IFTTA - International Travel and Tourism News: European Court of Justice

Showing posts with label European Court of Justice. Show all posts

Monday, January 20, 2014

Thursday, January 03, 2013

Monday, September 03, 2012

Friday, June 22, 2012

Monday, March 05, 2012

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;

Tuesday, October 18, 2011

Update on IFTTA news

The following news have recently been posted to the IFTTA Website:

Tuesday, August 17, 2010

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

Wednesday, June 16, 2010

European Court of Justice: no obligation to reimburse patient for costs of unscheduled hospital care during a temporary stay in another Member State

Following a complaint from a person insured under the Spanish national health system who had had to be admitted to hospital unexpectedly during a stay in France and who, on his return to Spain, was refused reimbursement of the portion of the hospital costs which, in accordance with French legislation, he had been left to pay, the Commission decided to bring action against Spain for failure to fulfil obligations. The Commission maintains that the Spanish legislation is in breach of the principle of freedom to provide services, since it refuses persons insured under the national health system reimbursement for that portion of the costs of care which is not covered by the institution of the Member State of stay. In that way, the effect of the legislation in question is to restrict not only the provision of hospital care, but also the provision of tourist or educational services, the obtaining of which can be the reason for a temporary stay in another Member State.

In its judgment in Case C-211/08 - Commission v Spain, delivered June 15, 2010, the Court of Justice held that the freedom to provide services encompasses the freedom of an insured person established in a Member State to travel – as a tourist or student, for example – to another Member State for a temporary stay and to receive hospital care there from a provider established in that Member State, where the need for such care during that stay arises because of his state of health. Nevertheless, the Court considers that, viewed globally, the Spanish legislation cannot be regarded as restricting the freedom to provide hospital care services, tourist services or educational services.

The fact of imposing on a Member State the obligation to guarantee to persons insured under the national system that the competent institution will provide complementary reimbursement whenever the level of cover applicable in the Member State of stay in respect of the unscheduled hospital treatment in question proves to be lower that that applicable under its own legislation would ultimately undermine the very fabric of the system which Regulation No 1408/71 sought to establish. In every such case, the competent institution of the Member State of affiliation would be systematically exposed to the highest financial burden, whether through the application of the legislation of a Member State of stay under which the level of cover is higher than that provided for under its own or through the application of its own legislation in the contrary situation.

The Court therefore dismissed the action brought by the Commission.

Source: ECJ press release No 56/10 of June 15, 2010

Full text of judgement available here>>.

Tuesday, June 08, 2010

European Court of Justice: Directive on unfair terms in consumer contracts allows stricter consumer protection rules by member states

The Tribunal Supremo (Spanish Supreme Court) asked the Court of Justice, in essence, whether the Directive on unfair terms in consumer contracts precludes a Member State from providing in its legal system, for the benefit of consumers, for an assessment as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

In judgement of June 3, 2010 in Case C-484/08 (Caja de Ahorros v. Ausbanc), ECJ held that the Directive carried out only a partial and minimum harmonisation of national legislation concerning unfair terms, while recognising that Member States have the option of affording consumers a higher level of protection than that for which the Directive provides. Member States therefore may retain or adopt, throughout the area covered by the Directive, rules which are stricter than those provided for by the Directive. Consequently, the Directive does not preclude national legislation which authorises judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

Source: ECJ press release No 52/10 of June 3, 2010

Tuesday, May 18, 2010

European Court of Justice: Advocate General gives opinion on jurisdiction based on website advertising

Advocate General Trstenjak today delivered her opinion in joint cases C-585/08 (Pammer v. Reederei Schlüter) and C-144/09 (Hotel Alpenhof v. Heller). Both cases concern the issue whether the fact that a website of the party with whom a consumer has concluded a contract can be consulted on the internet was sufficient to justify a finding that an activity is being 'directed', within the terms of Article 15(1)(c) of Regulation (EC) No 44/2001 ('the Brussels I Regulation'). Advocate General Trstenjak suggested to answer that the mere accessablity of a website is not sufficient. National courts rather have to take into regard all circumstances including content of the website, hitherto business activities, language, domain name and extent of use of internet advertising opportunites. It should, however, not be decisive whether it was an 'interactive' or 'passive' website as the 'direction' of an activity does not depened on the particular technical means used to conclude the contract.

Case C-585/08 (Pammer v. Reederei Schlüter) in addition involved the issue whether a journey on a cargo ship including accomodation, opportunity of shore leaves and certain leisure facilities on board (swimming pool, gym, deck-chairs, etc.) constitutes a contract which, for an inclusive price, provides for a combination of travel and accommodation according to Art. 15(3) of the Brussels I Regulation. Advocate General Trstenjak suggested to answer this question to the positive.

Full opinion available in German, French, Italian, Slovene and Finnish.

Monday, May 10, 2010

European Court of Justice: liability limit of Montreal Convention includes both material and non-material damage

The Montral Convention provides that the liability of a carrier in the case of destruction, loss, damage or delay of baggage is limited to the sum of 1000 Special Drawing Rights (SDR) for each passenger (a sum equivalent to approximately €1134.71)3, unless a passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, as a rule a carrier is liable to pay a sum not exceeding the declared sum.

