Recent postings on IFTTA News

• German Supreme Court: tour organizer must not reserve alterations of the flying times;
• Austrian Supreme court asks CJEU for interpretion of Reg. 785/2004 and the Montreal Convention;
• Aviation Safety Network: accident fatalities at record low in 2013; 
•  UK: Supreme Court finds refusal of double room to same sex couple discriminatory;
•  U.S. Supreme Court refuses to hear appeal in West Caribbean Airways crash case; 
• Austrian Supreme Court: hotelier liable for legionella disease; 
• Canada: Ontario Superior Court of Justice decides on Montreal Convention exclusivity; 
• Australia: Supreme Cout of Queensland decides in 'cramped' air passenger case; 
• U.S. Jurisdiction re Eurail Pass; 
• Article on hotel classification in Ireland; 
• IFTTA Law Review 3-2013 now available online;
• UK: Court of Appeal decides in broken glass door case; 
• Australia to abolish travel agents licensing; 
• CJEU decides on jurisdiction in package travel case; 
• European Court of Human Rights: few hours' detention of airline passenger for airport security checks not excessive ; 
• Conference on latest developments in European Travel Law at ERA in Trier, Dec. 5-6, 2013; 
• CJEU: Including fingerprints in passports is lawful; 
• USA: DOT fines United Airlines USD 1.1 million for lengthy tarmac delays; 
• European Court of Human Rights affirms internet news portal's liability for offensive online comments of its readers about a ferry company; 
• USA: Appelate court decides on angry passenger's Facebook and Twitter posts about an airline employee; 
• Master program in International Tourism Management and Analysis (ITMA); 
• France: Court of Appeal affirms fine for price fixing in the leisure and tourism sector; 
• UK: Court of Appeal clarifies "accident" according to Article 17 of the Montreal Convention;         

Update on IFTTA News

• German Court challenges EU Regulation on security standards for passports and travel documents; 
• UK: airlines to include debit card surcharges in headline prices;
• Canada: Transportation Agency decides in flight cancellation and overbooking cases; 
• Germany: lugagge to be carried on a later flight is no legitimate reason to deny boarding; 
• Denmark: passengers of a cancelled flight entitled to rerouting at the earliest opportunity; 
• New Body Scanners at Scottish Airports; 
• Netherlands: new reference for ECJ preliminary ruling regarding air passenger rights; 
• German Supreme Court: no compensation for flight cancellation caused by strike; 
• EU Economic and Social Committee publishes opinion on passenger rights in all transport modes; 
• Egypt: new tourism minister appointed; 
• IFTTA Law Review 2-2012 available online; 
• USA: DOT fines companies for violating Consumer Protection and Price Advertising Rules; 
• UK: Bad Taste Tweets Not Criminal; 
• USA: Airlines lose appeal against DOT fare rules;
• EU Commission publishes consumer tips for visitors to the 2012 Olympic Games; 
• UK and Unfair Contract Terms Reforms; 
• CJEU: inclusion of flight cancellation insurance as a default setting unlawful when selling air tickets over the internet;
• UK: British Airways to check passengers on Google?; 
• Austria: regulation on proper rail passenger behaviour; 
• USA: new law to require airlines to seat families together?; 
•  Scottish Jurisdiction over Shetland; 
• Austria: Appelate court decides on "fly all or pay up" clauses; 
• Spain: Court of Appeal of Barcelona regards Ryanair's boarding pass printing policy lawful; 

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;
  

Recent IFTTA News Postings

• Germany: appellate court upholds denial of injunction against hotel review website;
  
• USA: DOT fines Spirit Airlines over handling of disability complaints and Finnair for violating price advertising rules;
  
• USA: Costa Concordia victims sue for USD 460 milion in Florida;
• European Economic and Social Committee publishes opinion on the ‘functioning and application of air passenger rights';
• USA: New York law firms file class action against Costa;
  
• Canada: change in airline pet policies ordered by CTA;
• European Union: Costa Concordia accident and Commission review of passenger ship safety legislation;
  
• Austria: tour organiser not liable for costs of extended stay caused by flight cancellation due to the ash cloud crisis;
  
• Germany: railway company liable for black ice accident on platform;
  
• USA: deplaned passenger's complaint fails to state a viable cause of action under the Montreal Convention;
  
• Austrian Supreme Court: no liability of the tour operator for rare injury caused by narrow seating in a coach;
  

