ECJ Case C-549/07 (Wallentin-Hermann v Alitalia)

AN AIR CARRIER MAY NOT AS A GENERAL RULE REFUSE TO PAY COMPENSATION TO PASSENGERS FOLLOWING THE CANCELLATION OF A FLIGHT ON ACCOUNT OF TECHNICAL PROBLEMS IN THE AIRCRAFT

Judgement to be published 5pm today!

Compensation may however be refused if the technical problems stem from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier and are beyond its actual control

The Regulation 261/2004/EC on compensation and assistance to air passengers provides that, in case of cancellation of a flight, the passengers concerned have the right to compensation by the air carrier unless they are informed of the cancellation of the flight in due time. An air carrier is not however obliged to pay that compensation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

Mrs Wallentin-Hermann booked three seats on a flight with Alitalia from Vienna to Brindisi (Italy) via Rome for herself, her husband and her daughter. The flight was scheduled to depart from Vienna on 28 June 2005 at 6.45 a.m. and to arrive at Brindisi on the same day at 10.35 a.m. After checking in, the three passengers were informed, five minutes before the scheduled departure time, that their flight had been cancelled. They were subsequently transferred to an Austrian Airlines flight to Rome, where they arrived at 9.40 a.m., that is 20 minutes after the time of departure of their connecting flight to Brindisi, which they therefore missed. Mrs Wallentin-Hermann and her family arrived at Brindisi at 14.15 p.m.

The cancellation of the Alitalia flight from Vienna resulted from a complex engine defect in the turbine which had been discovered the day before during a check. Alitalia had been informed of the defect during the night preceding that flight. The repair of the aircraft, which necessitated the dispatch of spare parts and engineers, was completed on 8 July 2005.

Following Alitalia’s refusal to pay her compensation of EUR 250 and EUR 10 for telephone charges, Mrs Wallentin-Hermann brought legal proceedings. Alitalia having lodged an appeal
against the judgment at first instance which found against it, the Commercial Court, Vienna, must now decide whether the technical problems which led to the cancellation of the flight were covered by ‘extraordinary circumstances’ which exempt from the obligation to pay compensation. The Commercial Court made a reference to the Court of Justice of the European Communities to enable it to interpret that concept.

In its judgment of today, the Court finds that in the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity. Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance do not constitute, in themselves, ‘extraordinary circumstances’.

However, it is not ruled out that technical problems are covered by ‘exceptional circumstances’ to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism.

The Court states that, since not all extraordinary circumstances confer exemption, the onus is on the party seeking to rely on them to establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken all reasonable measures so that it is relieved of its obligation to pay compensation.

Source: Court Press Release No 100/08

USA: couple sues United Airlines for violent marital quarrel

Airlines are frequently sued for the acts of drunken passengers, typically by flight attendants or other passengers who suffered harm from an unruly traveler during a flight. But this time a husband and wife are suing United Airlines for "negligently" overserving alcohol during a flight from Osaka, Japan, to San Francisco, saying the carrier's drinks fueled domestic violence between them. The lawsuit is may hinge on whether the airline, in effect, operated a flying bar subject to the same legal liabilities as earthbound drinking establishments. But as the alleged over-serving occurred on an airplane crossing the Pacific Ocean, it may be subject to protocols spelled out under the Warsaw Convention.

Source: chicagotribune.com; find article here>>.

Judgment by CFI (ECJ) re Ryanair v Commission and AEA

Case T-196/04 (Eighth Chamber, extended composition)
Judgment as of Dec 17, 2008

State aid regarding an agreements entered into by the Walloon Region and the Brussels South Charleroi airport with the claimant

Application of the private investor in a market economy test according to Art 87 ECT


The applicant, Ryanair Ltd, is Europe’s original and largest low fares airline. It has pioneered in Europe the ‘low cost’ business model, which involves minimising costs and maximising efficiency in all areas of its business so as to offer the lowest fares in every market and thereby attract high passenger volumes.
At the beginning of November 2001 Ryanair entered into two separate agreements (‘the agreements at issue’), one with the Walloon Region, the owner of Charleroi Airport, the other with Brussels South Charleroi Airport (BSCA): [para 5 et seq]

