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?

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

ECJ Joined Cases C‑402/07 and C‑432/07 (Sturgeon ea)

Defendant (Condor Flugdienst GmbH) is of the opinion that ECJ exceeded it's competence when deciding indemnities to be paid in case of a delay of 3 or more hours under Air Passengers' Rights Regulation 261/2004/EC (judgement as of November 19, 2009). German's Highest Court BGH reopened the proceedings (Case 2 BvE 2 / 08) to debate a new preliminary ruling before the ECJ in the light of the Lisbon Judgment of German's Federal Constitutional Court (BVerfG) as of June 30, 2009 (Cases 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09).

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.

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: 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>>.

Compensation in the Event of Airline Bankruptcy

Motion for a Resolution by European Parliament

Mathieu Grosch, Artur Zasada on behalf of the PPE Group

Saïd El Khadraoui on behalf of the S&D Group

Dirk Sterckx on behalf of the ALDE Group

Michael Cramer, Frieda Brepoels on behalf of the Verts/ALE Group

B7-0153/2009

European Parliament resolution on passenger compensation in the event of airline bankruptcy

The European Parliament, – having regard to the oral question of 15 October 2009 to the Commission on passenger

compensation in the event of airline bankruptcy (O-0089/09 – B7-0210/2009),

– having regard to Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours,

– having regard to Regulation (EC) No 2027/97 of the European Parliament and of the Council of 9 October 1997 on air carrier liability in the event of accidents,

– having regard to Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators,

– having regard to 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,

– having regard to Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community,

– having regard to Rule 115(5) of its Rules of Procedure,

A. whereas Council Directive 90/314/EEC regulates aspects of the package holiday business and provides for appropriate compensation and repatriation of consumers in the event of the bankruptcy of package holiday firms,

B. whereasRegulation(EC)No2027/97establishesthenatureofaircarriers'liabilityinthe event of accidents and compensation arrangements for passengers,

C. whereasRegulation(EC)No785/2004laysdowntheinsurancerequirementsaircarriers and aircraft operators must meet,

D. whereas Regulation (EC) No 261/2004 provides for compensation for and assistance to passengers who are denied boarding or whose flights are subject to cancellation or long delay,

E. whereasRegulation(EC)No1008/2008establishesstringentfinancialrulesforaircraft operators,

PE428.771v01-00 2/3 RE\796786EN.doc

F. whereastherehasbeensubstantialgrowthinthelastdecadeinthenumberofrelatively small low-cost carriers flying to recognised holiday destinations and the number of passengers they carry,

G. whereas there have been 77 bankruptcies in the aviation sector in the last nine years, resulting in some instances in many thousands of passengers being stranded at their destinations and unable to use the return portion of their flight ticket,

1. Notes that the Commission has undertaken wide-ranging consultation of stakeholders on the question of airline bankruptcy;

2. Recalls that the Commission undertook a major study of the difficulties surrounding airline bankruptcy and its impact on passengers and forwarded its findings to Parliament in February 2009;

3. Notes the findings of that study and the range of options which it examines;

4. Recalls in this regard that there are a number of options which the Commission could pursue to strengthen the position of passengers of bankrupt airlines, including compulsory insurance for airlines, a voluntary insurance arrangement for passengers which airlines would be required to propose, and the establishment of a guarantee fund;

5. Calls on the Commission to examine the possibility of a legislative proposal and submit it, if it considers it appropriate, by 1 July 2010 which has as its specific objective the provision of compensation for passengers of airlines which go bankrupt and establishes financial and administrative arrangements, including the principle of mutual responsibility for passengers of all airlines flying in the same direction with available seats, which would ensure repatriation for passengers who are stranded at non-home airports in the event of airline bankruptcy; asks the Commission to propose, when reviewing Travel Package Directive 90/314/EC, an extension for repatriation or rerouting for the passengers concerned;

6. Calls on the Commission to consider the possibility of extending such measures to airlines which have ceased operations and caused passengers similar inconvenience to that caused by airlines which go into bankruptcy;

7. Calls on the Commission to investigate the quick release of impounded aircraft by national regulatory bodies so that those aircraft can be used to bring stranded people home;

8. Instructs its President to forward this resolution to the Council, the Commission and the parliaments and governments of the Member States.

New Commissioners / Speech Kuneva

Meglena Kuneva, the leaving commissioner for Consumer Policy held a press conference regarding the "Revision of the Package Travel Directive" (see below)

Along the way: The new designated commissioner for Consumer Policy is John Dalli (MT) and for Transport (and as VicePresident) Siim Kallas (EE)

Press conference speaking points

Brussels, 26 November 2009

SPEECH/09/559

Ladies and gentleman,

It is my great pleasure today to announce that we intend to review the current EU rules on package travel to give millions of consumers better protection if their holiday goes wrong.

Why do we feel that the current rules need a makeover?

First of all, our current EU law on package travel - the Package Travel Directive - was written almost 20 years ago, in 1990.

Back in those days, millions of European holidaymakers picked their package holiday from a glossy brochure and booked at a travel agent on the local high street.

The Package Travel insisted on:

- clear information in brochures,

- gave people the right to assistance if they had difficulties on the spot,

- gave them protection for substandard services,

- And it put in place insolvency protection if the tour operator or airline went bust.

But the 1990 Package Travel Directive is no longer suited for today’s travel market.

Increasingly large volumes of bookings are made by consumers putting together their own packages, often online.

