New on IFTTA News

• USA: DHS report says X-ray scanners at airports are safe;
  
• ECJ Advocate General: air ticket pricing rules regarding ‘optional price supplements’ also apply to a cancellation insurance;
  
• USA: Appelate court affirms foreign nationals' standing to challenge a "no-fly list" inclusion;
  
• European Union: Parliamentary Transport and Tourism Committee calls for improved air passenger rights;
  
• ECJ to hear cases challenging its "Sturgeon" judgement;
  
• European Union: Public consultation of stakeholders on the "European Charter for Sustainable and Responsible Tourism";
  
• European Court of Justice: insolvency protection also applies in case of a package organiser’s fraudulent conduct;
  
• "Reviews you can trust" - UK Advertising Standards Authority finds TripAdvisor ads misleading;
  
• USA: Appelate court confirms limitation of liability clauses in airline's "Conditions of Carriage";
  
• Germany: new reference for ECJ preliminary ruling regarding Reg. 261/2004;
  
• EU Transport Commissioner receives commitment from Cruise industry to fully engage in review of passenger ship safety rules;
  
• Canada: body height is not a disability;
  
• UNESCO: cruise ships should steer clear of Venice lagoon;
  

New postings on IFTTA News

• European Council decides on accession of the European Union to the Athens Protocol;
• Austria: Supreme Court decides on innkeeper's liability with regard to theft from hotel garage;
• USA: DOT fines AirTran for deceptive price advertising;
• European Economic and Social Committee: opinion on tourism in Europe published;
• USA: man who helped to stop "underwear bomber" sues for USD 10 million;
• IFTTA Law Review 3-2011 now available;
• European Court of Justice: The directive including aviation activities in the EU’s emissions trading scheme is valid;
• Australia: Quantas succeeds against registration of "Flying Kangaroo" wines;
• USA: District Court upholds fine for traveler to Cuba who did not answer OFAC queries;
• European Union: Commission starts public consultation on the possible revision of the air passenger rights Regulation;
• Austria: new reference for ECJ preliminary ruling regarding rail passenger rights;
• U.S. Court of Appeals: violation of a government regulation no prerequisite to a claim under Article 17 Montreal Convention;
• EU Commission announces "Better Airports" package;

USA: Court rejects airline challenge to airport congestion pricing

The U.S. Court of Appeals for the District of Columbia rejected an airline industry challenge to a regulation letting airport operators charge more at busy times of the day to reduce delays.

The carriers argued the July 2008 regulation by the Transportation Department was discriminatory and unreasonable. The airlines also claimed the regulation wrongfully allowed state and local airport authorities to charge fees preempted by federal law and provided inadequate guidance to the airports on how the Department of Transportation would evaluate the reasonableness of the fees.

The court denied the petition by the Air Transport Association, which represents companies including Delta Air Lines Inc. and AMR Corp., the owner of American Airlines.

The full opinion in case Air Transport Association of America Inc. v. U.S. Department of Transportation, 08-1293, U.S. Court of Appeals for the District of Columbia is available for download here>>.

USA: exemptions from new tarmac-delay rules denied

The U.S. Department of Transportation has denied the requests of five airlines for a temporary exemption from a new rule limiting tarmac delays to three hours. The new rule goes into effect on April 29. Airlines face fines of up to $27,500 per passenger for planes that sit on the tarmac for more than three hours.

Some airlines requested exemptions for New York's Kennedy Airport arguing their operations would be affected by a runway closure. Other exemptions were requested for neighbouring airports because delays at Kennedy would disrupt operations at the other New York-area airports.

The DOT said it received 125 comments from individuals on the carriers' requests for exemption from the three-hour rule, and that all but two opposed the requests.

Source: Travel Weekly; find article here>>.

