Germany: reference for preliminary ruling of the ECJ with regard to Reg. 261/2004

A German court (Amtsgericht Köln) has recently filed a reference for preliminary ruling with regard to the follwoing question:

Does Article 4(3) 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 ( 1 ) apply to a passenger with a confirmed reservation for an outward and a return flight who does not present herself for boarding for the return flight owing to the following circumstances:

• The operating air carrier denied the passenger, who had presented herself punctually for boarding for the outward flight, boarding against her will and announced its intention of denying her boarding on the return flight.

• Boarding was denied because of the operating air carrier’s mistaken assumption that, because of a chargeback, it was entitled to a processing fee, which the passenger had not yet paid?

Case C-226/10 - Hannelore Adams v. Germanwings GmbH

Source: Official Journal of the European Union C 209/15

USA: summary judgement for airline in overbooking case upheld

Andrew P. Kalick purchased tickets for a North West Airlines flight from Kansas City to Philadelphia and was denied boarding as the flight was full. An NWA agent advised Kalick that she had instead booked him on an American Airlines flight to Philadelphia with a layover in Dallas. For reasons that are unclear from the record, Kalick missed his connecting flight and had to stay in the Dallas airport overnight and arrived in Philadelphia one day later.

Kalick filed a suit in the District Court alleging that NWA violated Department of Transportation regulations concerning compensation of passengers bumped from oversold flights. In addition, Kalick asserted state common law claims for breach of contract and fraud. He requested compensatory and punitive damages totaling $163,000.

The District Court entered an order concluding that the DOT regulations do not create a private right of action. Determining that any punitive damages claims based on Kalick’s state claims were pre-empted and, therefore, that Kalick could not meet the $75,000 amount in controversy requirement for diversity jurisdiction, the District Court declined to exercise supplemental jurisdiction over Kalick’s remaining state law claims. As a result, the District Court dismissed the case for lack of jurisdiction without prejudice to Kalick’s right to litigate the contract and fraud claims in state court.

Upon appeal by Kalick, the Third Circuit Court upheld the trial court’s order. First, the appeals court held that federal question jurisdiction was lacking because Section 250.9 does not create a private right of action, noting that every other circuit addressing this issue had ruled in the same manner. Next, the appeals court agreed that diversity jurisdiction was also lacking because the plaintiff had failed to show, by a preponderance of the evidence, that he could recover an amount exceeding $75,000 on his contract and fraud claims. Finally, the appeals court upheld the trial court’s refusal to exercise supplemental jurisdiction over the plaintiff’s state law claims, holding that the plaintiff had failed to prove the “exceptional circumstances” necessary for the exercise of such jurisdiction.

Case Kalick v. Northwest Airlines Corp. (3d Cir. (N.J.) No. 09-3608, Mar. 29, 2010)
Full opinion available here>>.

USA: DOT Proposes Additional Consumer Protections for Air Travelers

U.S. Transportation Secretary Ray LaHood today proposed new consumer protections for air travelers, building on the Department of Transportation’s recent rule banning carriers from subjecting passengers to long tarmac delays and other deceptive practices.

Specifically, the new proposed rule would:

• increase compensation for passengers involuntarily bumped from flights
• allow passengers to make and cancel reservations within 24 hours without penalty
• require full and prominently displayed disclosure of baggage fees as well as refunds and expense reimbursement when bags are not delivered on time
• require fair price advertising
• prohibit price increases after a ticket is purchased
• mandate timely notice of flight status changes
  

Comments on the proposal are due in 60 days. The text of the proposed rule and comments are available on the Internet at www.regulations.gov, docket DOT-OST-2010-0140.

Source: DOT press release of June 2, 2010; find full text here>>.

Evaluation of Regulation 261/2004/EC

The final report (110 pages) as of February 2010 made by Steer Davies Gleave / London for the European Commission DG Transport can be found and downloaded here:

Report

Germany: another Supreme Court decision on a missed connecting flight

Following its decision of April 30, 2009, German Supreme Court(BGH) in a recent decision of May 28, 2009 (Xa ZR 113/08) confirmed that the miss of a connecting flight due to a delay of the feeding flight does not constitute "denied boarding" under Reg. 261/2004.