Today, 56% of EU citizens organise their holidays themselves, so the number of those opting for a traditional pre-arranged package has fallen dramatically.

Just to give you one example, in 1997, 98 % of passengers travelling from the UK on leisure flights were protected by the Directive, now less than 50% are protected.

Fewer and fewer people are getting the holiday protection they deserve. That is NOT good enough. There are 3 main areas I want to focus on in this review:

1. The first, is the central issue of the Scope of the Directive.

Simply put, which of new kinds of package holidays should be covered by EU protection?

Most pressingly, we need to look at adapting the rules to take account of the "next generation" of "dynamic packages". This is where consumers make up their own package choosing two or more services, for example a flight and a hotel, either from one supplier – like Expedia or Opodo. Or from different suppliers that are commercially linked.

In the past 2 years, almost 1 in 4 EU citizens have booked these new "dynamic packages." In some countries, like Sweden and Ireland, the figure is as high as 40%!

My starting point is that we should look to extend the protection in the current directive as far as possible to cover all the new kinds of ‘dynamic packages.’ That way, we can provide more legal certainty for businesses and tough protection for consumers.

Of course we are looking forward to getting detailed feedback from industry and all stakeholders before taking final decisions on this issue.

Package Travel Label

Speaking of legal certainty, I want to draw your attention particularly, to the new ‘Travel Protection Label’ which we are considering introducing. The idea is to have a logo which makes it absolutely clear for consumers and businesses which holidays are covered by this Package Holiday Protection. I hope that this initiative will gain widespread support during the consultation.

2. Legal Responsibility

The second big issue we need to get right in this consultation is the issue of legal responsibility.

Simply put, who is responsible for what when things go wrong? Is it the carrier, is it the travel agent, is it the tour operator?

Today the old distinctions between carriers, tour operators and travel agents are often blurred. It is often not all that clear who is actually responsible for making sure that everything that is the holiday contract which the consumer signs has been properly carried out.

We urgently need to clarify these legal responsibilities.

3. Insolvency Finally, I want to come to the critical issue of protection for consumers in the

case of insolvency – in particular, what do when airlines go bust.

I know that many of you, like me, will have watched with great concern the TV pictures, as Sky Europe, XL, Future, Zoom and other airlines went bankrupt in recent months and years.

Thousands of airline passengers were stranded in airports across Europe, with worthless tickets, unable to get home. Like me, I am sure many of you watched with dismay and thought, how can this be legal? How can this be right?

Bankruptcy has become an increasing concern for European consumers. The rise of airline insolvencies has grown substantially. Between November 2005 and September 2008 alone, 29 airlines went bust.

In far too many cases European consumers found themselves "left out in the cold" unprotected and with no way of getting home.

Now is the right time to the ask the tough questions about the need to extend basic protection against airline bankruptcy to consumers across the board, including to stand alone airline tickets.

Ladies and gentlemen,

I Iook forward with great interest to getting feedback from industry, consumer organisations and the public on this consultation.

Armed with that feedback, I am confident we can get the right solutions and deliver: more low cost holidays; more competition; and more value for money and choice for consumers.

Thank you, now I am happy to take any questions you might have.

Bust airlines

MEPs back compensation for grounded passengers:

If your airline goes bankrupt and leaves you stranded what are your legal rights? Members of the Parliament's Transport Committee want grounded passengers to have access to a special compensation fund. In the last decade almost 100 airlines across the European Union have gone bankrupt - leaving thousands of holiday makers and business flyers out of pocket and stuck at a foreign airport.

Sabena, Sky Europe and Olympic Airlines are just three of the large carriers that have gone bankrupt due to a combination of high fuel costs, competition and new security measures after 9/11.

Transport Chair Brian Simpson speaks of "clear loophole"

On 7 October during the plenary session in Brussels, the Chair of the all-party Transport Committee, Brian Simpson (Labour, North West of England), formally asked the European Commissioner for Transport Antonio Tajani to set up "a reserve compensation fund" and consider updating passengers' rights legislation.

He told fellow MEPs that "here we have a clear loophole and it would be preferable for all if we could work together and fill it in".

He added: "We have also floated the idea of establishing a reserve compensation fund, but this must not be seen as a demand. We merely wish to open up the debate as to what mechanism will help us best solve this problem."

Transport Commissioner Tajani backs compensation

Commissioner Tajani told Members that "passengers should indeed receive compensation. We are working on specific measures to find the best solution. One solution is a compensation fund derived from airlines' contributions. Another would be changes in bankruptcy law in the member states".

There is a consensus across the Parliament's main political groups that the European Union needs to do more to help passengers stranded by bankrupt airlines. A Parliamentary resolution is due to be tabled later in the autumn.

Source: 20091002STO61739

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

ECJ preliminary ruling: change in reservation re Reg 261/2004/EC

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 Dec 2008 - Sylvia Bienek v Condor Flugdienst GmbH

Case C-525/08

Questions referred

1. Does a change in reservation to another flight constitute a situation covered by Article 4(3) of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights;

2. If the answer to the first question is in the affirmative:

Must that provision also be applied to a change in reservation which was not instigated by the air carrier, but by the tour operator alone?

European Commission proposes new rights for bus and maritime passengers

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

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

Rights of persons with reduced mobility

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

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

Compensation and assistance to passengers when their journey is interrupted

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

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

Liability for death and injury of passengers

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

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

Treatment of complaints and means of redress

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

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

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

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