1. Granting Ryanair a reduction of some 50% as compared with the regulatory level of landing charges and undertook to compensate Ryanair for any loss of profit arising directly or indirectly from any change by decree or regulation of airport charges or opening hours;
2. Undertaking to base between two and four aircraft at Charleroi Airport and to operate, over a fifteen-year period, at least three rotations a day per aircraf and also undertaking, in the event of its ‘substantial withdrawal’ from the airport, to reimburse all or part of the payments made by BSCA

Those measures were not notified to the Commission. [para 10]
On 12 February 2004, having analysed the comments of the interested parties and of the Kingdom of Belgium, the Commission adopted Decision 2004/393/EC concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi (OJ 2004 L 137, p. 1) [para 12]
The Commission concluded that ‘the advantages granted to Ryanair by the Walloon Region and by BSCA are State aid according to Art 87 para 1 ECT. The Commission essentially concludes that the aid granted by the Walloon Region is incompatible with the common market and furthermore that the Commission considers that aid for the opening of new routes, where the amount does not exceed 50% of the start-up costs and the duration is less than five years, is compatible with the common market. [para 17 et seqq]

The Court of First Instance of the European Communities annuled the Commission Decision in dispute 2004/393/EC of Feb 12, 2004 on the grounds, that
While it is clearly necessary, when the State acts as an undertaking operating as a private investor, to analyse its conduct by reference to the private investor principle, application of that principle must be excluded in the event that the State acts as a public authority. [para 85]
It must be held that the actions of the Walloon Region were economic activities. The fixing of the amount of landing charges and the accompanying indemnity is an activity directly connected with the management of airport infrastructure, which is an economic activity. [para 88]
In light of all of the foregoing, it must be concluded that the Commission’s refusal to examine together the advantages granted by the Walloon Region and by BSCA and to apply the private investor principle to the measures adopted by the Walloon Region in spite of the economic links binding those two entities is vitiated by an error in law. [para 102]
Consequently, in light of the Commission’s error of law, the claims of the applicant must be upheld and the contested decision must be annulled; there is no need to examine the arguments in support of the first plea in law. [para 105]
The Judgment ist available in full text >>here<< and several languages: just change the 2 letters after "lang=" within the link

Europe and Canada agree to open-skies deal

The European Union and Canada have agreed to an open-skies planthat will make Europe-Canada one of the most liberal aviation markets in the world. When the plan is completely phased in, European nationals will be able to establish operations in Canada and freely invest in Canadian airlines, and vice versa. Consumer-protection provisions also will be included.

The deal is considerably more liberal than the U.S.-E.U. aviation agreement, because it includes a commitment to eventually permit cabotage.

Source: Travel Weekly, find article here>>.

Germany: one more request for preliminary ruling on Reg. 261/2004

The issue raised by German Supreme Court (BGH) once again relates to technical problems as a potential excuse for cancellation of flights. BGH asked European Court of Justice for preliminary ruling on
1) whether technical defects can constitute "extraordinary circumstances" according to the Regulation,
2) in case of affirmation, whether this would include defects affecting the airworthiness of the aircraft or the safe performance of the flight,
3) whether it could be regarded sufficient as having taken all reasonable measures, if the carrier had observed maintenance instrcutions of the aircraft producer as well as safety provisons by the competent authorities or if the defect couldn't have been avoided even when these instructions and provisions had been observed;
4) in case of affirmation, whether this would be sufficient to exempt the carrier from compensation payments or whether the carrier for that purpose in addion would have to prove that cancellation itself couldn't have been avoided by taking all reasonable measures.

The BGH decision is avialable for download in German here>>.

Austria: another water slide case decided by Supreme Court

Once again Austrian Supreme Court (OGH) had to deal with an accident at a water slide: 16 year old plaintiff used defendants' water slide by sliding down in a kneeling position. Due to the elevated barycentre in this position he tilted, fell and hurt his teeth. His claim for compensation for pain and suffering was dismissed by OGH as the water slide was buildt in accordance with European technical standards and pictographs at the entrance showed that it was only allowed to slide down in a sitting or horizontal position. OGH held there was no obligation to explicitly advise of forbidden and dangerous sliding positions.

OGH decision available for download in German here>>.

Maritime and bus/coach passengers' rights

These two proposals based on Art 71 para 1 (transport legislation) respectively in connection with Art 80 para 2 (sea transport legislation) will be subject to the codecision-procedure.

