Is Priority Security Illegal At German Airports?

It’s common around the globe to see priority security lanes for premium passengers. While security officials are responsible for conducting the actual screening of passengers and bags, airlines operating in terminals often have quite a bit of say in the flow of things, including the ability to create priority security lanes.

Germany is a country where you’ll find priority security lanes, and a German law professor has just published an interesting paper on why he believes this actually constitutes criminal bribery, and even those taking advantage of priority security are engaged in an illegal act.

It’s an interesting argument that I figured would make for a fun discussion (thanks to Constance and Klaus for flagging this)…

Why priority security may violate German laws

A lawyer claims that priority security at airports violates Germany’s laws. The crux of the argument is simple — under German law and in front of German authorities, everyone is considered equal when it comes to carrying out public tasks.

In 2022, Germany’s Federal Court of Justice (BGH) formally rejected the establishment of priority immigration queues at airports, since it would violate the concept of everyone being equal under the law. The argument here is that the same should apply to priority security lanes:

• The Federal Police in Germany oversees security screening at airports, and outsources that to private security companies; meanwhile the management of queues is outsourced to the airport operators, which work with airlines
• Airport operators are getting paid by airlines for offering fast track security lanes; in other words, part of the price for a premium flight ticket is used by airlines to buy the right to prioritize certain people at security checks
• It’s not surprising that the Federal Police allows the queues to be outsourced and controlled by a third party, since it reduces the government’s workload
• While the people controlling security lanes don’t directly work for the government, it’s argued that they’re performing a public task, since the queue forming in front of a security lane is essential for carrying out security, and the tasks are inseparable
• The fact that the police tolerates and oversees the use of priority security lanes means that public observers can only assume that the task is carried out with approval from the police

This lawyer argues that airport employees who are overseeing fast track security are committing a crime, and are liable for prosecution for bribery. Furthermore, those passengers using fast track security could be providing criminal aid and abetting with their contribution to maintaining the system.

The paper finishes by arguing that everyone who reads this story can no longer deny not being aware of the illegal activity they’re engaged in, and “all actors are therefore urgently advised to end the current fast lane practice immediately.” Hah.

Is there any merit to this argument?

I’m not a legal expert of any sort, let alone an expert on German law. So I’m not sure what exactly to make of this, though I’ll certainly share my (uninformed) thoughts.

I mean, to be perfectly honest, I think there’s some merit to this argument. It sounds like Germany is in the same boat as the United States when it comes to the current implementation of priority services at airports. In the United States, we don’t have priority immigration at airports for premium passengers, but we do have priority security.

The argument either for or against this is very much based on technicalities, and how you choose to view the distribution of responsibilities. Everyone is the same in the eyes of the government when they reach the actual screening checkpoint, but up until that point, is the government in charge or not?

If priority security were suddenly banned under German law, one has to wonder what that would mean for facilities like the Lufthansa First Class Terminal, which have private security screening. Would that be considered unfair, since there are restrictions on who can use that checkpoint? Or would it be fair, since the Lufthansa First Class Terminal is private and separate from the terminal, and the security checkpoint is just about allowing eligible passengers into a certain area?

Bottom line

A German lawyer is arguing that priority security at airports is illegal. German law requires everyone be considered equal by German authorities. Currently priority immigration queues aren’t allowed, while priority security screening is allowed.

It seems the reason for this distinction is that the airport operators control the queues, so it’s not technically the government discriminating against some passengers. The counterargument is that the German government is delegating this task, and what matters is what task is being performed, rather than what party is performing the task.

What do you make of this argument about priority security in Germany?