Friday, January 29, 2010

German BGH: Airline bonus points

Germany Highest Court (BGH) ruled yesterday about the forfeiture of Airline bonus points (BGH 28.01.2010, Xa ZR 37/09):

Plaintiff was a participant of the flight awards program of the defendant airline. Under this program, travelers were able to collect a number of bonus points dependent on the route booked that could be redeemed within five years after the flight for bonus tickets. In the conditions of the program (CoP), the defendant retained the right to terminate the program at any time. In September 2007 defendant announced the ending of the rewards program by 31 October 2007 and admitted to the participants the option to transfer the points collected to another airline’s program. At the same time defendant terminated plaintiff’s participation contract and informed the plaintiff that he may book flights on the bases of the current CoP until 30 April 2008 only and which shall take place until 31 October 2008.

Plaintiff considered that defendant’s CoP shall be null and void in this regard and he claimed that he could still redeem the bonus points within five years after the flight date.

Both, the district court and the court of appeal dismissed the action and considered the CoP of the defendant still to be in force and binding.

The BGH did not follow this point of view. Defendant may terminate the flight rewards program at any time, however, in the case at hand the CoP providing a right to decrease the period of the initial validity of the bonus points of up to one tenth can not be justified.

This may cause difficulties for the defendant when booking appropriate bonus flights only six months in advance. Bonus points are a not a voluntary service provided by the defendant, since the bonus points are a kind of discount agreed which is applicable for future flights. The defendant is obliged to grant bonus points for flights that have taken place after termination the program, unless they have been booked prior to its termination on the basis of the CoP.

The offered transfer to another airline’s awards program is not an alternative, because it is not equivalent in every respect.

Friday, January 15, 2010

USA: DOT Unveils Improved Aviation Consumer and Enforcement Website

Air travelers will find it easier to file complaints with the U.S. Department of Transportation (DOT) about airline service, compare the historical on-time and baggage mishandling records of airlines, and find helpful tips about air travel thanks to a redesigned, more user-friendly aviation consumer web site unveiled today by the Department. The web site can be found at .

The improved site contains useful information about the Department’s complaint handling system for consumers who experience air travel service problems, including a web form that consumers can use to file a complaint with DOT about airline service. The site also offers guidance regarding aviation rules and statutes, advice concerning airlines that have stopped operating or filed for bankruptcy protection, and travel tips and publications related to air travel, such as the Air Travel Consumer Report, Fly-Rights and the annual report on disability-related air travel complaints.

Source: DOT press release of Jan. 14, 2010; find full text here>>.

USA: Airbus sued over Sudan Airways crash?

Reportedly several families of victims of the Sudan Airways crash, while landing in the Sudanese capital a year ago, have filed a law suit in the Circuit Court of Cook County, Illinois. The flight which originated in Amman, passed through Damascus, and landed in Khartoum. Twenty-nine passengers and crew died in the accident.

Source: eTurboNews; find article here>>.

UNWTO: Statement on Haiti

The UNWTO is deeply saddened by the losses of lives and devastation caused by the earthquake that struck Haiti and expresses its support to its people and sincere condolences to those who lost their loved ones. The severity of yet another natural disaster poses a new challenge for the international community and the UN World Tourism Organization wishes to show its solidarity with the people and the Government of Haiti.

UNWTO stands ready to lend its support during this difficult time by collaborating in the assessment of the damages caused, especially in the tourism sector, and contributing to a recovery plan in the conviction that tourism can become a useful instrument for the necessary reconstruction process.

Source: UNWTO press release of Jan. 14, 2010, find full text here>>.

Tuesday, January 12, 2010

Canada: visa-free privilege to be withdrawn from Hungarian tourists?

The federal government of Canada is considering withdrawing from Hungarian tourists the privilege to enter Canada without a temporary resident visa. The plan to require visas from Hungarian tourists follows a similar move made by Ottawa a few months ago to impose visa requirements on tourists from Mexico and the Czech Republic. The stringent measure was made to curb abuse of Canada's asylum system.

Source: eTurboNews; find article here>>.

