ECJ Advocate General proposes the Court to confirm its "Sturgeon"-Judgement
On May 15, 2012, ECJ Advocate General Bot has delivered his opinion in two pending cases where the national courts sought a review of the "Sturgeon"-Judgement. In this judgement, the Court of Justice had ruled that passengers whose flights are delayed may be treated, so far as the right to compensation is concerned, in the same way as passengers whose flights are cancelled. Thus, if they reach their final destination three hours or more after the arrival time as originally scheduled, they may seek flat-rate compensation from the airline, unless the delay has been caused by extraordinary circumstances.
In the two pending cases lodged by the Amtsgericht Köln (Cologne local court) and the High Court of Justice of England and Wales, Advocate General Bot sees no reason why the Court should reconsider its interpretation. That interpretation is based, amongst other things, on the very objective of the European legislation, which is to ensure a high level of protection for air passengers regardless of whether they are denied boarding or whether their flight is cancelled or delayed, since they are all caused similar serious trouble and inconvenience connected with air transport.
In his view, that interpretation is also consistent with the principle of equal treatment, by virtue of which passengers may not be treated differently depending on whether a flight has been cancelled or delayed when they suffer on that account similar damage consisting in a loss of time and thus find themselves in comparable situations so far as the right to compensation is concerned.
Furthermore, the Advocate General takes the view that EU law is compatible with the principle of proportionality. Compensating passengers whose flights have been delayed does not, in his view, result in an arbitrary and unduly severe financial burden on air carriers, particularly since the frequency of delays of more than three hours, which confer entitlement to compensation, appears to be limited. Moreover, airlines are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances.
The Advocate General observes that EU law is also compatible with the Montreal Convention and with the principle of legal certainty which requires that passengers and air carriers should know exactly the extent of their respective rights and obligations.
Finally, the Advocate General considers the submissions of certain airlines, which request that the Court limit the temporal effects of the judgment to be given. They submit that the interpretation given by the Court should not be relied on as the basis for passengers’ compensation claims prior to the date of judgment in the present cases, except with regard to passengers who have already brought court proceedings as at that date.
Advocate General Bot recalls that, as a rule, the Court’s judgments apply to legal relationships which arose and were established before the judgment ruling on a request for interpretation. He points out that the Court has already had the opportunity, in its judgment in Sturgeon, to rule on the question of compensation for passengers whose flights have been delayed and that it did not limit the temporal effects of that judgment. Accordingly, there is no need to limit the temporal effects of the judgment to be given in the present cases.
Source: ECJ press release 63/12 of May 15, 2012
Find full text of opinion here>>.
Germany: Supreme Court to hear cases on airline personnel strikes as "extraordinary circumstances"
On June 5, 2012, the German Civil Supreme Court (BGH) will hear two cases involving flight cancellations due to airline personnel strikes. In one case the appelate court (LG Köln) had held that the operating carrier may not refer to a strike of its own personnel as an "extraordinary circumstance", in the other case the second instance court (LG Frankfurt/Main) had decided to the contrary.
There is no consensus yet whether or not a strike of the opreation carrier's own personnel can constitute "extraordinary circumstances" pursuant to article 5 sec 3 of Reg. 261/2004. It may therefore well be that the BGH lodges another reference for a prelimiary ruling of the ECJ to get a binding interpretation.
USA: DOT issues guidance on aviation consumer information-related requirements
The U.S. Department of Transportation (DOT) issued on April 19 a notice to provide guidance to airlines and U.S. travel agents regarding compliance with the FAA Modernization and Reform Act of 2012. One of the issues addressed in the guidance letter is the requirement that, effective April 14, airlines and travel agents disclose to consumers countries that require the use of insecticides by airlines.
Guidance document available here>>.
UK: OFT fines British Airways in fuel surcharges price-fixing case
On April 19, 2012, the UK Office of Fair Trading (OFT) has announced its decision that British Airways (BA) and Virgin Atlantic Airways (VAA) engaged in anti-competitive practices in relation to the pricing of passenger fuel surcharges, and has imposed a fine of GBP 58.5 million on BA. VAA brought the matter to the OFT's attention and, under the OFT's leniency policy, has not been fined.
