IFTTA News Update

• USA: DOT fines Virgin America for failing to make safety videos accessible to passengers with hearing impairments; 
• Australia: hotel not liable for security guard; 
• ECJ: the special VAT scheme for travel agents is not limited to sales of travel services to travellers;
• ECJ: Delayed rail passsengers are entitled to a partial price refund - even in cases of force majeure; 
• German Supreme Court: "bird strike" constitutes "extraordinary cicumstances"; 
• Germany: Supreme Court reconfirms compensation for missed connecting flight; 
• Canada: CTA orders Air Canada and Porter Airlines to revise domestic tariff provisions; 
• USA: “dirtiest hotel in America” not defamatory; 
• UK: Virgin Atlantic looses dispute over flat bed airline seat patent;
• USA: New Jersey judge dismisses hotel waitresses' gender discrimination claim; 
• Committee on Transport and Tourism of the European Parliament publishes Draft Report on the Commission's proposal for a new Air Passenger Rights Regulation; 
• Canada: CTA decides on overbooking - and finds European compensation system unreasonable;
• U.S. Court: American citizens have a constitutionally protected right to travel by air; 
• USA: DOT fines ticket agents for code-share disclosure violations; 
• Egypt: tourism minister sends message to travel industry via YouTube; 
• U.S. travel industry worried about anti-gay law in Russia; 
• USA: DOT releases guidance for Internet flight-search tools;
• German court requests ECJ preliminary ruling with regard to passport data;
• UK: OFT consults on proposed hotel booking commitments;
• IFTTA Law Review 2-2013 available online; 
• Canada: Federal Court of Appeal decides on exclusivity of Montreal Convention liabiliy rules;
• USA: equal rights for same-sex spouses in visa applications;
• German Supreme Court asks ECJ for interpretation of article 12 of Reg. 261/2004; 
• Recent EU Implementing Regulations in aviation matters; 
• Austrian Supreme Court: "bad weather" not enough to release air carrier from compensation for cancellation; 
• Italy: OTAs succeed against Ryanair over website access;
•  New Package Travel Directive; 
• Austrian Supreme Court: ticket office must disclose commission; 
• USA: DOT fines Delta for violating Denied Boarding Rules; 
• German court asks ECJ to clarify offsetting rules in Air Passenger Rights Regulation; 
• Tourist’s rights and duties in Belo Horizonte, Brazil; 
• USA: DOT fines ticket agent for violating code-share disclosure rules; 
• Austria: Supreme Court decides on travel insurance; 
• USA: Cruise industry adopts passenger bill of rights; 
• California: Delta wins in mobile app case; 
• UK: Civil Aviation Authority and Office of Fair Trading warn travel industry not to mislead consumers; 
• IFTTA Law Review 1-2013 available online; 
• German Supreme Court: air passengers entitled to compensation for missed connecting flight; 
• CJEU: "Sturgeon" judgement did not infringe the principle of separation of powers; 
• Germany: Supreme court decides on malperformance of Greenland cruise; 
• New German reference for ECJ preliminary ruling regarding Air Passenger Rights Regulation; 
• Swiss Ferderal Court: yacht charter including crew does not constitute a travel package; 
• Report on new tourism legislation in China; 
• USA: Metropolitan Museum of Art sued over admissions fee policy; 
• German court: lessor of holiday apartment must include costs of final cleaning into the advertised price; 
• USA: DOT fines Alitalia for deceptive practices; 
• EU: MEPs welcome Commission proposal on air passenger rights; 
• UK to implement new Air Passenger Duty; 
• USA: Appeals Court Revives Wheelchair Lawsuit vs. United Airlines;