Finland: New logo for package travel

The Finnish Consumer Agency will launch a logo to be used on package travel documents and advertisements. The logo was designed closely with the travel industry in Finland and we hope it will be used on most of the package travels sold in Finland starting from this year. The logo should make it easier for traveler to know which packages are sold as package travels and which are not.

The logo will be revealed at the Travel fare 2010 which will start on the 21st of January. With the logo the Consumer Agency will also promote the new tour organizer registry which you will find at (=package travel). The site will also open on the 21st. Trade mark registration is pending for the logo.

Reported to IFTTA by Petteri Lehtonen

Friday, January 08, 2010

Lockerbie Part 1

Dear Friends

At the IFTTA congress in Brazil I promised to update members on the Lockerbie legal issues in Scotland. Below, I have summarised the political and constitutional background to the case and in the next few days I will provide the latest update and a clarification on some matters.

Please be patient with me while I explain a little of the constitutional and political background. There was confusion in some of the foreign press about the role of the Scottish Government, UK Government, Scottish courts etc. Some thought that the Scottish Government had done some kind of deal with Libya: it was the UK Government. Some criticised the UK Prime Minister re the decision to repatriate al-Megrahi: it was a decision for the Scottish Government etc.

It is important to understand at the outset the constitutional framework. In 1603, the Scottish King James VI inherited the English throne, following the death of Elizabeth I of England. He thereby became James I of the United Kingdom. Scotland and England remained separate countries but with the same monarch, in the same way that the UK and Canada share the same monarch today. On 1 May 1707, the Scottish and English Parliaments were abolished and replaced by a British Parliament. This was created under the Treaty of Union between the two countries. The provisions of the Treaty, amongst other things, guaranteed the independence of the separate Scottish legal system, including its courts. Hence there is no appeal from Scotland to the House of Lords in Criminal matters. The Scottish Court of Criminal Appeal is the highest court. Furthermore, Scots Law is very distinctive from that of England. The terminology (e.g. homicide not murder, fire raising not arson), juries (15 not 12) and procedures are all different.

In 1999, the new Scottish Parliament was established, with control over most domestic matters, including justice. Matters such as trade, taxation, defence and foreign affairs are dealt with by the UK Parliament, to which Scotland also elects members. Indeed, the current Prime Minister, Gordon Brown represents a Scottish constituency.

The Labour Party forms the UK Government. In 1999, the Labour Party was also in power as the Scottish Government. In 2003 they formed a coalition in Scotland with the Scottish Liberal Democrats. However, in 2007 the Scottish National Party formed the Scottish Government. The SNP is a social democratic party. It wants an independent Scotland within the EU. As it poses a direct challenge to Labour in areas where Labour were traditionally popular, there is great deal of animosity between the two parties. The SNP, supported by the Scottish Green Party, plan to put a referendum for total independence to the Scottish people in 2012. The Labour, Liberal Democrats and Conservatives totally oppose this, though the Liberal Democrats are wavering.

Lockerbie - Part 3

The Scottish Government has issued an order under the Criminal Procedure Act 1995 that will allow the Scottish Criminal Cases Review Commission (SCCRC) to release some of the details of the review of the al-Megrahi case. The SCCRC cannot reveal all of the details as the law requires the consent of all the parties involved.

Following on from my explanation re the constitutional and political context; the Scottish Affairs Committee of the Westminster Parliament has invited the Scottish First Minister (Head of the Scottish Government), Alex Salmond, the Permanent Secretary to the Scottish Government, Sir John Elvidge, and the Scottish Justice Secretary, Kenny MacAskill, to give evidence on the state of cooperation between the Scottish Government and the UK Government. The hearing will take place on 11 January. Inevitably, Lockerbie will be a particular focus.