The OFT has concluded that between August 2004 and January 2006, BA and VAA co-ordinated their surcharge pricing on long-haul flights to and from the UK through the exchange of pricing and other commercially sensitive information. This decision brings the OFT's investigation to a conclusion.
Source: OFT press release 33/12 of 19 April 2012
EU Parliament gives green light to air passenger data deal with the US
A new agreement on the transfer of EU air passengers' personal data to the US authorities was approved by the European Parliament on Thursday. The deal sets legal conditions and covers issues such as storage periods, use, data protection safeguards and administrative and judicial redress. The agreement will replace a provisional deal in place since 2007.
Under the new agreement, US authorities will keep PNR data in an active database for up to 5 years. After the first 6 months, all information which could be used to identify a passenger would be "depersonalized", meaning that data such as the passenger's name or her/his contact information would be codified.
Source: EU Parliament News; for further details look here>>.
ECJ Advocate General Bot: compensation for denied boarding not limited to overbooking
According to Advocate General Bot, an air carrier must compensate passengers if they have been denied boarding on account of the rescheduling of their flight following a strike at the airport which took place two days beforehand and affected a previous flight. Only denied boarding justified on grounds relating to the personal situation of those passengers may exempt the air carrier from that obligation.
Following a strike by staff at Barcelona Airport (Spain) on 28 July 2006, the scheduled 11:40 flight from Barcelona to Helsinki operated by the air carrier Finnair had to be cancelled. Consequently, Finnair decided to reschedule its flights so that the passengers for the cancelled flight should not have too long to wait.
Accordingly, those passengers were taken to Helsinki (Finland) on the 11:40 flight the following day, 29 July 2006, and on a specially arranged flight departing at 21:40 hours on that day. The consequence of that rescheduling was that some of the passengers who had bought their tickets for the 11:40 flight on 29 July 2006 had to wait until 30 July 2006 to go to Helsinki on the scheduled 11:40 flight and on a 21:40 flight which was specially arranged for the occasion. Similarly, some passengers, like Mr Lassooy, who had bought their tickets for the 11:40 flight on 30 July 2006 and had duly presented themselves for boarding, went to Helsinki on the special 21:40 flight.
Taking the view that Finnair had denied him boarding, Mr Lassooy brought an action before the Finnish courts seeking an order for that air carrier to pay him the flat-rate compensation of €400 provided for by European legislation in respect of intra-Community flights of more than 1500 kilometres.
The Korkein oikeus (Supreme Court, Finland), before which the case was brought at final instance, has doubts as to the interpretation of the concept of ‘denied boarding’ and seeks a ruling from the Court of Justice in this regard.
In his Opinion delivered on April 19, 2012, Advocate-General Yves Bot states, first of all, that the concept of ‘denied boarding’ must be interpreted broadly and cannot be limited to overbooking. That finding is apparent not only from the travaux préparatoires for the adoption of the relevant European legislation, but also from the objective which it pursues, namely that of ensuring a high level of protection for air passengers.
The Advocate General also states that ‘denied boarding’ cannot be justified by grounds relating to the rescheduling of flights as a result of extraordinary circumstances, such as a strike at an airport. According to the Advocate General, the denial of boarding to passengers may be justified solely on grounds relating to the personal situation of those passengers.
Denied boarding is an individual measure taken by the air carrier arbitrarily against a passenger who has nevertheless satisfied all the conditions for boarding. That measure loses its arbitrary character only if the passenger himself commits a fault, for example by presenting invalid identity documents, or if, by his behaviour, he endangers the safety of the flight and/or of the other passengers, for example if he is inebriated or shows signs of violence. In such cases, the decision not to allow the passenger to board is attributable to the passenger himself, who cannot claim any compensation or care. On the other hand, the decision to deny boarding based on reasons which are wholly unrelated to the passenger concerned cannot have the effect of depriving him of all protection.
