Friday, July 17, 2009

USA: no testimony of FBI agents regarding 9/11 probes

In an order relating to three wrongful death cases and 19 property-damage cases following the 9/11 attacks, U.S. District Judge Alvin Hellerstein in Manhattan denied a motion by the airlines to question six current and former FBI agents. The airline defendants had hoped to show at trial that the government's failure to apprehend the terrorists and stop the attacks was so considerable that it mitigates and excuses any alleged faults of the airlines.

The judge wrote that the government's failures to detect and abort the terrorists' plots would not affect the aviation defendants' potential liability. The judge also denied a motion to admit the 9/11 Commission report as a whole as evidence in the case, instead only admitting the chronology provided in the report.

Source: Dow Jones Newswires; find article here>>.

Thursday, July 16, 2009

German Supreme Court (BGH): no price reduction for delayed flight

Plaintiff had booked a flight from Frankfurt/Main (FRA) to Phoenix (PHX) via Washington, D.C. (DCA). The flight from FRA to DCA was scheduled for departure on Oct. 7, 2006, 13:25 hrs. Departure was delayed to 17:00 hrs and plaintiff missed his conneting flight to PHX. He claimed for compensation under Reg. 261/2004 as well as price reduction.

As in case Xa ZR 78/08, BGH held that missing a connecting flight due to a delay of the feeder would not constitute "denied boarding" under Reg. 261/2004.

BGH furthermore held that a contract for flight carriage normally could not be regarded a contract whereas time is of absolute essence in a meaning that the whole contract would lapse if the scheduled time was missed. Neither could a flight delay be regarded as deficient service entitling passengers to a price reduction. Plaintiff therefore could only have sued for any damages caused by the delay.

BGH 28.05.2009, Xa ZR 113/08; judgement avialable in German here>>.

Thursday, July 09, 2009

European Court of Justice: court of place of departure or arrival compentent for compensation claims under Reg. 261/2004

In a judgement rendered today (Case C-204/08, Rehder v. Air Baltic), ECJ held that neither the location of the head office of the company operating the flight nor the place where the air transport contract was entered into is conclusive with regard to the choice of the court having jurisdiction in regard to claims for flat-rate compensation under Reg. (EC) 261/2004.

The place of the head office or the principal place of establishment of the airline concerned does not have the necessary close link to the contract. The operations and activities undertaken from that place, such as, in particular, the provision of an adequate aircraft and crew, are logistical and preparatory measures for the purpose of performing the contract relating to air transport and are not services the provision of which is linked to the actual content of the contract. The same is true with regard to the place where the contract for air transport is concluded and the place where the ticket is issued.

The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, the ‘places of departure and arrival’ having to be understood as those agreed in the contract of carriage in question, made with one sole airline which is the operating carrier.
Each of those two places has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, ensures the close connection between the contract and the court having jurisdiction. Consequently, a claim for compensation following the cancellation of a flight may be brought, as a matter of choice on the part of the passenger concerned, before the court having territorial jurisdiction over the place of departure or of arrival.

Source: ECJ press release No 62/09;
Full text of judgement avialable here>>.

Israel: Netanyahu stops VAT on tourism

To the dissatisfaction of the Treasury, Prime Minister Netanyahu cancelled the recommendation for the imposition of a 16.5 percent VAT on the purchase of foreign tourist services in Israel. The heads of the tourism industry said that the Prime Minister has made the correct decision at a time when the number of foreign tourists coming to Israel was falling.

Source: eTurboNews; find article here>>.

UK: new departure tax detrimental to tourism?

ETOA, which represents inbound European tour operators warns UK government to go ahead with plans to increase Air Passenger Duty (APD) next November while the Netherlands and Belgian governments have this month abolished departure taxes in an effort to give a stimulus to tourism through their international airports. ETOA fears that APD could make the UK an expensive destination for the start and end of group tours to Europe and the country would be looking increasingly like an optional add-on than a key element of a visit to Europe for many in-bound long-haul travelers.

Source: eTurboNews; find article here>>.

Wednesday, July 08, 2009

USA: cruise industry supports proposed safety legislation

Contrary to its previous position, on Monday the ship industry supported proposed federal safety legislation, which would provide cruise ships with increased security.

The bill aims to make reporting crime aboard ships mandatory and require ships to install security latches and peepholes in cabin doors. Along with security precautions, ship physicians would also have to be trained in sexual assault examinations.