Meanwhile, a BBC investigation has cast doubt on a key piece of evidence used to convict al-Megrahi. The programme conducted tests to replicate the explosion. The result was that the tiny fragment identified as part of the bomb timer, and which was used to link al-Megrahi to the attack, could not have survived the mid-air explosion. It casts doubt on the forensics used to identify the fragment as part of the circuit board. This fragment had been found three weeks after the bombing. This was nonetheless ignored for months before being used by the prosecution as a central plank in the case against al-Megrahi. It was embedded in a piece of clothing, labelled "made in Malta". This piece of evidence led to an investigation as to who had purchased the clothing. Years later, a Maltese shopkeeper identified the purchaser as al-Megrahi. However, this was after he had seen him pictured in a magazine as a suspect in the case.

Al-Megrahi has placed hundreds of documents on a website stating, "I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence". The Scottish Lord Advocate, Elish Angiolini, has condemned this saying that it is a selective view of the evidence and that a court is the only place to determine al-Megrahi's guilt or innocence. His defence lawyers say that this is the only way of continuing to protest his innocence given that he had to abandon his appeal in order to be considered for compassionate release.

There have been calls for the UN to establish an inquiry into the Lockerbie case. This is supported by Hans Koechler, the UN observer at the original trial. It is also supported by Professor Robert Black, Emeritus Professor of Law at Edinburgh University. Professor Black was born in Lockerbie and attended Lockerbie Academy. Needless to say, he took a keen interest in the case. As holder of the Chair in Scots Law at Edinburgh University. Professor Black has been described as the architect of the legal framework enabling the case to take place in the Netherlands under Scots Law but without the usual jury of 15 persons.

Professor Black has expressed disbelief that the three judges convicted al-Megrahi on the evidence before them. In an interview with The Scotsman on 1 November 2005 Professor Black said Megrahi's conviction was "the most disgraceful miscarriage of justice in Scotland for 100 years." In addition to the failure to disclose the secret document, referred to in my previous account, questions about the forensics and the way evidence was handled, there are major concerms about the Maltese shopkeeper witness.

Professor Black regrets having proposed the special procedure that provided for a non-jury trial at Camp Zeist. He has stated: "If they had been tried by an ordinary Scottish jury of 15, who were given standard instructions about how they must approach the evidence, standard instructions about reasonable doubt and what must happen if there is a reasonable doubt about the evidence, no Scottish jury could have convicted Megrahi on the evidence led at the trial."

Lockerbie: Part 2 - Timeline

Pan Am Flight 103 was blown up 31000 feet above the Scottish border town of Lockerbie on 21 December 1988. There were 259 people on board, including the crew, all of whom were killed together with 11 people on the ground.

Two Libyans were indicted on 13 November 1991: Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhimah. The case was discussed by Lord Fraser, the Lord Advocate of Scotland at the time, at the IFTTA worldwide congress in Edinburgh that year.

On 19 March 1999, Nelson Mandela flew to Tripoli to persuade Colonel Qaddafi to hand over the suspects to be tried by the High Court of Justiciary, a Scottish court, sitting in Camp Zeist in the Netherlands. The trial opened on 3 May 2000 and on 31 January 2001, al-Megrahi was found guilty of homicide and was sentenced to a minimum of 20 years imprisonment. His co-accused was acquitted and returned home. The Scottish Court of Criminal Appeal, comprising 5 judges, rejected his appeal on 14 March 2002.

Lawyers acting for the victims secured an agreement from the Libyan authorities to set up a compensation fund of $2.7bn on 14 August 2003.

On 23 September 2003, al-Megrahi launched a further appeal with the Scottish Criminal Cases Review Commission (SCCRC). This is an independent body responsible for investigating possible miscarriages of justice. Meanwhile, a change in legislation, arising from the implications of the Human Rights Act, required that prisoners are entitled to know the actual tariff of their sentence rather than "a minimum of...". In al-Megrahi's case, this was then fixed at 27 years. The Lord Advocate appealed on grounds that this was too lenient. Al-Megrahi counter-claimed. However, these appeals were put on hold to await the outcome of the SCCRC's findings.

Meanwhile, the UK Government struck a deal with the Libyan Government on prisoner exchanges on 7 June 2008. It insisted that this would not cover al-Megrahi.

