In a legal dispute that has attracted international attention, the private highway operator A1 mobil has filed a claim against the Federal Republic of Germany for damages amounting to EUR 788 million. The action was based on a claim for adjustment of the contract due to the discontinuation of the basis of the contract. In the plaintiff’s view, the unforeseeable decline in traffic subject to tolls due to the global economic crisis in 2008/2009 justifies a claim for contract adjustment and additional compensation.

The Hanover Regional Court has now rejected this claim in the first instance and dismissed the action brought against the Federal Republic of Germany represented by KPMG Law.

According to the Hanover Regional Court, the operating company had assumed the traffic volume risk. It is clear from the concession agreement concluded between the parties and the contract negotiations conducted in advance that the parties had recognized the traffic volume risk but had clearly assigned it to the plaintiff. The applicant’s assumption of the traffic volume risk was also not limited. The parties had not agreed on a fluctuation corridor by agreeing on a minimum or maximum remuneration. The plaintiff had worked out the calculation on which its bid was based on its own responsibility and now had to bear the risk of a temporary drop in traffic volumes.

Dr. Matthias Aldejohann and Dr. Torsten Göhlert were active on behalf of the Federal Republic of Germany.

Dr. Matthias Aldejohann: “The Hanover Regional Court has dismissed the action brought by A 1 mobil with convincing arguments. The court rightly emphasized that the plaintiff had assumed the traffic volume risk. Based on this specific allocation of risk, the plaintiff is not entitled to a claim based on supplementary interpretation of the contract or due to the lapse of the basis of the contract.”