Source: TravelAgentCentral; find article here>>.

Tuesday, July 07, 2009

European Court of Justice: Penalty on Greece for Non-Recovery of illegal State Aid to Olympic Airways

In 2002, the Commission took the view that certain aid granted by Greece to Olympic Airways was incompatible with the common market for failing to comply with certain conditions initially laid down. The aid had to be recovered without delay. Faced with inertia from Greece, the Commission first made an application to the Court in 2003. A judgment holding that Greece had failed to fulfil its obligations was delivered in 2005.

Following difficulties encountered by Greece in implementing that judgment, the Commission brought a new action before the Court, seeking a declaration that Greece had not complied with the Court's judgment and the imposition of a periodic penalty payment and a lump sum penalty payment against Greece.

The Court today delivered a second judgment on failure to fulfil obligations, accompanied by a dual financial penalty: a periodic penalty payment and a lump sum penalty payment.

The Court found that Greece's failure to fulfil obligations has lasted for more than four years. It concerns the common market, the establishment of which is an essential task of the European Community. Moreover, the control of aid to air transport is of considerable importance, since that market is, by its nature, a cross-border market. However, the amounts of aid in respect of which Greece has not proved repayment constitute only a relatively small part of the total sum.
The Court therefore imposed upon Greece a periodic penalty payment of EUR 16 000 per day of delay in implementing the judgment of 2005, counting from one month after the delivery of the present judgment, in order to allow Greece to demonstrate that it has ended the failure to fulfil obligations.

The Court recalled that cumulation of the two penalties in based on the capability of each to fulfil its own objective and depends on the circumstances of each case. The Court, on a just assessment of the circumstances of this case, determined the amount of the lump sum penalty payment at EUR 2 million.

Source: ECJ press release 59/09 of July 7, 2009; find full text here>>.

Monday, July 06, 2009

France: passenger demonstrations following Yemenia crash

In France potential passengers –mostly from the Comores community - are refusing to fly again with Yemen flag carrier, denouncing the poor quality. They ask French authorities to ban the airline from French and even EU skies. It is an unprecedented move against an airline with serious potential consequences for the airline industry: Passengers forcing an airline to out of a market could create a precedent open a new era in the relations between airlines and their customers.

Following demonstrations Yemenia announced to “temporarily” suspend its flights to and from Marseille-Provence airport and finally announced to also suspend its flights from Paris until conditions are improving. Anyway, Yemenia will be forced to dramatically improve its safety.

Source: eTurboNews; find Article here>>.

UNWTO: international tourism down by 8%

According to the June edition of the UNWTO World Tourism Barometer international tourism declined by 8% between January and April compared to the same period last year. Destinations worldwide recorded a total of 247 million international tourist arrivals in those four months, down from 269 million in 2008. Given the changes in the outlook UNWTO has revised its forecast for the full year 2009. Taking account of the results for the first four months of the year and the current market conditions, international tourism is now forecast to decrease by between -6% and -4% in 2009, as the pace of decline is expected to ease during the remainder of 2009.

Source: UNWTO press release of July 2, 2009; find full text here>>.

Thursday, July 02, 2009

European Union: Commission to strengthen systems to enforce consumer law

Today the European Commission adopted a "consumer enforcement package" to strengthen the EU-wide enforcement of consumer rules. The package consists of: a Communication setting out five priority areas for action, and a report on the first two years of application of the Consumer Protection Cooperation (CPC) Regulation1, which established an EU wide network of public authorities enforcing consumer rules in the Member States ("CPC Network"), for example, with EU wide investigations into websites selling airline ticket or ringtone subscriptions for children. Effective enforcement of consumer law is major priority for EU consumer policy - both in terms of ensuring that consumers feel the full benefits of their consumer rights in their daily lives, as well as establishing a level playing field for firms in a competitive single market.

Source: EU press release IP/09/1080 of 2 July 2009; find full text here>>.

USA: lawmakers seek assurance on privacy of passenger data

U.S. Federal lawmakers want to know what will happen to sensitive data of more than 150,000 travelers after the country’s leading airport secruity fast-lane company ceased operation last week. The House Homeland Security committee asked the TSA in a letter last Thursday to explain what it knows about the privacy of the data of the 165,000 customers of the privately-issued Clear pass. That data trove left a lot of unanswered questions after Clear suddenly closed.