IFTTA News - Recent Items

• USA: Federal Aviation Administration to reexamine passenger use of portable electronic devices on board aircraft;
•  CJEU: no distance contract required for consumer forum pursuant to Brussels I Regulation; 
• USA: court decides on passenger complaint against cruise ship operator; 
• USA: defamation lawsuit against TripAdvisor dismissed; 
• Bulgaria: new tourism legislation in parliament; 
• California: new law allows travel agents to sell travel insurance; 
• Australia: Indonesian national airline not immune from legal action by the Australian Competition and Consumer Commission; 
• USA: cruise ship forum-selection clause upheld;
• Germany: one more reference for ECJ preliminary ruling on Reg. (EC) 261/2004; 
• Florida: Costa Concordia lawsuit dismissed; 
• European Court of Justice decides in two denied boarding cases; 
• Austria: reference for ECJ preliminary ruling on Brussels I-Regulation; 
• Travel Agent Arbiter in US Digitizes all substantive decisions; 
• Single European Sky: 10 years on and still not delivering; 
• German Supreme Court: no air transport contract for passenger "Still Unknown"; 
• UK: Birmingham County Court decides in broken glass door case; 
• ECJ reconfirms "Sturgeon" decision; 
• Germany: Supreme Court decides on international jurisdiction with regard to letting of holiday homes; 
• ECJ decides on VAT taxation of in-house transport services provided by a travel agent; 
• Austrian Supreme Court: domain "hotel.eu" registered in bad faith; 
• German Supreme Court: no compensation from non-EU carrier for delay of connecting fligth departing from non-EU airport; 
• Germany: court decides that airline can ban OTA from access to its booking website; 
• CLIA: new safety policies for global cruise industry; 
• ECJ clarifies time limit for court actions under EU Air Passenger Rights Regulation; 
• ECJ: Rail passengers must be given information on main connecting services, whichever railway undertaking operates them; 
• ECJ decides on airlines' liability for checked baggage pursuant to the Montreal Convention; 
• U.S.-DOT: new rules for charter operators;
• Canada: class action over expiring loyalty program points; 
• USA: DOT fines Travelzoo for violation of Code-Share Disclosure Rules; 
• USA: Federal Trade Commission requires hotels to disclose all mandatory surcharges; 
• EU-Commission updates Airline Blacklist; 
• USA: DOT fines Vision Airlines for charter violations; 
• IFTTA Law Review 3-2012 available online; 
• California: Attorney General files Law Suit against Delta Airlines over mobile app; 
• German Supreme Court: consumer entitled to cancel cruise to the Caribbean because of ash cloud preventing him to fly; 
• USA: airlines to challenge DOT advertising rule before U. S. Supreme Court; 
• USA: DOT collected USD 3.6 M in fines for air passenger rule violations in 2012                            

Most recent IFTTA news posts

• ECJ Advocate General delivers opinion on rail passenger rights; 
• USA: Transportation Secretary queried on EU Emissions Trading System; 
• Civil Juries to Receive Guidance on Damages in Scotland; 
• Austria: Appelate court reverses judgement in missed connecting flight case; 
• Swedish Court asks ECJ for peliminary ruling regarding Montreal Convention and Reg. 261/2004; 
• ECJ Advocate General: distance contract not preconditional for consumer forum; 
• European Commission launches new European Consumer Agenda; 
• Austria: new legislation related to travel and tourism; 
• ECJ Advocate General proposes the Court to confirm its "Sturgeon"-Judgement; 
• EU Commission to hold another stakeholders' conference on the PTD revision; 
• Germany: Supreme Court to hear cases on airline personnel strikes as "extraordinary circumstances"; 
• Germany: Fiscal Court decides over VAT on hotel vouchers; 
• UK: Hotel owner fined in fire safety trial; 
• IHRB roundtable on Tourism Industry and Human Rights in London; 
• USA: DOT issues guidance on aviation consumer information-related requirements; 
• UK: OFT fines British Airways in fuel surcharges price-fixing case; 
• Canada: Supreme Court decides on jurisdiciton over foreign companies; 
• New proposals to address crimes at sea; 
• EU: Open Consultation on the European Tourism Label for Quality Systems Initiative; 
• EU: Public consultation on a review of EU passenger ship safety legislation; 
• EU Parliament gives green light to air passenger data deal with the US; 
• ECJ Advocate General Bot: compensation for denied boarding not limited to overbooking; 
• German Supreme Court decides on organizer's liability for changing flight departure time; 