Air passengers' rights

Reference for a preliminary ruling before the ECJ (Case C-83/10 Rodríguez ea/Air France) from the Juzgado de lo Mercantil de Pontevedra (Spain) regarding the questions,

1. whether the term 'cancellation', defined in Art 2 lit l of Regulation 261/2004/EC has to be interpreted as meaning only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons?
2. whether the term 'further compensation' used in Art 12 has to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage, for breach of a contract of carriage by air in accordance with rules established in national legislation and case-law on breach of contact or, on the contrary, must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of Art 8 et seq even if such provisions have not been expressly relied upon or, lastly, are the two aforementioned definitions of the term further compensation compatible one with another?

IATA: severe criticism on European response to Icelandic volcano eruption

The International Air Transport Association (IATA) sharply criticized European governments for their lack of leadership in handling airspace restrictions in light of the Icelandic volcano eruption, and urged a re-thinking of the decision-making process. IATA in particular criticized Europe’s unique methodology of closing airspace based on theoretical modeling of the ash cloud an that decisions have been taken without adequately consulting the airlines.

Source: IATA press release of April 19, 2010; find full text here>>.

UK lawmakers: privacy fears over body scanners overblown

The privacy fears raised by the deployment of full body scanners at airports are overblown, a committee of British lawmakers said Wednesday, adding that the technology was no more of a threat to passengers' rights than pat-downs or bag searches.

The government promised to install body scanners across Britain's airports after a botched attempt to bring down a Detroit-bound jet on Dec. 25 — allegedly by a terrorist who hid explosives in his underwear.But privacy groups bristled at the prospect of scans that can peer under clothes to reveal hidden items, likening them to a "virtual strip search."

The report welcomed the introduction of the scanners and recommended that other security measures be adopted quickly, including new equipment to sniff out trace levels of explosives.

Source: Los Angeles Times; find article here>>.

Idaho: lawmakers block full-body scanners

The Idaho House of Representatives has voted 58-9 in favor of HB 573, legislation from Rep. Phil Hart, R-Athol, to restrict the use of full-body imaging for airport security in Idaho. Rep. Russ Mathews, R-Idaho Falls, backed the bill, saying Americans shouldn’t sacrifice freedoms in the name of security. The bill now moves to the Senate.

Source: The Spokesman-Review; find article here>>.

Brazil: Distribution of slots from Congonhas airport scheduled for trial this Thursday

The ministers of the Court of the Superior Court of Justice (STJ) are set on Thursday, March 25, the distribution by the National Civil Aviation Agency (ANAC) of the slots (spaces at the airport used by airlines to park / park aircraft) from Congonhas Airport (SP) will or not with the spaces in the Pantanal Linhas Aereas SA

ANAC rescheduled for the 1st of March, at 14h, in Brasilia, the public hearing for the distribution of 355 slots (time of takeoff and landing) that are not being used at the airport. The expectation of the regulatory agency is to include the redistribution of 61 slots that operated on the Pantanal Congonhas, which are of direct interest to TAM, in the process of acquisition of the company, the session was scheduled for February 10, after the postponement of the scheduled distribution, initially, to February 1.

The discussion in the STJ:

Last December, the president of the STJ, Minister Cesar Rocha, guaranteed to make the distribution ANAC, suspending the decision of the 2nd Bankruptcy Court and Judicial Recoveries. That decision permitted the holding of judicial auction sale to the Isolated Productive Unit (IPI) of the Pantanal, whose plan of reorganization provides for the integration of the slots as intangible assets of the company.

Its release was scheduled for 1st of February but was postponed after the minister, based on enterprise resource - a special appeal [kind of action against all appropriate internal decision-person] - have determined that the regulatory agency to refrain from distributing the slots of the Pantanal.

On the other hand, ANAC alleges injury to the public and the public economy, for the sale of UPI interfere with the legal competence of ANAC. In turn, for the Pantanal, is the claim of ANAC that interferes with the legal competence of the court of bankruptcy. According to the company, the right of users from Congonhas Airport will be better preserved with the sale to TAM, and not the opposite. For her, there is underutilization of space for takeoffs and no risk of increased price of tickets.