Source:; find article here>>.

Utah: entrance to bars simplyfied to boost toursim

For 40 years, Utah required customers to become a member of a private club before they were allowed to set foot in a bar. Now this requirement was eliminated in an effort to boost the state's $7 billion-a-year tourism industry and make the state appear a little less quirky to outsiders.

Source: USA today; find article here>>.

Cancellation or Delay - some 'Highlights' of Advocate General Sharpston's Opinion


In the explanatory memorandum to its original proposal for a regulation, the Commission noted, at point 20, that ‘[c]ancellation by an operator … represents a refusal to supply the service for which it has contracted, except in exceptional circumstances beyond its responsibility, such as political instability, severe weather conditions, inadequate security and unexpected safety failures. For the passenger, cancellation in ordinary circumstances, for commercial reasons, causes unacceptable trouble and delay, particularly when not warned in advance.’ At point 23, it stated: ‘Although passengers suffer similar inconvenience and frustration from delays as from denied boarding or cancellation, there is a difference in that an operator is responsible for denied boarding and cancellation (unless for reasons beyond its responsibility) but not always for delays ...

32. It is not all that easy to discern the logic behind the distinction that the Commission was there drawing ...


35. In the course of the legislative process, however, there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it is difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.


38. The Regulation has the considerable merit of granting automatic compensation to passengers whose flights have been cancelled. However, as the Polish Government notes in its written observations, the distinction the Regulation introduces between cancellation and delay may lead to passengers who find themselves in objectively similar situations being treated differently.


47. In the IATA and ELFAA judgment, the Court stated unequivocally that the objective of Articles 5 (cancellation) and 6 (delay) of the Regulation is apparent from the first and second recitals in the preamble, according to which action by the Community in the field of air transport should aim, inter alia, at ensuring a high level of protection for passengers and should take account of the requirements of consumer protection in general, inasmuch as cancellation of, or long delay to, flights causes serious inconvenience to passengers.


51. However, regardless of the seriousness of the inconvenience caused, the Regulation provides that the cancellation of a flight automatically triggers a right to compensation (under Article 7) while a delay never does. As the order for reference in Sturgeon suggests and as the Commission indicated at the hearing, the Regulation therefore appears to be based on the assumption that a cancellation necessarily causes more inconvenience to passengers, and hence merits a stronger form of protection, than a ‘mere’ delay.

52. It is wholly unclear to me why this should be so ...


60. It seems to me that the underlying logic (again, against the background of enhanced consumer protection) must have been that, where the operator is not responsible for the inconvenience (whether caused by cancellation or long delay), he should not have to pay compensation; and that, conversely, where he is responsible, he should pay. Put another way, the criterion for compensation is not causation, but fault (broadly defined) on the part of the operator.

61. If that is right, it still does not explain why passengers suffering the inconvenience of a cancellation and passengers suffering the inconvenience of a long delay are treated differently. ...

62. The difference in treatment therefore appears to fall foul of the principle of equal treatment.


68. Factors that have been cited before the Court and in national case-law and legal writing as providing possible indications that a flight has been cancelled include: change of air carrier, change of aircraft, change of flight number, change of airport of departure or arrival, giving baggage back to passengers, new check-in for passengers, new seating assignment, allocation of all passengers to one or more other aircrafts, issuing new boarding passes, and the fact that the flight is described as ‘cancelled’ by the pilot (or other air carrier staff) or on the departures board.

69. Common sense suggests that all of these factors could be indications that a flight has been cancelled rather than merely delayed. The more factors that are present together, the more likely it becomes that there has indeed been a cancellation. By the same token, I do not think that any individual factor can be conclusive.


72. The Commission, supported at the hearing by counsel for Mr Böck and Ms Lepuschitz, for Condor, and for the Greek Government, suggests in its written observations that a change of flight number is a strong indication that a flight has been cancelled. I agree.


75. Since none of the factors cited can be conclusive on its own, national courts must assess the importance of each of them, when they are present in combination, in each individual case. That may lead to significant problems with legal certainty.


81. As a matter of common sense, time is obviously a factor in identifying whether a flight has been cancelled. If a number of the factors listed above are present in combination and/or the flight has been delayed for an inordinate period of time, that is a very strong indication that the flight has in fact been cancelled.