  
   

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;
  

IFTTA Europe: position paper on PTD review online

In a working group chaired by Stephan Keiler and finalised in intensive discussions during the workshop held in Moscow this April, IFTTA Europe has elaborated a position paper on the review of the European Package Travel Directive which was presented to the European Commission at a stakeholders' workshop in Brussels.

This position paper which is focussing on improving legislative technique rather than on merely political issues is now available online 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

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.

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.

On the 20th Aniversary of the Package Tours Directive

Possibly, the Academic Event of the Year in the field of Travel and Tourism Law!

Registration here:
http://www.fe.ualg.pt/cidta/index.php

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.

Travel Law Conference in Portugal

Next 7 May, the University of the Algarve at Faro will held an International Travel Law Conference focused on The 20 Years of the European Package Travel Directive.

With some of the most renown Experts from Portugal, Spain, Austria, Germany and Ireland, but also from the USA and Brazil, as invited Speakers, this intends to be the most relevant Academic event on the current Anniversary of the Directive.

European Union: List on responses to public consultation on the PTD revision

European commission has published a list on responses to the public consultation on the PTD revision. The list which provides links to the respective responses covers both the responses to the questionnaire in the IPM-tool (online questionnaire) and e-mail contributions and is available here>>.

Austria: city trips offered in conncetion with a student exchange programme do not constitute a "package"

Defandant, an Austrian association organising international student exchanges including free accomodation with host families, was offering a 6 day city trip to New York for students participating in the exchange programme in the U.S. and a 3 day city trip to London for students participating in the exchange programme in U.K. The trips included accomodation, sightseeing and recreational activities as well as workshops to prepare the students for their stay in the respective country. The trips were offered at fair market value. Defandant also offered flight tickets in connection with said trips.

Plaintiff, an Austrian association to combat unfair competition, filed a law suit requiring defendant to cease and desist from

• pursuing travel business in connection with international student exchanges by offering city trips of several days duration, including transportation, accomodation and other tourist services (sightseeing) beyond the period of school attendance or stay with host families at an inclusive price and thus organising packages without tour organiser licence and/or insolvency coverage and/or
• pursuing travel business in connection with international student exchanges without travel agency licence by providing flight tickets from/to Austria and/or within country of destination.

Court of first instance (Handelsgericht Wien) and court of appeal (Oberlandesgericht Wien) both granted the claim.

Upon further appeal by defendant, Austrian Supreme Court (OGH)

• revised the judgements and dismissed the claim in regard to package tours
  
• repealed the judgements remanding the case to the court of first instance in regard to flight tickets.

Supreme court referred to ECJ judgement C-237/97 - AFS in which ECJ had held that Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours did not apply to travel

• comprising student exchanges of about six months' or a year's duration;
• the purpose of which is attendance by the student at an educational establishment in the host country in order to familiarise himself with its people and culture; and
• during which the student stays with a host family as if he were a member thereof free of charge.

The city trips offered could not be regarded in isolation from the exchange programmes as they were not offered separately but only in connection with same. As the trips also served the purpose to prepare the students for their stay in the host country and the style of living there, neither the exchange programmes themselves nor the city trips as parts of these programmes could be regarded "packages" in the meaning of Dir. 90/314/EEC.

Concerning the flight tickets, Supreme Court considered defendants objection that the tickets were organised and issued by a licenced travel agent. As there were no findings on who really organised and issued the tickets, in further proceedings court of first instance will have to take evidence in this regard. If it turned out that they were indeed organised and issued by a licenced travel agent, defendant could have a strong argument to have acted based on a justifyable legal opinion.

Full text of judgement 4 Ob 70/09m of Nov. 19, 2009 available in German here>>.