Furthermore there was no claim for price reduction based on the delay as a delayed fligth could not be regarded "defective". Plaintiffs therefore could only have sued for compensation of damages caused by the delay, which they, however, had not claimed for.

BGH therefore upheld the dismissal of the claim by the lower courts.

Source: BGH press relase of 28.05.2008; find full text in German here>>.

German Supreme Court: No Compensation under Reg. 216/2004 if Connecting Flight is Missed due to Delay of Feeder

In a judgment of April 30, 2009 (Xa ZR 78/08), German Supreme Court (BGH) held that the miss of a connecting flight due to a delay of the feeder (both flights operated by the same airline and jointly booked as parts of one and the same contract for carriage) would not constitute "denied boarding" under Reg. 261/2004.

BGH reasoned that a right to compensation would require the passenger to

• prove confirmed booking
  
• have appeared at check-in in time and
• a refusal of carriage against the passenger's will despite him being present at the gate.

These requirements were not fulfilled if the passenger due to the delay of the feeder did not present himself for check-in and/or boarding in time.

Despite of the different view of some other German courts (LG Berlin, RRa 2008, 42; OLG Hamburg, 6 U 94/07; LG Leipzig 6 S 319/08), BGH regarded the issue as "non-ambiguous" and therefore saw no reason to make a reference fo preliminary ruling of the European Court of Justice.

Source: press release 93/2009 by BGH; available in German here>>.

corr: ECJ-Judgment re cabin baggage

Case C‑345/06 (Gottfried Heinrich), Judgment as of 10. March 2009

Preliminary ruling in the course of an action brought by Mr Heinrich against the Austrian authorities after they had refused him access on board an aeroplane on the ground that he was carrying tennis racquets in his cabin baggage, those objects being regarded by those authorities as articles prohibited by an unpublished (!) annex to a civil aviation security regulation 2320/2002/EC:

The annex to Commission Regulation (EC) No 622/2003 of 4 April 2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Commission Regulation (EC) No 68/2004 of 15 January 2004, which was not published in the Official Journal of the European Union, has no binding force in so far as it seeks to impose obligations on individuals.

Germany: one more reference for preliminary ruling in regard to Reg. 261/2004

German Supreme Court (BGH) once again instituted proceedings on the interpretation of Reg. 261/2004 on air passenger rights. In the case concerend a flight from/to Berlin was part of a package tour to Turkey. During the trip the tour organizer changed the booking for the return flight and rerouted passengers to another flight of the same carrier, not going to Berlin but to Leipzig (from where a bus transfer to Berlin was provided). The originally booked flight to Berlin was duly operated by the carrier.
Passengers sued the operating carrier for compensation because of denied boarding under Reg. 261/2004. First instance court (Amtsgericht Rüsselsheim) granted the claim, court of appeal (LG Darmstadt) dismissed it. Upon further appeal of the passengers, BGH posed the following questions to the ECJ:

• Can a rebooking to another flight be regarded "denied boarding" under Art. 4 par. 3 of the Reulation,
• if answered yes, shall this also apply if the rebooking solely was based on a decision of a tour organizer, not one of the carrier.
  

Source: BGH press release 168/08; German text available here>>.

USA: ASTA Files Comments on Oversales and Denied Boarding Compensation

The American Society of Travel Agents (ASTA) filed comments yesterday with the Department of Transportation (DOT) on the issue of Oversales and Denied Boarding Compensation. ASTA provided the DOT with numerous recommendations for updating the more than 20-year old rules that currently govern the process of Denied Boarding Compensation practices.

In its comments, ASTA:

• Stated that it is in favor of doubling the ceiling on compensation for involuntarily bumped passengers.

• Suggested that ceiling caps should be adjusted automatically every five years and based on the Consumer Price Index (CPI).

• Objected to the DOT permitting airlines to establish, without any control, preference as to who will be involuntarily bumped when they are unable to secure volunteers. The DOT currently allows airlines to decide who will be involuntarily bumped based on the price of a passenger's ticket.

• Argued that anyone with a confirmed seat assignment should never be bumped. ASTA also suggested that if an airline reserves the right to bump passengers based on the price of their ticket, the airline should warn the passenger of this risk at the time of purchase.

• Argued that compensation practices for international and domestic travel should be treated identically and based on a combination of length of delay and distance.

