The journey for the- and passenger transport law competent X. Civil Senate today on the effectiveness of a clause in the terms and conditions of the Frequent Flyer- und Prämienprogramms “Miles & More” the defendant Lufthansa AG decided, that the sale, the exchange, offer for auction or other transfer of award documents such as award tickets to third parties is strictly prohibited. The terms and conditions see this,, that award documents can only be given to persons, which the participant is personally connected through a mutual relationship.

In June 2010 recognized the defendant to the plaintiff the highest frequent flyer status of their program to (HON Circle Member). In January 2011 booked the plaintiff under his redeeming miles mileage account an award ticket for flights from Frankfurt to Los Angeles and New York to Frankfurt on the name of a third party. The defendant subsequently announced the contract without notice and deprived the plaintiff of the frequent flyer status, because he had not sold by him booked award tickets at one with him through a personal relationship connected person.

By its action, the applicant seeks a declaratory judgment, that his membership in the frequent flyer- and rewards program the defendant had not been completed and was continuing its status as HON Circle Members, and the identification of, that the defendant is obliged to compensate for the loss incurred because of the termination of his membership damage. He also seeks a declaration, – other than those provided in the Conditions of Participation – To be eligible, To transfer miles and award documents without restrictions on third parties and redeem miles acquired without time limit at the defendant.

The district court dismissed the action. On appeal by the plaintiff, the Court of Appeal upheld the complaint has mostly rejected and this only in terms of the coveted determination of damages, the defendant and the unlimited convertibility of miles. The Court of Appeal has adopted, the regulations on non of miles and to prohibit the disclosure of award documents presented an unreasonable disadvantage of the contractor in accordance with § 307 Abs. 1 and Abs. 2 No.. 1 BGB* dar; the based on a violation of the prohibition on disclosure extraordinary dismissal was ineffective thereafter.

The Federal Court has overturned the Court of Appeal ruling on the appeal by the Respondent, has been detected so far, to the detriment, and rejected the revision of the applicant.

The offered by the defendant “Miles & More”-Program is it is a customer loyalty program, for which there is no legally regulated model. As a provider of such a program, the defendant may, therefore, nature and extent of performance, they will promise their customers for their loyalty, determine its own responsibility. You could use it to set as the main power, that flight awards, which the participant does not want to use it yourself or can, only as gift and only persons allowed to be left, which the program participant is personally connected through a mutual relationship. The normalized in the terms and conditions forbidding the sale of award documents to third parties linked thereto and describes the promised power of the defendant further. It is thus not the content checking under § 307 Abs. 3 Sentence 1 BGB subject to restriction or modification of this power is. The defendant has therefore effectively terminated the membership of the plaintiff in their frequent flyer program for violating the prohibition of disclosure of award documents to third parties and could also avoid the frequent flyer status with immediate effect him. The other applicant's claims are given the termination of his membership due to the termination also unfounded.

Judgment of 28. October 2014 – X ZR 79/13

LG Köln - Judgment 23. February 2012 – 14 The 245/11

OLG Köln - Judgment 12. June 2013 – 5 You 46/12

Karlsruhe, the 29. October 2014

* § 307 BGB – Inhaltskontrolle

Provisions in the Terms and Conditions are invalid, if they penalize the contracting party of the unreasonable contrary to the requirement of good faith. An unreasonable disadvantage may also arise, that the provision is not clear and understandable.

An unreasonable disadvantage is deemed in doubt, if a determination

1.with essential basic principles of the legal regulation, of the departing, can not be reconciled or

2.essential rights and obligations, arising from the nature of the contract, so restricts, that the purpose of the contract is endangered.

Paragraphs 1 and 2 and §§ 308 and 309 apply only to provisions in the Terms and Conditions, be agreed by the laws of different or these supplementary regulations. Other provisions may under paragraph. 1 Sentence 2 in connection with paragraph 1 Sentence 1 be ineffective.

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