Background check / Air Safety Act

Meaning and purpose of the Aviation Security Act (LuftSiG) & the background check.

The LuftSiG is, among other things, a consequence of the attacks of September 11, 2001 in New York. The LuftSiG regulates measures that are intended to prevent security risks / attacks in relation to air traffic.

• § Section 7 of the LuftSiG plays a central role in this context within the framework of background checks. Persons who can have a direct influence on the security of air traffic must undergo a background check in accordance with this regulation.

Scope of the check / criteria

A special feature here is that the check is not limited to the certificate of good conduct, but also includes a check of the Federal Central Register.

If - within the framework of the official information - doubts arise as to the reliability of the applicant, the aviation supervisory authority is also entitled to obtain information from the criminal prosecution authorities. This also applies to ongoing proceedings or suspensions that are not entered in the Federal Central Register.

This can represent a considerable hurdle for a positive background check.

♦ General criteria

The aviation security authority evaluates the reliability of the person concerned on the basis of an overall assessment of the individual case. According to the law, the required reliability is generally lacking if

• the person concerned has been sentenced to a custodial sentence, juvenile sentence or fine of at least 60 daily rates or to a lesser fine at least twice for an intentional criminal offense, if five years have not yet elapsed since the last conviction became final,
• the person concerned has been sentenced to a term of imprisonment of at least one year for a crime or for other intentional criminal acts, if ten years have not yet elapsed since the last conviction became final,
• there are factual indications that the person concerned is pursuing or supporting endeavors pursuant to Section 3 (1) of the Federal Act for the Protection of the Constitution or has pursued or supported such endeavors within the last ten years.

♦ Other criteria

However, a conviction below the threshold of 60 daily sentences is also relevant for the reliability check § 7 I a S.3 LuftSiG:

In the case of other convictions or the existence of other findings, it must be examined by way of the overall assessment pursuant to sentence 1 whether this gives rise to doubts about the reliability of the person concerned with regard to the safety of air traffic. Other information may include, in particular

• ongoing or discontinued preliminary or criminal proceedings,
• facts giving rise to the possibility of blackmail by third parties,
• facts giving rise to doubts about the person's commitment to the free democratic basic order,
• alcohol, drug or medication addiction or regular abuse of these substances,
• giving different or false identities in official transactions.

♦ Overall prognosis

Thus, an overall prognosis is always made. In particular, the item "ongoing or discontinued pre-trial proceedings" allows for a wide margin in this regard.

Effect of a criminal conviction on the background check

The problem here is that, from a purely criminal law perspective, e.g. the discontinuation of proceedings pursuant to Section 153a of the German Code of Criminal Procedure (StPO) is considered a success. Under aviation security law, however, there may already be doubts about the reliability.

It is therefore urgently recommended that you always bear this in mind. In particular, if you seek legal advice, you should emphatically point out to the advising lawyer that you are dependent on a positive reliability check within the meaning of § 7 LuftSiG.