In Germany, no court decision has yet been issued regarding Article 313 and the COVID-19 crisis. However, in the German legal literature, there is an ongoing debate about this and the prevailing opinion considers COVID-19 and its effects as an “unpredictable, uncontrollable, unprecedented event”, which gives a good reason to apply Article 313. A right under Article 313 does not lead to the termination of a contract or to a result allowing an airline to suspend payments entirely. On the contrary, it will lead to an adaptation of certain payment obligations, which would take into account the interests of both parties. The possible outcomes are multiple and depend on the actual provisions of the MRO agreement and the bargaining power of each party, as these cases will rarely be brought before the courts. At Charman, the claimant claimed the costs of medical expertise in the amount of GBP 420.00 (including VAT). The report was received by a medical agency that was not a party to the MRO agreement. The defendant challenged the tax claimed on the ground that the rate of £200 plus VAT was reasonable in the absence of a breakdown of agency fees. When asked about the consideration of the matter, RCJ Woodburn reiterated that the parties had an obligation to assist the court in promoting the general objective and stated that the defendant was entitled to ask appropriate questions regarding the calculation of the fee for medical reports. However, what we have noted, what the defendant often seems to overlook, is that, in its judgment, RCJ Woodburn`s made it clear that there was no good reason to impose MRO phrases on parties that are not signatories to the MRO agreement. However, during the COVID-19 pandemic, most airlines have ceased (or almost) ceased operations for a significant period of time. In the case of an MRO agreement that calculates PBH fares on the basis of scheduled flight hours or requires a monthly or annual minimum, airlines may wish to adapt these payment rules for the period during which the fleet has remained on the ground.
Therefore, a well-negotiated PBH agreement should contain other provisions allowing, under certain conditions, to adapt payment obligations. First, the assumptions of the parties on which the specific PBH rate is based should be included in the contract. Secondly, the MRO agreement should define the consequences for payment obligations if the parameters adopted change. Parameters that may change include the hourly flight cycle ratio or acceptance rate used by engines, as well as fleet changes through aircraft entry and exit. These changes may affect the PBH fare that actually has to be paid, but a fleet reduction or longer grounding may also affect the assumed flight hours over a given period. This article deals with the contractual clauses and possible legal rights on which the right to adapt the payment obligations of an MRO agreement can be based. Many MRO agreements contain a provision that defines certain circumstances considered a force majeure event that exempt one or both parties from their contractual obligations, sometimes referred to as an “excusable delay clause”. Although such a provision sometimes involves “epidemics, quarantines and government acts”, it often concerns only the obligations of the MRI provider or, where it concerns the obligations of both parties, such a clause excludes the application to payment obligations. Therefore, in most cases, an airline cannot base a claim for payment adjustment on a force majeure clause in an MRO agreement. If an MRO (German) agreement requires an airline to pay a monthly or annual minimum or the pbH payment relates to scheduled flight hours and not actual flight hours and the agreement does not contain contractual provisions to adapt the airline`s payment obligations, the airline may base its right to the payment adjustment on Paragraph 313 BGB, in relation to the effects of COVID-19. . .
.