Moreover, given that the airport strike cannot be attributed to Finnair, that air carrier has the right, if it considers that it does not have to suffer the consequences of that strike, to seek compensation from the persons responsible, in accordance with the national law applicable.
Such an interpretation is not contrary to the principle of equal treatment, even though the fate of the passenger denied boarding by the air carrier, as a result of extraordinary circumstances, is more favourable than that of the passenger whose flight has been cancelled or delayed as a result of those circumstances since the former is compensated but the latter is not. The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. However, passengers who are the victims of a flight cancellation or delay are not in the same position as passengers to whom the air carrier has denied boarding. Whereas denied boarding affects one or more passengers, in cases of flight cancellation or delay all the passengers are concerned and affected in the same way.
Furthermore, where the flight cancellation or delay is due to extraordinary circumstances, the air carrier is not required to pay the compensation provided for by EU law since it had no control over those events. By contrast, that is not the case where a passenger is denied boarding after the air carrier has decided to reschedule flights owing to extraordinary circumstances. Simply by making that decision, the air carrier makes one or more passengers selected completely arbitrarily suffer trouble and inconvenience. For that reason, because the harm suffered is attributable to the air carrier, compensation remains payable in order to dissuade the carrier from resorting to such a practice and to give preference to calling for volunteers to surrender their reservations.
Source: ECJ press release No 45/12 of April 19, 2012
Full text of Opinion in case C-22/11, Finnair Oyj v Timy Lassooy available here>>.
European Union: airline black list updated
On April 3, 2012, the European Commission has adopted the 19th update of the European list of air carriers which are for safety reasons subject to an operating ban or operational restrictions within the European Union. Conviasa, an air carrier certified in Venezuela, was added to the list due to safety concerns. Following constructive consultations, Libyan authorities decided to adopt strong measures applicable to all air carriers licensed in Libya, which exclude them from flying into the EU until at least November 2012.
Source: EU press release IP/12/342 of 3/04/2012
Find updated list here>>.
ECJ Advocate General: no temporal or monetary limitation of the obligation to provide care to air passengers
In his opinion in case C-12/11 - McDonagh v Ryanair, delivered on 22.03.2012, ECJ Advocate General Bot came to the conclusion that circumstances such as the closure of airspace owing to the eruption of a volcano constitute extraordinary circumstances for the purposes of Reg. 261/2004. Additionally, the EU legislation does not imply any limitation – temporal or monetary – of the obligation to provide care (accommodation, meals, refreshments) to the passengers.
According to the Advocate General, that finding cannot call into question the validity of the EU legislation in relation to the principles of proportionality or non-discrimination. It does not appear to be disproportionate to impose on air carriers such an obligation to provide care in so far as they are free to pass on the resulting costs to airline ticket prices. What is more, that is a policy which has already been put into effect by Ryanair, which introduced a special levy in April 2011 in order to cover the costs which it had incurred in providing care to passengers whose flights had been cancelled owing to the eruption of the Icelandic volcano.
Nor, in the view of the Advocate General, does the obligation to provide care conflict with the general principle of non-discrimination, because the various modes of transport are not interchangeable as regards conditions of use.
Source: ECJ press release 32/12
Find full text of opinion here>>.
A video of the court session is available here>>.
USA: DOT fines ticket agent and Qantas for advertising violations
The U.S. Department of Transportation (DOT) fined ticket agent Unister USA, also known as Flights24.com, USD 30,000 for violating the Department’s rules on fare advertising and disclosure of code-share flights. An investigation by the Department’s Aviation Enforcement Office found that, from at least July 2011 through October 2011, ads on Unister’s website failed to disclose at the first point fares were displayed that additional taxes and fees would be imposed, including Unister’s service fee. Unister’s website violated DOT rules requiring any advertising that includes a price for air transportation to state the full price to be paid by the consumer, including all carrier-imposed surcharges. Until Jan. 26, 2012, only government-imposed taxes and fees assessed on a per-passenger basis, such as passenger facility charges, could be stated separately from the advertised fare, but they had to be clearly disclosed in the advertisement so that passengers could easily determine the full price to be paid. Internet fare listings were permitted to disclose these separate taxes and fees through a prominent link next to the fare stating that government taxes and fees were extra, and the link had to take the viewer directly to information where the type and amount of taxes and fees were displayed.