More news items at IFTTA website

• USA: Oklahoma's lawsuit against online travel companies dismissed
• Germany: Montreal liabilty limit for lost baggage applies per passenger regardless of number of checked pieces of baggage
• UNWTO: tourism a vehicle for gender equality
• Egypt: Minister of Tourism initiates new tourism campaign
• Ireland: Eyjafjallajökull eruption referred to the ECJ
• Finland: new reference for ECJ preliminary ruling regarding Reg. 261/2004 and "denied boarding"
• Austria: Supreme Court refers Pammer case back to court of first instance
• Mexico: President Calderon signs National Agenda for Tourism

Recent news postings on the IFTTA website

• USA: Air France fined for unlawful baggage liability disclaimer
• Canada: Warsaw Convention applied on non-complinace with wheelchair request
• Brazil: Gol Airlines must compensate the victim's sister to crash for R$ 120,000
• USA: court ruling entitles American Airlines to pull its fares from Orbitz
• USA: reasonable standard of care applies on pilot decisions to disembark passengers under Tokyo Convention
• UK: OFT Strategy on Online Shopping - Consumer Protection
• Germany: Prussian foundation entitled to interdict commercial photos and film-shots of its castles and gardens
• Hotelstars Union: Baltic Countries joined
• Europe: Consumer Centres' Network publishes survey on European Ski Resorts
• USA: some websites fail to identify operating carrier
• US Airport search angers Indian diplomat
• Germany: new reference for preliminary ruling with regard to Reg. 261/200
• USA/Brazil: open skies agreement
• France: Continental liable for Concorde crash

Find more at iftta.org.

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

Thomas Cook agreed to buy Öger Tours

Thomas Cook Group PLC - Europe's second-largest travel company - agreed to buy the German tour operator Öger Tours GmbH, a specialist in package holidays and tours to Turkey

(about 400.000 passengers; revenues: about 250 millionen Euro in 2009).

Vural Oeger, founder and manager, plans to sell 100 percent of the company's shares to Thomas Cook for about 30 million Euro but will join the supervisory board of Thomas Cook's German branch.

The brand Öger Tour and its Hamburg headquarters will remain. The acquisition is conditional upon antitrust clearance. The companies expect it to be completed by September 2010.

Source: http://www.faz.net/s/RubD16E1F55D21144C4AE3F9DDF52B6E1D9/Doc~E443B40AA491C46FD841C068506E60867~ATpl~Ecommon~Scontent.html

Germany: ban of external guided tours at "documenta" exhibition justified

"Documenta" is one of the most important exhibitions of modern and contemporary art which takes place in Kassel, Germany every five years. In a judgement of May 4, 2010, OLG Frankfurt (Case 11 U 70/09) decided that the managing company of the event is allowed to ban external suppliers, in particular tour operators, from offering guided tours at the exhibition: the company had a legitimate interest to cover the costs of the exhibition by providing its own guided tours which constituted a justified reason to exclude external organisers. The ban could not be regarded a misuse of a market dominance.

Source: www.olg-frankfurt.justiz.hesse.de
Full text of judgement available in German here>>.

Germany: who can claim compensation for loss of holiday enjoyment?

Plaintiff had booked a Danube cruise arrangement with defendant for himself and his wife. As defendant cancelled the cruise, plaintiff claimed for compensation for loss of holiday enjoyment. Defendant payed a compensation half of the packacke price for one person to plaintiff but refused to pay any compensation in regard to plaintiff's wife, arguing plaintiff had had no authorisation by his wife when asserting the claim. A later assignation of the claim had missed the one month deadline. Plaintiff therefore filed a law suit.

Both, court of first instance (AG Frankfurt am Main) and appelate court (LG Frankfurt am Main) granted the claim: even though until to the assignation only plaintiff's wife herself had been entitled to the claim, the assignation constituted a retroactive authorization of the plaintiff.

In judgement Xa ZR 124/09 of May 26, 2010, German Supreme Court upheld these decisions. Though the court tended to the view that plaintiff as contract partner of defendant was entitled to file an individual suit this issue didn't have to be definitely clarified as the assignation had constituted a retroactive authorization, anyway.

Source: BGH press release 109/2010 of May 26, 2010

Germany: Ryanair must not charge extra fees for credit card payments

Upon law suit of Federal Consumer Asscoiation (Bundesverband der Verbraucherzentralen), German Supreme Court (BGH) in judgement Xa ZR 68/09 of May 20, 2010 decided that Ryanair may exclude chash payment but, however, must not charge extra fees for card payment. BGH held that to receive payments of the customers was one of the basic obligations of an entrepreneur who therefore had to provide a common and reasonable way to pay. If payments are only possible by cards no extra fee can be charged therefore.