One of the mentioned proposals is available right now:

COM (2008) 0817 final (bus and coach passengers):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0817:FIN:EN:PDF

the second shall be available tomorrow:
COM (2008) 0816 final (sea and inland waterway passengers)

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0816:FIN:EN:PDF

If you change the forth and fifth to last letter (DE, FR, ES, IT, PT, etc) you may find the documents in all official languages or you search 

Stephan
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United Nations: use of military force against pirates reauthorized

Days after pirates shot at an Oceania Cruises ship, the United Nations renewed the authorization for countries to use military force against pirates operating in waters off Somalia. The 15-nation council unanimously voted to extend the right of countries’ military forces to seize and dispose of “boats, vessels, arms and other related equipment used or suspected of being used for piracy, which has recently reached a peak off the coast of the Horn of Africa country.” for one year.

Source: Travel Weekly; find article here>>.

Europe: PhoCusWright predicts European online travel bookings to increase by 19 percent in 2008

According to the fourth edition of PhoCusWright's European Online Travel Overview, online sales growth for leisure/unmanaged business travel for 2008, projected at 19 percent, is significantly greater than the 3 percent rate expected for the European travel industry as a whole. Internet bookings of leisure/unmanaged business travel will represent 29 percent of the €246 (US$310) billion European travel industry at the close of 2008.

Source: eTurboNews; find article here>>.

European Commission proposes new rights for bus and maritime passengers

The Commission adopted today two legislative proposals establishing sets of rights for passengers using bus and maritime services on both domestic and international routes. Rights include minimum rules on information for all passengers before and during their journey, assistance and compensation in the event of interruptions of journeys, measures in the event of delays and specific assistance for persons with reduced mobility. Like in the air and rail sectors, proposals foresee independent national bodies for settlement of disputes.

"The EU cannot afford different levels of rights for passengers depending on which mode of transport they travel with. With these two new regulations, we will cover all transport modes. All passengers can make their choice of preferred mode of transport knowing that their rights are equally enforced irrespective of the means", said Antonio Tajani, Vice-President of the European Commission responsible for transport.

Rights of persons with reduced mobility

Disabled passengers and passengers with reduced mobility are often prevented from travelling by bus and ship due to lack of accessibility of these services and the inexistence of necessary assistance for their needs.

The proposals address these problems by forbidding any discrimination on grounds of disability or reduced mobility with regard to booking a journey or boarding a vehicle or ship. Assistance is provided free of charge on condition that the passenger has notified a need for it in advance and arrives at the terminal or port at a predetermined time prior to the scheduled departure. Personnel of companies and staff of bus terminals or ports should have appropriate knowledge with regard to provision of assistance to disabled persons.

Compensation and assistance to passengers when their journey is interrupted

The proposals foresee that in case of interrupted or cancelled journeys, companies are obliged to provide passengers with adequate information, proper assistance and reasonable alternative services.

Companies failing to meet these requirements ought to pay a compensation calculated on the basis of the ticket price.

Liability for death and injury of passengers

The proposals set out the rules on companies' liability for passengers and their luggage. Passengers will be entitled to uniform compensation levels and will benefit from harmonised rules on liability.

Moreover, under certain conditions companies may not contest damages up to a certain amount in case of an accident. Passengers suffering an accident are entitled to advance payments in order to address economic difficulties that they or their families may face as a consequence of death or injury.

Treatment of complaints and means of redress

The opening of the market has not raised quality standards and services as it was expected, including better enforcement of passenger rights, user-friendly means of settling disputes and means of redress to be used by all companies.

The lack of common procedures isolates passengers, having to cope with different procedures and deadlines.

EU countries will have to set up enforcement bodies responsible for ensuring the implementation of these regulations on their territory. If a bus or ship passenger considers that any of these rights have not been respected, he can bring the matter to the attention of the company. If he is not satisfied with the response, a complaint can be made to the national enforcement body designated by the country concerned.