Finland: New logo for package travel

The Finnish Consumer Agency will launch a logo to be used on package travel documents and advertisements. The logo was designed closely with the travel industry in Finland and we hope it will be used on most of the package travels sold in Finland starting from this year. The logo should make it easier for traveler to know which packages are sold as package travels and which are not.

The logo will be revealed at the Travel fare 2010 which will start on the 21^st of January. With the logo the Consumer Agency will also promote the new tour organizer registry which you will find at www.valmismatka.fi (=package travel). The site will also open on the 21^st. Trade mark registration is pending for the logo.

Reported to IFTTA by Petteri Lehtonen

Austrian Supreme Court clarifies information duties in regard to entry requirements

Mr. F had booked a package tour to Morocco for himself, his wife and his eight year old son. At the time of booking he did not ask for entry requirements, only leafed through the pages of the tour organiser's brochure without looking for the respective information and didn't take the brochure along. The booking confirmation issued by the travel agent included the advice that information about entry requirements was avialable in the tour organizers brochure, at the website of the Austrian Ministry of Foreign Aiffairs at<www.reiseinformation.at> or at the embassy of the respective country.

At home he looked up the website of the Austrian Ministry of Foreign Aiffairs and found the information that to enter into Morocco for tourist purposes and a period not exceeding three month, Austrian citizens didn't need visa but were required a passport valid throughout their stay. In a guidebook he read that children either needed their own passport or had to be registered in a parent's passport.

At the airport he was told that his son would need his own passport and registration in the mother's passport (without foto) was not sufficient. F. decided to book a 'last minute' package tour to Mallorca. To show goodwill the tour organiser refunded 50 % of the travel price without accepting responsibility.

Back home F. assigned his claim to Austrian Federal Chamber of Labour which filed a law suit against the tour organiser.

Both first instance and second instance (Commercial Court Vienna) dismissed the claim: it was common knowledge that travelling to another country usually requires a passport. From the website of the Ministry of Foreign Aiffairs F. had learned about the requirements but ignored same. He therefore was responsible for contributory neglicence of 50 %. As the tour organiser had refunded 50 % there was no further claim.

Upon appeal of the Federal Chamber of Labour, Austrian Supreme Court held that tour organiser and travel agent had failed to fulfill their information duties: The advice given at the booking confimation was insufficient as the brochure was not handed out and the request to look at a certain website of the Ministry of Foreign Aiffairs or ask an embassy would impose a responsibility on the consumer which information duties of the tour organiser and the travel agent are aimed to avoid. There was no contributory negligence if F. had misunderstood the information given at the website of the Ministry of Foreign Aiffairs. Judgement was therefore given in favour of the claimant.

Supreme Court Judgement 6 Ob 142/09i of Sep.18, 2009 available in German here>>.

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.

Austrian Supreme Court: compensation for loss of holiday enjoyment does not depend on certain percentage of price reduction granted for malperformance

Contrary to settled jurisdiction of Commercial Court Vienna, Austrian Supreme Court (OGH) in a recently published decision held that compensation for loss of holiday enjoyment would not depend on a certain percentage of price reduction granted for malperformance. Commercial Court Vienna had usually only granted compensation for loss of holiday enjoyment in cases were malperformance of the package tour contract entitled to a price reduction of at least 50 percent. In two previous decisions Supreme Court had not referred to a certain percentage of price reduction but argued that compensation for loss of holiday enjoyment could only be granted if a (not to low) treshold of relevant malperfomance was exceeded.

The new decision now emphasizes the different purposes of compensation for loss of holiday enjoyment on the one hand and price reduction for malperformance on the other hand and favours a position that compensation for loss of holiday enjoyment was only excluded in bagatelle cases. A treshold of entitlement to 50 percent price reduction would limit compensation for loss of holiday enjoyment to cases of massive annoyance which would not be in line with art. 5 of the European Package Travel Directive.