On 28 June 2008, the SCCRC recommended that al-Megrahi be granted a new appeal against his conviction. The grounds of referral they gave for appeal was on the basis of:
the reasonableness of the trial court's verdict. In particular, there were serious questions in relation to evidence from a vital Maltese witness.
new evidence that had not been heard at the original trial.
additional evidence not made available to the defence.
other evidence not made available to the defence. Again this mainly related to the Maltese witness.

Al-Megrahi's lawyers asked the Scottish Court of Criminal Appeal to examine claims that vital secret documents had been withheld from his defence team. A key document had been issued by a foreign government to the Scottish prosecutors before al-Megrahi's trial but had not been made available to the defence. The UK Government, through its Advocate General, argued that disclosure of the document would harm the UK's security interests and its international relations. The appeal court accepted that it should not be disclosed on 7 March 2008. His lawyers planned to further appeal on the matter.

On 21 October 2008, his defence lawyers revealed that al-Megrahi had an advanced state of prostate cancer and on 30 October made an appeal for bail pending his appeal. This was rejected by the court on 14 November 2008.

In his second appeal, his counsel claimed that the evidence against him was "wholly circumstantial". The appeal was expected to last into 2010, partly prolonged by the limited amount of time each day that al-Megrahi could follow the proceedings due to his cancer.

In May, the Libyan authorities requested that the Scottish Government release him pending the outcome of his appeal. however, under Scots Law, no release was possible in the case of a person convicted of a crime if judicial proceedings were still active. Thus, al-Megrahi was required to abandon his appeal before consideration for release on compassionate grounds.

On 20 August 2009, al-Megrahi was released by the Scottish Justice Minister, Kenny MacAskill, on compassionate grounds i.e. that of his impending death from prostate cancer.

"Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days," he said. "But that alone is not a reason for us to deny compassion to him and his family in his final days….Our justice system demands that judgement be imposed, but compassion be available. For these reasons and these reasons alone, it is my decision that Mr Mr Abdelbaset Ali Mohmed Al-Megrahi, convicted in 2001 for the Lockerbie bombing, now terminally ill with prostate cancer, be released on compassionate grounds and be allowed to return to Libya to die."


Austria: reference for preliminray ruling in regard to the operation of a city tours coach service

The applicant company applied for a business permit to run a city tours coach service from fixed stopping points in accordance with a fixed time table. Municipality of Vienna at first instance denied the permit on the grounds that the service would economically endanger a competing company running a similar service and applicant had no registered office in Austria.

Upon appeal of the applicant, the "Unabhängiger Verwaltungssenat Wien" filed a reference for premliminary ruling to the ECJ, asking

1) whether it was compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport, where fixed stopping points are called at regularly in accordance with a timetable, to lay down the following as conditions for such authorisation:
  • that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority before commencing operation of the service and in particular at the time the licence is granted;
  • that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority at the latest from the time operation of the service commences?
2) whether it was compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport where fixed stops are called at regularly in accordance with a timetable, to provide that authorisation is to be refused where, if the motor vehicle service applied for commences, the revenues of a competing undertaking running on a partially or entirely identical short route will be so substantially reduced by this service that the continued running of the service operated by the competing undertaking will no longer be economically viable?

Given ECJ's established jurisdiction, I wonder how there can be doubt that the requirement of a registred office in Austria infringes freedom of services.

The refrence for preliminary ruling (case C-338/09 - Yellow Cab) is available for download here>>.

Thursday, January 07, 2010

Update on the collapse of Scottish Airline, flyGlobespan

flyGlobespan was Scotland’s biggest airline, based in Edinburgh. It employed about 800 staff and carried more than 1.5 million passengers a year on 12000 flights. On its’ collapse, arrangements were made for the repatriation of 1100 passengers stranded abroad. These were passengers that had a flight with flyGlobespan as part of a package travel arrangement and were therefore protected on the airline’s insolvency. There were a further 3400 passengers abroad that were not protected as they had booked directly with the airline on a flight only basis. An additional 27000 consumers that had booked flights as part of a package to take place in the future were also protected but 90000 who had paid for future flight-only arrangements were not. However, many of these latter were protected under the Consumer Credit Act if they paid for their flights using a credit card. This protection does not apply to those who paid with a bank debit card unless the terms and conditions issued by the bank provided otherwise. Likewise, some charge cards, such as American Express, provide protection in certain circumstances.