83. ... However, there are two difficulties with this approach. First, what is meant by ‘inordinate delay’? Second, is it permissible to interpret the Regulation in a way that classifies inordinate delay as de facto cancellation?


87. It seems to me impossible to identify, with any acceptable degree of precision, exactly what period of time must elapse before a delay become ‘inordinate’.

88. It would therefore be a matter for the national court, in each individual case, to evaluate the facts and reach a view – based on some mixture of national legal tradition, good sense and instinct rather than any precise Community legal norm – as to whether the delay in that instance had been ‘inordinate’ and should therefore be regarded as a de facto cancellation. ...


96. It seems to me that, in seeking to avoid Scylla (obvious discrimination against passengers whose flights are inordinately delayed when compared to passengers who obtain automatic compensation for their cancelled flight), one is immediately swept into Charybdis (legal uncertainty). ...

European Court of Justice: Advocate General Sharpston suggests reopen oral procedure on whether Articles of Regulation 261/2004 (EC) are invalid

In Cases C-402/07 -Sturgeon and C-432/07 - Böck both related to the destinction of cancellation and (extra) long delay according to Reg. 261/2004, Advocate General Sharpston in her opinion delivered this morning pointed out that in the course of the legislative process, regardless the importance there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it was difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.

She suggested that

  • Before ruling on the questions posed by the Bundesgerichtshof and the first and second questions posed by the Handelsgericht Wien, the Court should reopen the oral procedure pursuant to Article 61 of the Rules of Procedure and invite submissions from the Member States, the Commission, the European Parliament, and the Council on whether Articles 5 and 7 and Article 6 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, inasmuch as they draw a distinction between cancellation and delay (irrespective of length), are invalid in the light of the principle of equal treatment.
In regard to the excuse of extraordinary circumstances and technical problems she re-affirmed:

  • Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

Full text of opinion available here>>.

European Union: Regulation on travelling with pets

On 16 June the European Commission adopted a proposal according to which transitional animal health requirements applicable to the movement of pet animals travelling with their owners to Finland, Ireland, Malta, Sweden and the United Kingdom are to be extended until 31 December 2011. The proposal will be discussed by the European Parliament and the Council, with a view to formal adoption through the co-decision procedure.

In accordance with the current rules laid down in Regulation (EC) 998/2003 (known as the "Pet Regulation"), pet dogs, cats and ferrets travelling with their owner for non-commercial movements to another Member State must be accompanied by a passport or, when imported from a third country, by a certificate providing proof of a valid anti-rabies vaccination.

The Regulation also grants a transitional period expiring 30 June 2010 to Finland, Ireland, Malta, Sweden and the United Kingdom to make the entry of pet animals into their territory subject to compliance with certain additional requirements in relation with rabies, the tapeworm Echinococcus multilocularis or ticks (the "transitional regime").

The Commission considers that the conditions for moving to a fully harmonised set of rules throughout the EU that would avoid unnecessary burden for travellers are almost entirely fulfilled.

Source: European Commission, DG Health and Consumers, Health & Consumer Voice July 2009 Edition

More information at:

UK: chaos to be expected from new electronic passport checks?

The e-borders programme, which is due to be fully in force by 2014, is aimed at tackling terrorism, crime and illegal immigration and allows passenger details to be checked against watch lists. However, travel operators from the rail, shipping and travel industries told MPs that the Home Office had not consulted them properly and warned that the system could lead to unacceptable delays: Travellers could face chaos during this year's school holidays if airlines are forced to implement new electronic passport checks.

The government said the e-borders scheme was already a proven success.

But travel operators warned it could breach EU laws on data collection. And they said the flagship £750m programme to collect electronic records of everyone who enters and leaves the UK will also miss Home Office deadlines.

Source: BBCNews; find article here>>.

European Uniton: Commission alerts consumers to the importance of sun protection

At the start of the holiday season, the European Commission alerts consumers to the importance of adequate protection from the sun this summer and reminds them to look out for the clearer labelling regime on sunscreen bottles. The new labels - including a new UV-A logo or seal on bottles and a ban on misleading terms such as "sun blocker" or "total protection" - are a response to a Commission recommendation on sunscreen products adopted in September 2006. The Commission is also seeking to remind consumers that there are several reasons why sunscreen products should be only one out of a number of measures which are necessary to protect from the UV radiation of the sun.

Source: European Commission press release; find full text here>>.