Source: BGH press release; available in German here>>.

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.

German Supreme Court: flexible pricing in travel brochures admissible

A German association combatting unfair competition sued TUI for not publishing final prices in travel brochures. TUI had published prices with the reservation of a revision of EUR 50 up or down applying to each flight route. The association saw an infringement of pricing rules requiring indication of a binding price.

German Supreme Court (BGH) in judgement I ZR 23/08 - Costa del Sol, of April 29, 2010, however, deemed the reservation to be admissible because of the limitations in range and reasons of potential revision as well as because of a clear reference to potential price changes until conclusion of the contract. Such reservation would allow tour operators a certain fexibility in printed brochures which was a matter of course in internet trading.

Source: BGH press release 92/2010 of April 29. 2010; full text available in German here>>.

Obviously BGH saw no cause to file a reference for preliminary ruling with regard to the interpretation of Art. 3 para 2 PTD.

German Supreme Court decides on cross-ticketing

German Supreme Court (BGH) in today's judgment Xa ZR 5/09 decided that airlines must not declare a ticket void if the flight coupons are not used in their correct order. Such provisions are widely used in general conditions of contract of several airlines to prevent passengers from booking flight segments which they actually don't want to use in order to benefit from a lower price.

In the particular case the German Federal Consumer Protection Association (Bundesverband der Verbraucherzentralen) had sued British Airways and Lufthansa to cease and desist from using such provisions.

BGH acknowledged a legitimate interest of the airlines to avoid evasions of their tariff systems; this purpose, however, could also be achieved by milder means as for instance a surcharge for not having used a coupon for a flight segment. To completely ban the passenger from further contractual services would be disproportionate and against the principle of good faith as the provisions at stake made no distinction on whether the passenger deliberately booked more segments than required or left coupons unused for justified reasons.

Source: BGH press release 91/2010; full text available in German here>>.

German Supreme Court: no compensation for flight cancellation due to bad weather condidtions

Plaintiff had booked a flight from XRY (Jerez, Spain) to HHN (Hahn, Germany) for himself and his wife for Oct. 25, 2007 with Ryan Air. Departure was scheduled 10:00 a.m.. Due to foggy conditions at XRY, the flight was cancelled. The aircraft landed in SVQ (Sevilla, Spain) and returned to HHN from there. Plaintiff and his wife were offered an alternative flight on Oct. 27 which they refused. They booked a flight from MAD (Madrid, Spain) to FFM (Frankfurt, Germany) for Oct. 25 instead.

Plaintiff sued for compensation of EUR 400 each under Art. 7 Reg. (EC) 261/2004 as well as additional costs of the flight MAD-FFM.

First instance court (Amtsgericht Simmern) dismissed the claim. Appellate court granted the claim to a large extent.

Upon appeal by Ryan Air, German Supreme Court (BGH) dismissed the claim with regard to compensation under Art. 7 and repealed the judgement with regard to additional costs for procedural supplement.

In judgement Xa ZR 96/09 of March 25, 2010, BGH held that whether a cancellation reasonably could have been avoided had to be judged from case to case. Under the particular circumstances it had not been foreseeable how long the foggy conditions would last. Taking into regard the impact on the further flight schedule it would therefore not have been reasonable for Ryan Air to postpone the decision on cancellation.

Anyway, by offering alternative transportation not before Oct. 27, Ryan Air may have failed to comply with its obligation to provide adequate alternative transportation and may be liable for additional costs - which appellate court will have to consider in further proceedings .

Source: BGH press release 64/2010, available in German here>>.

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>>.

Germany: Lufthansa facing a four-day strike of its pilots

German pilots’ union Vereinigung Cockpit has called on Lufthansa pilots to participate in a four-day strike from Feb. 22 to 25. Lufthansa said the decision was made despite willingness shown by the airline to reach a negotiated settlement. Vereingung Cockpit tries to explain their reasons in a passenger information sheet.

Lufthansa's German website provides a link to their passenger information ("Informationen zum angekündigten Pilotenstreik"); however there is no such link or information in the English version. The information provided in German claims that in case of a strike and resulting irregularities passenger care will rank first for Lufthansa. At the current stage they grant free re-booking to other Lufthansa flights subject to certain conditions and restrictions. In case of a strike they announce to allow free cancellation or re-routing.