The problem is that some members of the public do not understand the difference, in this context, between a credit card, debit card and a charge card, nor why package travellers are protected and flight-only consumers are not.

Many airlines use a different company to handle their credit card bookings and this was the case with flyGlobespan, which used E-Clear. These companies need to insure against claims being made on the default of an airline and this became increasingly expensive during 2008- 9. In order to reduce their risk and, hence, insurance premiums, some tended to withhold payments to the airlines until the flights had already taken place. This was so in the case of E-Clear.

The Finance Secretary of the Scottish Government, John Swinney, stated that flyGlobespan was badly let down by the fact that E-Clear, handling bookings on their behalf, had not paid them money that they were due: “That is the inescapable commercial reality of what has been faced here." Mr Swinney added: "The key issue is about making sure that, in the private market, companies honour their commitments…Here E-Clear have held on to money that should have been passed on the flyGlobespan and as a consequence employees of flyGlobespan and members of the travelling public are now experiencing real difficulties”.

The insurance issue might explain why E-Clear was holding on to flyGlobespan's funds (£14 million) received for flights yet to take place but it doesn't explain why it was withholding as much as £20m for tickets that had been used - transactions which no longer carried any risk.

The Scottish administrators of flyGlobespan have raised a legal action against E-Clear on Monday. It is also understood that the Slovakian airline, SkyEurope has also raised a claim for £13m for funds withheld by E-Clear when it went into liquidation in 2008. Go Travel Direct, based in Canada, has likewise started a claim for £300,000 it says that E-Clear owes them.

Brazil: One of every ten flights delayed over 30 minutes in 2009

Approximately one out of ten flights that took off from airports in Brazil in 2009 was delayed over 30 minutes (limit considered acceptable by the Brazilian Airport Infrastructure - Infraero). Despite the still high average of 11%, the National Civil Aviation Agency (ANAC) said the airline industry in the country increased its efficiency, whereas in 2008 the percentage was 17.5% and in 2007, 28.6 %.

Moreover, according to ANAC projection based on data from Infraero by the end of November, more than 126 million departures and landings must have been made in 2009, a number well above the 113.3 million recorded in 2008 and 110 6 million in 2007. Only until the beginning of December last year had already been made 115 million arrivals and departures.

According to the director president of ANAC, Solange Vieira, increased efficiency is due to several actions taken during the year. "Increased competition, since the largest number of companies and airports available, led to an improvement in service. The Aeroporto Santos Dumont (RJ) had a significant effect on this process, including releasing the Galleon for new flights. Moreover, ANAC taken steps to distribute the flights outside of peak hours and tailor the operational capacity of Guarulhos (SP), "he said in a statement.

According to ANAC, passengers better informed about their rights and obligations also contributed to the normal at airports. Among the largest airlines operating in the country, the monthly average of flights delayed more than 30 minutes in 2009 was: Webjet (13.1%), Gol / Varig (10.1%), TAM (10%), Ocean Air (8.3%) and Blue (8.1%).

Danilo M

Agency Brazil


Forwarded to IFTTA by Ronaldo Armond

Wednesday, January 06, 2010

Kenya: New regulatory regime for hospitality sector

To ensure quality and compliance with relevant other laws and regulations and promoting excellence in the hospitality sector, all new hotel, resort, and lodge projects in Kenya require to be licensed first, before commencing any construction, by a newly-inaugurated Hotel and Restaurant Authority.

The authority will also embark on a nationwide exercise of grading and classification, using the East African Community regulatory regime now in place for all the five member states.

Source: eTurboNews; find article here>>.

Tuesday, January 05, 2010

USA: Restriction on visas to HIV-positive tourists lifted

The Department of Health and Human Services and the Centers for Disease Control and Prevention removed HIV infection from the list of diseases that prevent non-U.S. citizens from entering the country. The new regulation removes required testing for HIV infection from the U.S. immigration medical screening process and eliminates the need for a waiver for entry into the United States.Visas issued under the new regulation will not publicly identify any traveler who is positive for HIV.

