The Kuwaiti Boycott Act against Israel is without any legal effect but de facto constitutes a barrier to enter Kuwaiti territory

The Higher Regional Court (OLG) Frankfurt/Main states that the Kuwaiti Boycott Act against Israel is unacceptable in its content and without any legal effect within the German jurisdiction. Nevertheless, the plaintiff has no right to demand a flight from Frankfurt/Main to Bangkok with a stopover in Kuwait City because as an Israeli citizen he is not allowed to enter the transit zone of the Kuwaiti airport.

No. 42/2018

The plaintiff is an Israeli citizen and lives in Germany. Via an online travel portal, he booked an outward and return flight from Frankfurt/Main to Bangkok including a transit stop in Kuwait City with the defendant, a Kuwaiti airline. Shortly after, the defendant cancelled the booking after coming to know the plaintiff’s Israeli citizenship. During the process of booking the plaintiff had not revealed his citizenship since this particular information had not been asked for. The defendant has no influence on the details asked for in the travel portal’s input mask.

By his action, the plaintiff requests that the defendant should offer him a flight from Frankfurt/Main to Bangkok (and vice versa) at the earliest possible date including in each case a stopover in Kuwait City. In the alternative, the plaintiff requests monetary compensation.

The Regional Court (LG) Frankfurt/Main had dismissed the action. The plaintiff’s appeal to the Higher Regional Court (OLG) Frankfurt/Main has not been successful either.

The Higher Regional Court stated that the plaintiff has no right to demand a flight of the defendant, the fulfilment of the contract de facto being impossible because of the Kuwaiti immigration regulations.

The Court made the following key considerations:

To the action, German law is applicable. The contract of carriage was concluded between the parties via the online travel portal. The defendant may not refer to mandatory impossibility with respect to the Kuwaiti Boycott Act against Israel from 1964. According to this Act, the conclusion of a contract including an Israeli citizen may be illegal and subject to sanctions within the Kuwaiti judicial area. But according to international rules, the laws of another state do not necessarily have full legal effect within the German jurisdiction. In fact, the Kuwaiti Boycott Act is unacceptable because it is not in accordance with the German legal approach. The contents of the Act do not show any apparent criteria eligible for generalisation or internationalisation (like e. g. a UN embargo would) but provide unjustified collective punishments. Both the objects and purpose of the Kuwaiti Boycott Act are inconsistent with the German political approach and interests. In addition, European Union law is characterised by the principle of non-discrimination, e. g. on grounds of race or ethnic origin or citizenship. The Kuwaiti Boycott Act aims at discriminating against people because of their race and ethnic origin. This is confirmed by the ethnic composition of the Israeli people with a percentage of Jews of almost 75%.

According to the Court, the existence of the Kuwaiti Boycott Act however imposes an obstacle to performance on the defendant. The contract of carriage must be complied with particularly with regard to the stopover in Kuwait City. The airport transit zone though falls within the competence of the Kuwaiti sovereign rights. As a fact, immigration or admission to the transit zone is refused to Israeli citizens by the Kuwaiti authorities without the defendant having the possibility of influencing this practice. Hence, the defendant could only take the plaintiff to Kuwait City and take him back to Frankfurt/Main immediately which is practically useless. In this respect, the plaintiff is not in possession of the required travel documents which enable him to enter the transit zone of the Kuwaiti airport or to continue travelling to Bangkok.

The Court emphasised that it is not a matter for the courts to change this result which is - from the plaintiff’s point of view - very unsatisfying. Given the fact that the defendant may continue excluding Israeli citizens from his services because of the obstacle to

performance, it is rather a matter of foreign policy or international legislation to change this situation.

Finally, the Court rejected the plaintiff’s request for monetary compensation under the General Act on Equal Treatment (AGG). In this context, the plaintiff already failed to comply with the time limit of two months.

The judgment is not yet final. The plaintiff may apply for allowing an appeal by non-admission complaint to the Federal Court of Justice (BGH).

Higher Regional Court (OLG) Frankfurt/Main, judgment of 25 September 2018, 16 U 209/17
(first instance decision: Regional Court (LG) Frankfurt/Main, judgment of 16 November 2017, 2-24 O 37/17)

The full text of the judgment will soon be available at www.lareda.hessenrecht.hessen.de.

Kontakt für Pressevertreter
Pressesprecherin: Frau Dr. Gundula Fehns-Böer
Richterin am Oberlandesgericht; English version: Dr. Charlotte Rau, stellv. Pressesprecherin, Richterin am Oberlandesgericht
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