There is no mentioning of compensation for cancelled flights according to Reg. 261/2004, though. Media report that Lufthansa intends to rely on "extraordinary circumstances". However, in C-549/07 - Wallentin-Hermann ECJ has taught us that the term "extraordinary circumstances" requires a narrow interpretation an that recital 14 of the Regulation did not mean that the events listed there themselves constitute extraordinary circumstances, but only that they may produce such circumstances. Even though "strike" is mentioned as a potential reason for extraordinary circumstances in recital 14 of the Regulation, thus there remains doubt whether a strike of the operating carrier's own staff can amount to this exoneration.

A new reference for preliminary ruling seems a likely consequence ...

German Supreme Court: statutory period of limitation of Montreal Convention not applying to claims under Reg. (EC) 261/2004

On April 2, 2008, plaintiff had filed a claim for compensation under Reg. (EC) 261/2004 because of cancellation of his scheduled flight from FRA to PMI on Nov. 19, 2005. The statement of claim had been delivered to defendant on May 5, 2008.

Both, first instance court (AG Rüsselsheim) and court of appeal (LG Darmstadt) dismissed the claim. Court of appeal argued that Reg. 261/2004 did not contain any statute of limitation. This loophole had to be filled by applying the limitation period of Art. 35 Montreal Convention as Reg. 261/2004 was supplementing the Convention with regard to passenger rights. As plaintiff's law suit had missed this limitation period, the claim had to be dismissed.

In judgement Xa ZR 61/09 of Dec. 10, 2009 German Supreme Court rejected application of the limitation period under the Montreal Convention: Montreal did not cover cancellation and the compensation under Reg. 261/2004 was not a claim for damages in the meaning of Art. 19 and 29 Montreal Convention. Though Reg. 261/2004 was supplementing the Convention, the two legal acts did not constitute a consistent legal system. Therefore not Montreal but the limitation period under national law was applicable.

Supreme Court thus repealed the judgement remanding the case to the court of appeal.

Judgement Xa ZR 61/09 of Dec. 10, 2009 available in German here>>.

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).

Germany: new Supreme Court decision on liability under Reg. 261/2004

Plaintiff had booked a round trip flight FMO-FRA-GRU-FLN-GRU-MUC-FMO with defendant air carrier (LH). The section GRU-MUC was a codesharing flight with RG, recognizable by indication of both flight numbers (LH/RG) and the note "operated by RG". The flight GRU-MUC was cancelled and plaintiff rerouted to a later LH flight to FRA. Due to delayed departure of the latter flight of more than 4 hrs, plaintiff missed her connecting flight to FMO. As the next available flight FRA-FMO was also cancelled she was rerouted once more to CGN.

Plaintiff sued LH for compensation of EUR 600 under Reg. (EC) 261/2004. First instance court granted the claim, court of appeal dismissed same. Upon further appeal of plaintiff, German Supreme Court (BGH) repealed the judgement remanding the case to the court of appeal:

"Operating carrier" in art. 5 par. 1 lit c of Reg. 261/2004 had to be interpreted the same way as "actual carrier" in art. 39 Montreal Convention, thus meaning the carrier which actually operated the flight regardless of an exclusive contractual relationship with another carrier. The purpose of a high level of consumer protection would not require a different interpretation. In case of code sharing only the carrier actually operating the flight was able to influence its performance. The purpose of the provision would not allow to regard the other cooperation partner of the code share flight as being "operating" same as well.

Operating carrier of the flight GRU-MUC had therefore only been RG resulting into no liabilty of LH under Reg. 261/2004 for the cancellation of the original flight GRU-MUC.

Anyway, this was not sufficient to dismiss the claim as the LH flight GRU-MUC which plaintiff was rerouted to was delayed for more than 4 hrs resulting into a delayed arrival of considerably more than 3 hrs. Given ECJ decision C-402, 432/7 (Sturgeon/Condor and Böck/Air France), passengers suffering such delay had a similar claim for compensation like passengers of cancelled flights. The claim for compensation could therefore be based on the delay of the substitue flight.

Court of appeal will therefore have to render a new judgement which will have to consider whether the technical problems - which due to its conclusions had caused the delay - had been of a nature that would constitute "extraordinary circumstances" under art. 5 par. 3 of Reg. 261/2004.

Full text of BGH judgement Xa ZR 132/08 of Nov. 26, 2009 available in German here>>.