State-owned Arab airlines have repeatedly refused to carry Israeli travellers, invoking national boycott regulations. The debate was triggered by a decision of the Oberlandesgericht Frankfurt am Main: an Israeli national living in Berlin had booked a flight from Frankfurt to Bangkok with the state-owned Kuwaiti airline, with a stopover in Kuwait City. Although German law was applicable, the airline refused carriage because Kuwaiti law prohibits the transport of Israeli passengers.
The German Oberlandesgerichte declined to give effect to the Kuwaiti boycott law under Article 9 (3) of the Rome I Regulation, because its purpose contradicts fundamental values of the German legal order. At a second stage, however, they took the law into account as an actual impediment to performance under § 275 (1) of the Bürgerliches Gesetzbuch and thereby undermined the filtering function of European conflict-of-laws rules. At the same time, the Allgemeines Gleichbehandlungsgesetz (AGG) lacks an explicit prohibition of discrimination on grounds of nationality.
This position paper recommends amending § 21 (2) of the Luftverkehrsgesetz so that state-owned air carriers whose main shareholder supports a boycott that is impermissible under § 7 of the Außenwirtschaftsverordnung can no longer invoke impossibility under § 275 (1) of the Bürgerliches Gesetzbuch in order to refuse carriage. In addition, § 1 of the Allgemeines Gleichbehandlungsgesetz should be extended to include the characteristic of nationality.