• ASTA recommended that the rules abolish the use of vouchers in favor of cash payments, stating that only cash payments will create a full incentive for airlines to closely manage Denied Boarding Compensation.

Read the full press release here.

Preliminary Ruling Procedure instituted on EU Regulation 261/2004

By decision of 7th March 2007 Court of Appeal in Frankfurt (Oberlandesgericht Frankfurt) has moved for Preliminary Ruling of the European Court of Justice in regard to Regulation (EC) 261/2004 (often but not quite correctly referred to as "Denied Boarding Regulation").
The request for Preliminary Ruling is amiming for clarification in regard to the scope of application of the Regulation as provided in Art. 3 Par. 1 lit. a, whereas the regulation shall apply "to passengers departing from an airport located in the territory of a Member State to which the Treaty applies ". There was doubt (and various decisions by different German courts) whether the regulation also applies to the return flight from a non EU airport if passenger booked a round-trip ticket with the first segment starting from the EU.
The majority of German travel lawyers are sharing the view that the return flight is coverd by the regulation as a round trip has to be seen as a unitary contract for carriage.

Source: Newsletter of the German Travel Laywers' Association (Deutsche Gesellschaft für Reiserecht). German Text of the request for Preliminary Ruling can be read here.

Compensation and assistance to air passengers

Article 16 of EC Regulation 261/2004 on confers increased protections on most air passengers flying into or out of Community airports for delay caused by denied boarding, cancellation or long delay. Article 16 requires member states to ‘designate a body responsible for the enforcement of this Regulation … Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected.’ Given that the consumer rights are intended to deal with the immediate effects of flight delays, Article 16 might be understood as meaning that certainly in larger airports the ‘enforcer’ should actually be located in the airport so as to be able to receive, respond and intervene on behalf of air passengers with airlines.
However, the Irish government has not taken this view and has designated a state aviation body (the Commission for Aviation Regulation, rather than the consumer protection body) whose offices are based in downtown Dublin, as the enforcer. The public has been informed of this by the same newspaper and website notice http://www.aviationreg.ie/rights/notices.htm which says passengers may complain in writing or electronically to the city centre address. Fax will also be accepted.
Does the failure to locate the enforcer at a busy airport like Dublin amount to a failure to implement Article 16?

(Originally posted by Marc Mc Donald)

Regulation on Compensation and Assistance for Air Passengers is valid

The International Air Transport Association (IATA)and the European Low Fares Airline Association (ELFAA), which represents the interests of 10 low-fare airlines from nine European countries, contested the United Kingdom’s implementation of the regulation before the High Court of Justice of England and Wales. They raised before the High Court questions concerning the validity of the regulation, in particular of the provisions relating to cancellations, delay and compensation. The High Court referred those questions to the Court of Justice of the European Communities. With regard to the compatibility of the regulation with the Montreal Convention, the Court of Justice established that this international Convention, which regulates, amongst other things, the liability of air carriers in the event of delay, binds the Community. The Court held that the assistance and ‘care’ for passengers prescribed by the Community regulation in the event of a long delay to a flight constituted standardised and immediate compensatory measures. They were not among the measures whose institution is regulated by the Convention and cannot therefore be considered inconsistent with the Montreal Convention. With regard to compliance with the obligation to state reasons and observance of the principle of legal certainty, the Court stated that the provisions of the regulation that are at issue lay down precisely and clearly the obligations owed by air carriers, clearly disclose the essential objective pursued and are unambiguous. With regard to observance of the principle of proportionality, the Court held that the compensation which passengers may claim when they have been informed of a flight cancellation too late did not appear manifestly inappropriate to the objective pursued, given the existence of a ground for exemption upon which carriers may rely and of the conditions restricting the application of this obligation on carriers. With regard to observance of the principle of equal treatment, the Court held that the situation of undertakings operating in each of the different transport sectors was not comparable. Passengers whose flights are cancelled or subject to a long delay were in an objectively different situation from that of passengers on other means of transport in the event of incidents of the same nature. The Court concluded, therefore, that its examination had revealed no factor of such a kind as to affect the validity of the provisions of the regulation that are at issue. (PRESS RELEASE No 1/06 of the ECJ; see http://curia.eu.int/en/actu/communiques/cp06/aff/cp060001en.pdf)

(Originally posted by Michael Wukoschitz)