but the Court has issued a press release (available here in German).