On 14 April 2008, Mr Walz brought an action against the airline Clickair claiming damages from it for the loss of checked baggage in the context of a flight from Barcelona (Spain) to Oporto (Portugal) operated by that company. In that action, Mr Walz claimed total damages of €3200: €2700 for the value of the lost baggage and €500 for non-material damage resulting from that loss. The Juzgado de lo Mercantil nº 4 de Barcelona (Commercial Court No 4, Barcelona, Spain), before which the proceedings were brought, asks whether the limit of air carriers’ liability set by the Montreal Convention in the case of loss of baggage includes both material and non-material damage or whether, on the contrary, material damage is subject to the limit of 1000 SDR, while, on the other hand, non-material damage is subject to a further limit of the same amount, so that the total combined limit for material and non-material damage is 2000 SDR.

European Court of Justice on May 6, 2010 ruled that for the purposes of determining the limit of an air carrier’s liability for the damage resulting, inter alia, from the loss of baggage, the term ‘damage’ in the Montreal Convention must be interpreted as including both material and non-material damage.

Source: ECJ press release 43/10
Full text of judgement Walz v Clickair C-63/09 available here>>.

Monday, May 03, 2010

Germany: reference for preliminary ruling of the ECJ in regard to travel agency taxation

German Federal Financial Court (Bundesfinanzhof) filed a reference for preliminary ruling on whether the 'special scheme for travel agents' in Article 26 of Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes also applies to the sale by a travel agent of opera tickets in isolation, without the provision of additional services (Case C-31/10 - Minerva Kulturreisen).

Art 26 of the directive provides as follows:
1. Member States shall apply value added tax to the operations of travel agents in accordance with the provisions of this Article, where the travel agents deal with customers in their own name and use the supplies and services of other taxable persons in the provision of travel facilities. This Article shall not apply to travel agents who are acting only as intermediaries and accounting for tax in accordance with Article 11 A (3) (c). In this Article travel agents include tour operators.
2. All transactions performed by the travel agent in respect of a journey shall be treated as a single service supplied by the travel agent to the traveller. It shall be taxable in the Member State in which the travel agent has established his business or has a fixed establishment from which the travel agent has provided the services. The taxable amount and the price exclusive of tax, within the meaning of Article 22 (3) (b), in respect of this service shall be the travel agent's margin, that is to say, the difference between the total amount to be paid by the traveller, exclusive of value added tax, and the actual cost to the travel agent of supplies and services provided by other taxable persons where these transactions are for the direct benefit of the traveller.
3. If transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the Community, the travel agent's service shall be treated as an exempted intermediary activity under Article 15 (14). Where these transactions are performed both inside and outside the Community, only that part of the travel agent's service relating to transactions outside the Community may be exempted.
4. Tax charged to the travel agent by other taxable persons on the transactions described in paragraph 2 which are for the direct benefit of the traveller, shall not be eligible for deduction or refund in any Member State.

Tuesday, April 20, 2010

Bulgaria: reference for a preliminary ruling on PTD

Bulgarian "Varhoven Kasatsionen sad" filed a reference for preliminary ruling on the interpretation of the Package Travel Directive 90/314/EEC (PTD). The court wants to know whether the PTD is applicable to the present case (no details of the case available in ECJ publication). The further questions are:

How is the term 'other tourist services' in Article 2(1)(c) of Directive 90/314/EEC to be interpreted, and does that term cover the organiser's obligation to insure the consumer?

- What risks must be covered by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company?
- What type of insurance must be provided by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company: a group insurance policy covering all the participants in the package tour or an individual insurance policy covering each individual participant in the package tour?

Is the organiser's obligation under Article 4(1)(b)(iv) of Directive 90/314/EEC to provide the consumer before the start of the tour with information on the optional conclusion of an insurance policy to cover the costs of assistance, including repatriation, in the event of an accident to be interpreted as meaning that it includes the organiser's obligation to conclude an individual insurance policy with the consumer covering the costs of assistance, including repatriation, in the event of an accident?
Is the organiser of the tour obliged under Directive 90/314/EEC to provide the consumer with the original insurance policy before the tour commences?
How is the term 'damage' resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC to be interpreted?
Does the term 'damage' resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC also cover liability in respect of non-material damage suffered by the consumer?
How are the third and fourth subparagraphs of Article 5(2) of Directive 90/314/EEC to be interpreted in the event of claims for compensation in respect of non-material damage on the ground of personal injury which are based on the failure to perform, or the improper performance of, the services under the contract, including the failure to provide the consumer with the original insurance policy, in the case where the latter does not provide for any limitation of liability to pay compensation?

Full text of reference C-32/10 available here>>.
First reported to IFTTA by Stephan Keiler.