Source: eTurboNews; find article here>>.

Prohibited items lists EU+USA

You can find the list of prohibited items published by the TSA which applies to flights originating within the USA (3/2009):

The TSA also provides rules for liquids, the so called '3-1-1 for Carry-Ons':

Code word: "Hermeticism"

The well known rules regarding liquids as of 2006 can be found here:

Initial plans to set legal limits at European level to the size of carry-on cabin baggage in airplanes have been withdrawn; likewise plans of the Commission to an end of the ban of liquids.

Monday, January 04, 2010

USA: extra checkpoint screening of airline passengers from 14 countries

Due to a new directive of the Transportation Security Administration airline passengers flying to the U.S. from 14 countries with terrorism problems will face extra checkpoint screening at overseas airports. The countries include Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudia Arabia, Somalia and Yemen as well as Cuba, Iran, Sudan and Syria.

The new directive will be in place indefinitely and replaces an emergency order the TSA imposed after a Nigerian passenger tried to blow up a Northwest Airlines flight near Detroit on Dec. 25.

Source: USA Today; find article here>> and TSA statement here>>.

USA: another law suit filed by former YTB affiliates

A number of former affiliates filed a third version of their complaint against YTB in the U.S. District Court for Southern Illinois. The former YTB referring travel agents (RTAs) have charged they were induced to join an illegal pyramid scheme. They claim current and former affiliates have suffered damages of more than $100 million. In two cases brought previously they have not convinced Judge Patrick Murphy that the charges can be based on a consumer protection law because the case involves business-to-business dealings.

Source: Travel Weekly; find article here>>.

Also see previous postings of June 10, 2009 and May 19, 2009.

Belgium sued Switzerland before International Court of Justice

Belgium took Switzerland to the International Court of Justice in The Hague. The dispute concerning the interpretation and application of the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters has arisen out of the pursuit of parallel judicial proceedings in Belgium and Switzerland in respect of the civil and commercial dispute between the main shareholders in Sabena, the former Belgian airline now in bankruptcy.

Belgium claims that Swiss courts, including in particular the Federal Supreme Court, have refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention.

Source: ICJ press release 2009/36

UN Sanctions against Eritrea

In a 13-0-1 vote the UN Security Council opted for sanctions aganinst Eritrea until such time that the country "ceases arming, training, and equipping armed groups and their members including al-Shabab." Regime leaders and collaborating businesses are now also subject to travel bans, and a freeze of assets is reportedly underway for both individuals, as well as companies.

Source: eTurboNews; find article here>>.

New Commission, Hearings, etc

The full 'Timetable for the Hearings of the Commissioners designate', which will start on January 11th and last until 19th can be found here:

The new Commission 'Barroso II' and the respective responsibilities can be found here (in all official languages):

Further information about the hearings can be found here:

once again:

The Consumer Contract and Marketing Law SANCO B.2 moves to DG JLS from DG Health and Consumers (SANCO) as part of the Justice, Fundamental Rights and Citizenship portfolio

Nevertheless the new responsible commissioner Viviane Reding will not be heard by the IMCO but only by LIBE, JURI and FEMM committees

Information about the several committees, it's schedules and documents can be found here:

San Francisco: Sea Lions abandon Pier 39

San Francisco Bay’s famous herd of sea lions has mysteriously begun vanishing as quickly and inexplicably as they appeared, leaving behind throngs of disappointed tourists and puzzled marine biologists. Marine experts in the region speculate that the sea lions came in droves because of an abundance of food.

Source: eTurboNews; find article here>>.

European Union: Parliamentary hearing of Commissioner-Designate Dalli

The parliamentary hearing of the Commissioner-Designate for Health and Consumer Policy, John Dalli, is to take place on 14 January at 13.00hrs under the lead of the Committee on the Environment, Public Health and Food Safety, with MEPs from the Internal Market and Consumer Protection and Agriculture and Rural Development Committees also attending.

Source: European Health & Consumer Voice; find more information here>>.