The Enforcement Office also found that Unister violated the Department’s code-share disclosure rule. Under code-sharing, an airline will sell tickets on flights that use its designator code, but are operated by a separate airline. DOT requires airlines and ticket agents to inform consumers, before they book a flight, if the flight is operated under a code-share arrangement, as well as disclose the corporate name of the transporting carrier and any other name under which the flight is offered to the public. From at least July through September 2011, Unister failed to disclose the name of the carrier providing the transportation when advertising code-share flights on its website.
In another case, the DOT assessed a civil penalty of USD 40,000 against Qantas Airways for violating federal aviation laws and the Department’s rules prohibiting deceptive price advertising in air travel. For a period of time in the fall of last year, Qantas displayed advertisements on numerous websites that did not provide any information on additional taxes and fees. Even after consumers clicking on the advertised fare were taken to a page on the carrier’s website where sample routes and prices were displayed, the type and amounts of additional taxes and fees could be seen only if a consumer scrolled to the bottom of the page.
Source: DOT press releases 27-12 and 28-12.
The consent orders are available at www.regulations.gov, docket DOT-OST-2012-0002.
Scotland: Lockerbie Update
New revelations produced by BBC Scotland suggest that Abdelbaset Ali al-Megrahi, the Libyan jailed for life following the 1988 Lockerbie bombing may not be guilty after all. Part of the evidence against him was that he was in Malta, and was identified by a key witness there, at the time the bomb which destroyed Pan-Am Flight 103 was placed in a suitcase and loaded on to the aircraft. The Maltese shopkeeper, Tony Gauci, identified Megrahi as the man he sold clothes to and which were later found in a suitcase which had contained the bomb. He claimed that Megrahi visited his shop, Mary's House, on 7 December 1988. It now appears that he was having an affair with a woman in Malta and that was the reason for his visit there. There has been controversy in respect of this date and that was one of the reasons giving rise to the investigation by the Scottish Criminal Cases Review Commission (SCCRC) which found that he may have suffered from a miscarriage of justice. It referred the case to the Scottish Court of Appeal. However, as al-Megrahi was (is) suffering from terminal cancer it was agreed that he would be released on compassionate grounds if he withdrew his appeal. Thus, the SCCRC report was never published, but it has now been seen by BBC Scotland.
In his precognition ( a legal statement given to defence lawyers before a trial) he explained that it was easy for him to travel between Libya and Malta. "As a Libyan Arab Airlines employee and as someone well known, both at Tripoli airport and at the airport in Malta, I could get away with not using a passport or an identification card at all, but simply by wearing my Libyan Arab Airlines uniform. This may sound ridiculous but it is true”.
He continued in the precognition, "If I wanted to do something clandestine in such a way that there would be absolutely no record at all of me going from Tripoli to Malta and back again, I could do it." However, according to BBC Scotland, his defence lawyers realised if the original trial had known how easily Megrahi could travel undetected to Malta it could have strengthened the prosecution case. According to the SCCRC document: "If the applicant (Megrahi) had spoken to this in evidence it would have removed the need for the Crown to establish the date of purchase of the items from Mary's House as 7 December 1988."
SCCRC investigators interviewed Megrahi in Greenock Prison and, according to the BBC report, discovered he had a mistress in Malta whom he may have visited twice in December, 1988 - including the night before the bombing. "It was possible therefore that the reason for his visit to Malta on 20 December was to meet a woman for this purpose," the SCCRC report said.
Reported to IFTTA by John Downes.