Friday, February 19, 2010

Sturgeon v. Condor: German Supreme Court grants compensation to plaintiffs

Following the preliminary ruling of the ECJ in Case C-402/07 - Sturgeon v. Condor, German Supreme Court (BGH) in judgement Xa ZR 95/06 delivered Feb. 18. 2010, granted plaintiffs' claim for compensation. BGH saw no reason for another reference for preliminary ruling as requested by Condor: there were no doubts that Reg. (EC) 261/2004 was valid and compatible with the Montreal Convention. ECJ had made clear that the Regulation provides for compensation in cases of inordinate delay if interpreted according to the principle of equal treatment.

As Condor had failed to prove extraordinary circumstances decision had to made in favour of plaintiffs.

Source: BGH press release 40/2010 of Feb 19, 2010. Find full text in German here>>.

Wednesday, February 17, 2010

European Court of Justice has no jurisdiction to interpret Warsaw Convention

Reference to ECJ was made in the course of proceedings brought by Ms Bogiatzi against Société Luxair, société luxembourgeoise de navigation aérienne SA (‘Luxair’), and Deutscher Luftpool, an association under German law, concerning joint and several liability to compensate her for the injury she suffered as a result of an accident which occurred while boarding a Luxair aeroplaneon 21 Dec. 1998.

On 22 December 2003, Ms Bogiatzi brought proceedings for damages against Deutscher Luftpool – an association of aviation insurers which is governed by German civil law – and Luxair before the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg), relying on Regulation No 2027/97 and the Warsaw Convention. Ms Bogiatzi’s claim, brought five years after the events at issue took place, was held inadmissible. The court held that the two-year limitation period provided for in Article 29 of the Warsaw Convention for bringing actions for damages is predetermined and may not be suspended or interrupted. The inadmissibility of the claim was confirmed on appeal. Ms Bogiatzi then appealed on a point of law to the Cour de cassation (Court of Cassation) which decided to stay proceedings and file a reference for preliminary ruling to the ECJ.

In its judgement of 22 October 2009 ECJ rejected jurisdiction for the following reasons:

Pursuant to Article 234 EC, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the EC Treaty and on the validity and interpretation of acts of the institutions of the Community. According to settled case-law, an agreement concluded by the Council, in accordance with Articles 300 EC and 310 EC, is, as far as the Community is concerned, an act of one of the institutions of the Community, within the meaning of subparagraph (b) of the first paragraph of Article 234 EC. The provisions of such an agreement form an integral part of the Community legal order as from its entry into force and, within the framework of that order, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement. However, as the Community is not a contracting party to the Warsaw Convention the Court does not, in principle, have jurisdiction to interpret the provisions of that convention in preliminary ruling proceedings.

Even though the Court has jurisdiction to interpret an international convention which has not been ratified by the Community where and in so far as, pursuant to the Treaty, the Community has assumed the powers previously exercised by the Member States in the field to which such convention applies, in absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter cannot, simply because at the material time all those States were parties to the Warsaw Convention, be bound by the rules set out therein, which it has not itself approved.

The Warsaw Convention therefore does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.

Regulation No 2027/97 must be interpreted as not precluding the application of Article 29 of the Warsaw Convention to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the Community.

Full text of judgement C‑301/08 of Oct. 22, 2009 available here>>.

Tuesday, February 16, 2010

ECJ Advocate General Mazák: liability limits of Montreal Convention cover both, non-material and material damage

Mr. Walz' checked suitcase was lost on 4 June 2007 during a flight from Barcelona to Porto operated by Clickair. Mr Walz claimed damages of EUR 3 200: EUR 2 700 for the value of the lost baggage and EUR 500 for non-material damage resulting from that loss. Clickair challenged the amount of the damages claimed because it exceeded the limit for liability for lost baggage laid down by Article 22.2 Montreal Convention.

The referring court (Juzgado de lo Mercantil No 4 de Barcelona) observed that the Montreal Convention did not draw any distinction according to the type of damage to which the carrier’s liability relates, and took the view that the limitation on the carrier’s liability should cover both non-material and material damage. However, it indicated that a number of interpretations of Article 22.2 of the Montreal Convention were possible.

In his opinion delivered on 26 January 2010, Advocate General Mazák proposed that the Court should answer the question referred as follows:

Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, must be interpreted as meaning that, in the transport of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights per passenger in total, whatever the type of damage and the method of providing compensation.

Case C-63/09 - Axel Walz v. Clickair S.A; full text of opinion available here>>.

Friday, February 12, 2010

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).

Friday, January 08, 2010

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>>.

Tuesday, January 05, 2010

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-On s

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.

Thursday, November 19, 2009

European Court of Justice rules on differentiation between cancellation and long delay

In joined cases C‑402/07 and C‑432/07, the European Court of Justice today ruled as follows:

1. Articles 2(l), 5 and 6 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning.

2. Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.

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

Obviously the court wanted to avoid the consequences of declaring substantial provisions of the Regulation void, as had been suggested by Advocate General Sharpston. Even if the result may be regarded satisfying, the interpretation by the court seems a bit like squaring the circle.

Judgement available for download here>>.