On appeal by the Pantanal presented new facts, such as selling the entire stake in the Pantanal Linhas Aereas SA to TAM away "once any risk of damage to the organization of the airport and damage to public order and economy, and remain intact the rights of users of air transport, even with the intention as expressed officially to ANAC, that the sub judice slots - designated by the Regulatory Agency as idle - return to be immediately used by the airline.

The Pantanal applied to the court to reform the decision to ANAC refrain from distributing solely the slots in the Pantanal which are housed in the process of reorganization, keeping the planned distribution of the remaining slots.

The president of the STJ grant the request of the airline. Applied to the ANAC to be revealed about the issue and that, refrain from distributing the slots pertaining to the Pantanal Linhas Aereas SA in the event of distribution that was scheduled for February 1, 2010.

The regulatory agency provided the information requested by the court in the last days 8 days. Two days later, the ANAC also brought special appeal, this time challenging the decision beneficial to the Pantanal. Minister Cesar Rocha Asfor will take your vote in both features to trial in the Special Session of the next 25 days.

Pending the decision from the Supreme Court on the right of ANAC include the redistribution of 61 slots that operated on the Pantanal Congonhas, which are of direct interest to TAM, in the process of acquisition of the company, the agency rescheduled for the 1st of March, the 14h, in Brasilia, the public hearing for the distribution of 355 slots (times of takeoff and landing) that are not being used at Congonhas Airport.

Reported to IFTTA by Ronaldo Armond

Prohibited items lists EU+USA

USA

1a.

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

List USA

1b.

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

3-1-1 Carry-Ons

EU

2a.

Code word: "Hermeticism"

• In the EU originally Regulation 2320/2002/EC on common rules in the field of civil aviation security as amended by Regulation 849/2004/EC (subject: All EU airports, service providers, catering, cleaning and cargo parties as well as all airlines both EU and foreign departing or transiting any EUairport) provided a secret (!!!) list of prohibited items, which the ECJ decided in Case (GC) C-345/06 (Heinrich) has to be published due to Regulation 1049/2001/EC regarding public access.
• A new Regulation as of 11.03.2008 repealing the former one has been issued but is not applicable yet: Regulation 300/2009/EC
• A new list of prohibited items based on Art 4 Para 2 Regulation 2320/2002/EC has been published by Regulation 820/2008/EC as amended by Regulation 483/2009/EC: Current and consolidated version of Regulation 820/2008/EC as of 30.06.2009

2b.

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

Security rules

2c.

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.

European Union: Commissioner Kuneva welcomes new report on airline charges

The report, which will be presented by the Norwegian Ombudsman Bjørn Erik Thon, is the result of a year long investigation by 11 national enforcement authorities (led by Norway). The in-depth study found that airlines are frequently including parts of their basic operational costs (handling charges, fuel charges, booking fees) into what appears to be obligatory "taxes and charges" – this can mislead consumers and falsely attract consumers to buying seemingly cheaper tickets.

The study covered 281 flights, 24 leading European airlines, as well as 34 major European airports.
The results of the investigation will feed into the industry agreement currently being elaborated following the EU enforcement sweep on airline ticket selling websites (see IP/09/783).

Source: Press release by Commissioner Kuneva; report on airline charges available here>>.

USA: continuing debate on passenger rights

While the legal debate is continued, the National Business Travel Association last month switched its position and now supports federal legislation on airline passenger rights. Two airline CEOs speaking in August at NBTA's convention in San Diego disagreed with the need for such laws, which have been proposed by the U.S. Department of Transportation and Congress.

The Airline Passengers Bill of Rights would require airlines during lengthy delays to provide food, drinking water, clean restrooms and comfortable cabin conditions; airports to develop federally approved contingency plans for long delays; and DOT to establish a consumer complaint hotline.

Source: Management Travel; 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>>.

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: wired.com; find article here>>.

