The recent decision (January 27) of the highest German regional court, the Oberlandesgericht (OLG) Frankfurt am Main, carrying the German State responsible for the long waiting periods imposed on passengers, is remarkable.

It has been argued that the passenger bears the risk of missing a flight due to increasing delays at airports, as it is not enough to observe the times recommended by airlines or airport entities. It is necessary to play it safe, following a general rule of prudence and thus arrive an hour or even two earlier.

Innovatively, the German court has now stated that passengers do not need to be prepared for indefinitely long waiting times in the security check that the State is in charge of.

Two women were affected by the length of security procedures – totally or partially carried out by private companies recruited by the State – concerning passengers and their luggage, causing the missed long-haul flight to the Dominican Republic.

The Frankfurt Federal Court upheld the decision of the first instance of August 5 2020, which compensated passengers for the purchase of new tickets and accommodation costs. They arrived at the airport at 8:15 am, completed the check-in at the company three hours before departure (9 am) – on that day, the airport only recommended two hours – and headed to the security checkpoint without delay, except for going to the bathroom, having coffee and buying sweets.

Departure to the Dominican Republic was at 11:50 am, boarding began at 10:50 am, and the boarding gate closed at 11:30 am. However, the passengers got through the security check too late, and when they arrived, the boarding gate was already closed.

The passengers then accused the Federal Police of an inadequate organisation of services in charge of private companies, but OLG Frankfurt did not recognise the violation of state obligations. The State did not violate any duties in organising the security check, namely by deploying sufficient personnel in the security check.

The reason was different, the compensation awarded under the principle of sacrifice or an effect equivalent to expropriation. Compensation for sacrifice constitutes a form of civil liability of the State for lawful acts due to individuals who suffer losses for the public interest.

The State’s intervention motivated a disproportionate sacrifice to the plaintiffs who missed their flight due to the long waiting periods imposed by security procedures, with passengers only having to observe the recommendations of the airport or the airline in that field and nothing more. They do not have to arrive earlier than recommended, as OLG Frankfurt expressly acknowledges.