Full text of OGH decision 6 Ob 231/08a of Sep. 18, 2009 available in German here>>.

Austria: no liability for depressive mood following massive flight delay

Plaintiff had booked a package tour to Turkey together with his wife and their two children. Because of technical problems, the outward flight to Turkey was delayed for 26 hrs. Plaintiff claimed that because of a depressive psychosis he was suffering from, the fligth delay had caused a depressive mood which had prevented him from enjoying his holidays. Even his wife had not been able to enjoy the holidays as she had to look after him. Both of them had hardly left the hotel room.

Back home in Austria he sued for compensation for loss of holiday enjoyment and some minor expenses he had had becuase of the flight delay.

Upon defendant's appeal Regional Court (Landesgericht Innsbruck) in judgement 2 R 170/09b of June 19, 2009 for the most part dismissed the claim: plaintiff had not mentioned his disease when booking the package tour and same had not been offered as being specifically suitable for mentally ill persons. The depressive mood therfore could not be regarded an adequate consequence of the flight delay. Plaintiff also had failed to explain why he needed specific care.

Action against Italy (ECJ Case C-121/09) re Art 7 PTD

Form of order sought a declaration that the Italian Republic has failed to fulfil its obligations under Article 7 of the ptd

Pleas in law and main arguments

1. By fixing a period of three months from the foreseen date of the end of travel for the purpose of making an application for action by the Guarantee Fund for package travel consumers, the Italian Republic has failed to fulfil its obligations under Article 7 of Directive 90/314.

2. Article 7 of Directive 90/314 provides that the organiser and/or retailer party to the contract is to provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency. According to the interpretation given in Community case-law, that provision imposes an obligation of result on the Member States, which entails affording the purchaser of package travel the right to effective protection against the risks of the organisers' insolvency and, in particular, the refunding of sums paid over and repatriation.

3. Next, Article 8 allows Member States to adopt more stringent provisions, but only if the latter offer greater consumer protection.

4. In the instant case, the object of the Italian legislation in question, according to information sent by the national authorities during the infringement procedure, is to ensure that the State budget has the opportunity of recovering sums paid to consumers and so of preserving the State's financial interests instead of ensuring greater protection for the purchasers of package travel.

5. Although the Commission understands that Italy has an interest in ensuring the proper balanced running of the Guarantee Fund, making it easier for the latter to bring an action for indemnity against the tour operator, it takes the view that such a measure, by imposing an absolute limit on the presentation of the application for action by the Fund, introduces a condition capable of depriving the consumer of the rights guaranteed by Directive 90/314.

6. It is true, as the Italian authorities maintain, that consumers may make their application for action by the Fund as soon as they are aware of circumstances that threaten to prevent the performance of the contract. However, in order to avail themselves of that opportunity they must be aware of those circumstances. Excluding those cases in which the travel organiser's insolvency is obvious, by reason of a declaration of insolvency, in most cases consumers do not know the exact financial situation of the operator. It is therefore reasonable that they should in the first place turn to the operator to obtain repayment of sums paid, sending it a letter, perhaps a reminder, and finally an order to pay. In that manner there is a risk that the period of three months fixed by Article 5 of Ministerial Decree No 349/1999 may already have long elapsed when the application is made for action by the Fund, with the result that consumers are deprived of the right to obtain the refund of the sums paid.

7. To remedy the infringement alleged in these proceedings, the Italian authorities declared, first, that they wished to extend from three to 12 months the period in which the application may be made and then that they intended to abolish it.

8. In addition, they published in the Official Gazette of the Italian Republic a communication informing potentially interested persons that, pending abolition of the period in question, for the purposes of ensuring consumer protection applications may be made to the Guarantee Fund at any time.

9. The Commission considers that such measures, while a laudable attempt to make good the consequences of the infringement complained of, do not do enough to eliminate the risk that purchasers of package travel may be deprived of their right to effective protection in the event of the organiser's insolvency.