Source: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1886&format=HTML&aged=0&language=EN&guiLanguage=en

"European Commission steps up pressure on airlines to ensure websites selling tickets fully comply with EU law"

According to the EU Press Room, "On the eve of a meeting of 27 national enforcement agencies and stakeholder groups in Brussels, Vice President Tajani, EU Transport Commissioner and EU Consumer Commissioner Meglena Kuneva have stepped up pressure on airline companies selling tickets on the web to meet their legal obligation to fully comply with all the requirements of EU law. In a joint letter to the airline representatives, the two Commissioners have set out a 30 point checklist of consumer rights which all web pages selling air tickets must respect. Following industry feedback, the checklist will be consolidated. The Commission's letter requests that members of the airline associations amend all websites to ensure they fully comply with all the listed obligations. A user friendly version of the checklist should also be made available on websites for consumers. The letter informs the airline representatives that the Commission intends to make public the results of 'health check' of the sector- an independent study which will identify compliant and non-compliant operators - in May 2009. The work with industry is taking place in parallel with additional efforts by the Commission to increase enforcement controls at national level. Commission Kuneva addressed Ministers at the Competition Council on 1st December 2008 calling on them to concentrate all the necessary additional efforts and resources on the airline investigation to enable a final wrap up in May 2009. The letter from Vice President Tajani and Commissioner Kuneva makes it clear that if national authorities persistently fail to act on violations of the law, the Commission would need to consider infringement procedures."

This release is available in full text.

EU-Ombudsman: air passenger rights (Air France)

The European Ombudsman, P. Nikiforos Diamandouros, has opened an investigation into whether the European Commission is fulfilling its responsibility to ensure that EU rules on air passenger rights are properly applied in the Member States. This follows a complaint from a German traveller, whose Air France flight was cancelled. He claimed that he received no assistance or compensation from Air France and that the responsible French supervisory body also failed to help him.
The complainant turned to the Commission but was not satisfied with its response. In his complaint to the Ombudsman, the German citizen alleges that the Commission is failing to ensure that EU Member States are properly applying the rules on compensation and assistance to passengers, in the event of denied boarding and of cancellation or long delay of flights.

Background
In autumn 2007, the German traveller wanted to return from Madagascar to Germany, via Paris. However, the connecting Air France flight was cancelled because of a strike and he had to organise his own trip back. According to the complainant, he did not receive any assistance from Air France and his requests for compensation were rejected by the airline.
The complainant then forwarded his case to the responsible supervisory body in France, the French Directorate-General for Civil Aviation (DGAC). When he did not get any replies from the DGAC, he turned to the Commission for help. The Commission replied that it would only intervene if there was enough evidence of systemic problems with the implementation of rules on air passenger rights in a Member State. It invited the complainant to keep the Commission informed about his case.
After two further e-mails to the Commission remained unanswered, the complainant turned to the Ombudsman. In his complaint, he alleged that the Commission failed to deal properly with his complaint and that it is failing to ensure that the Member States give effect to air passenger rights. The Ombudsman has asked the Commission to provide its opinion by 28 February 2009.
The European Ombudsman investigates complaints about maladministration in the EU institutions and bodies. Any EU citizen, resident, or an enterprise or association in a Member State, can lodge a complaint with the Ombudsman. The Ombudsman offers a fast, flexible and free means of solving problems with the EU administration. For more information: http://www.ombudsman.europa.eu

Source: http://europa.eu/rapid/pressReleasesAction.do?reference=EO/08/15&format=HTML&aged=0&language=EN&guiLanguage=en

European Court of Justice: Preliminary Ruling instituted on Warsaw Convention

In a case of a plaintiff claiming damages for being injured when falling on the runway at Luxembourg Airport as she was about to enter the aircraft, on Sep. 1, 2008, a Luxembourg court has referred the following questions to the European Court of Justice:

1. Does the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended at The Hague on 28 September 1955, to which Regulation (EC) No 2027/97 refers, form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC?
2. Must Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, in the version applicable at the time of the accident, namely 21 December 1998, be interpreted as meaning that, with regard to issues for which no express provision is made, the provisions of the Warsaw Convention, in this case Article 29, continue to apply to a flight between Member States of the Community?
3. If the answer to the first and second questions is in the affirmative, is Article 29 of the Warsaw Convention, in conjunction with Regulation (EC) No 2027/97, to be interpreted as meaning that the period of two years laid down in that article can be suspended or interrupted or that the carrier or its insurer can waive that time-limit, by an act deemed by the national court to constitute recognition of liability?

Case C301/08 - Irene Bogiatzi v Deutscher Luftpool

Caribbean: Hurricane Season Summary

The 2008 season produced 16 named storms, ranking it as one of the more active seasons in the 64 years since comprehensive storm records began. The 2008 season ranks second in destructiveness, causing up to $54 billion in damage, and is the only season to feature a major hurricane (Category 3 or higher) every month from July through November.

Source: Travel Weekly; find article here>>. (free registration required)

Details on this year's as well as previous hurricane seasons are available here>>.