European Union: airline take-off slot rules to be changed

Current rules force airlines to use the time slots at busy airports at least 80 percent of the time or face losing them the following season. After the European Parliament agreed to loosen these "use-or-lose rules", airlines will gain more flexibility in how they use take-off and landing slots: They will be entitled to the same series of slots during the summer 2010 season as were allocated in 2009, regardless of how much they use them.

Source: AEA information

ECJ: Art 22.2 Montreal Convention - material/non-material damage

Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona

Case C-69/09 (Walz/Clickair)

Question referred:

Does the limit of liability referred to in Article 22.2 of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, include both non-material damage and material damage resulting from the loss of baggage?

IATA Welcomes Abolition of Dutch Tax

The International Air Transport Association (IATA) welcomed the decision by the Dutch Government to abolish the recently introduced departure tax as part of its economic stimulus package. The tax added a cost of between EUR 11.25 to EUR 45 for every passenger departing from Dutch airports.

Source: IATA press release No 12 of 27 March 2009; find full text here>>.

Single European Sky II

SES II is a package of regulations aiming to improve the performance of the European aviation system in key areas such as safety, capacity, flight, cost efficiency and environmental sustainability, through the coordination and supervision of Member States' air traffic and the implementation of common rules and performance targets.

Binding targets for performance and sustainability of Europe's aviation system

Performance schemes for air navigation services, using criteria based on International Civil Aviation Organization policies, will be introduced through national or regional plans subject to consultation with stakeholders. Member States must use incentives and sanctions to prompt air navigation service providers to meet the targets. Independent national supervisory bodies will be appointed by Members States to ensure safety and performance standards are met.

Functional Airspace Blocks (FABs) are a key development. International flights currently have to pass through national air traffic control zones or "blocks", being handed over from one national authority to another. This system leads to bottlenecks and delays, forcing aircraft to consume more fuel and jeopardising safety.

An important feature of the first Single Sky package was supposed to be the introduction of FABs, cutting across national frontiers to enable air traffic controllers to manage flights in a more rational way. Around nine European FABs have so far been designed - including a single UK-Ireland zone - but it is felt that insufficient progress has been made.

The new regulation will give a fresh impetus to this project by stipulating that FABs must be established no later than three years after entry into force of the regulation (i.e. by June 2012). A coordinator will be appointed to facilitate the implementation of, and the merger between, the blocks. Funding will be made available from the Trans-European Network programme and the European Investment Bank and from the inclusion of aviation in the Emissions Trading Scheme.

Regulations on Performance and sustainability of the European aviation system and on Aerodromes, air traffic management and air navigation services.

The Council (of EU transport ministers) is expected to approve the legislation at the end of March.

Source: http://www.europarl.europa.eu/news/expert/infopress_page/062-52484-082-03-13-910-20090324IPR52483-23-03-2009-2009-false/default_en.htm

"Vice-President Antonio Tajani launches an investigation into lost luggage figures"

According to the EU Press Room, "The lost luggage phenomenon when travelling by air has been brought to the attention of the European Commission. Some recent figures published by the UK Air Transport Council (AUC) confirm the concerns expressed by Vice-President Tajani's, in charge of Transport. Vice-President Tajani decided today to take immediate measures on passenger rights starting with an investigation on the scale of the phenomenon. The European Commission's Directorate-General for Transport and Energy will ask today for information from the Airports International Council, and the Association of European Airlines and other parties concerned. The Commission will also contact AUC that was the first to reveal this information. "Safeguarding passenger rights is an essential component of European transport policy. The European Commission wants to be close to its citizens, providing them with solutions to the problems they encounter. It is for this reason that I have decided to act immediately so as to shed some light on these alarming figures which, if they were to be confirmed, would call for a strong political intervention," said Vice-President Tajani. The European Commission is evaluating the effective application of Regulation 889/2002 on luggage loss and damage. At the end of this investigation the Commission will then assess whether any improvements to the Regulation are required."

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.