Evaluation of Regulation 261/2004/EC

The final report (110 pages) as of February 2010 made by Steer Davies Gleave / London for the European Commission DG Transport can be found and downloaded here:

Report

German BGH: Airline bonus points

Germany Highest Court (BGH) ruled yesterday about the forfeiture of Airline bonus points (BGH 28.01.2010, Xa ZR 37/09):

Plaintiff was a participant of the flight awards program of the defendant airline. Under this program, travelers were able to collect a number of bonus points dependent on the route booked that could be redeemed within five years after the flight for bonus tickets. In the conditions of the program (CoP), the defendant retained the right to terminate the program at any time. In September 2007 defendant announced the ending of the rewards program by 31 October 2007 and admitted to the participants the option to transfer the points collected to another airline’s program. At the same time defendant terminated plaintiff’s participation contract and informed the plaintiff that he may book flights on the bases of the current CoP until 30 April 2008 only and which shall take place until 31 October 2008.

Plaintiff considered that defendant’s CoP shall be null and void in this regard and he claimed that he could still redeem the bonus points within five years after the flight date.

Both, the district court and the court of appeal dismissed the action and considered the CoP of the defendant still to be in force and binding.

The BGH did not follow this point of view. Defendant may terminate the flight rewards program at any time, however, in the case at hand the CoP providing a right to decrease the period of the initial validity of the bonus points of up to one tenth can not be justified.

This may cause difficulties for the defendant when booking appropriate bonus flights only six months in advance. Bonus points are a not a voluntary service provided by the defendant, since the bonus points are a kind of discount agreed which is applicable for future flights. The defendant is obliged to grant bonus points for flights that have taken place after termination the program, unless they have been booked prior to its termination on the basis of the CoP.

The offered transfer to another airline’s awards program is not an alternative, because it is not equivalent in every respect.

Prohibited items lists EU+USA

USA

1a.

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

List USA

1b.

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

3-1-1 Carry-Ons

EU

2a.

Code word: "Hermeticism"

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

2b.

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

Security rules

2c.

Initial plans to set legal limits at European level to the size of carry-on cabin baggage in airplanes have been withdrawn; likewise plans of the Commission to an end of the ban of liquids.

New Commission, Hearings, etc

1.

The full 'Timetable for the Hearings of the Commissioners designate', which will start on January 11th and last until 19th can be found here:

Timetable EP

2.

The new Commission 'Barroso II' and the respective responsibilities can be found here (in all official languages):

New Team

3.

Further information about the hearings can be found here:

Hearings

4.

once again:

The Consumer Contract and Marketing Law SANCO B.2 moves to DG JLS from DG Health and Consumers (SANCO) as part of the Justice, Fundamental Rights and Citizenship portfolio

Nevertheless the new responsible commissioner Viviane Reding will not be heard by the IMCO but only by LIBE, JURI and FEMM committees

5.

Information about the several committees, it's schedules and documents can be found here:

EP Committees

Compensation in the Event of Airline Bankruptcy

Motion for a Resolution by European Parliament

Mathieu Grosch, Artur Zasada on behalf of the PPE Group

Saïd El Khadraoui on behalf of the S&D Group

Dirk Sterckx on behalf of the ALDE Group

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

B7-0153/2009

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

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

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

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

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

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

– having regard to Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bust airlines

MEPs back compensation for grounded passengers:

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

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

Transport Chair Brian Simpson speaks of "clear loophole"

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

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

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

Transport Commissioner Tajani backs compensation

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

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

Source: 20091002STO61739

Addendum: Links

You can find the press release in German over here (The judgement has not been published yet!):

and a translation in English over here:

Airlines can not claim fees of 50 eur for a reversal booking operation

Germans Highest Court (Bundesgerichsthof) decided yesterday on the complaint of a consumer organisation (Verbraucherzentrale Nordrhein-Westfalen)against the airline Germanwings, with the omission of the use of a clause within general terms and conditions.

Citation: BGH 17.09.2009, Xa ZR 40/08

The "charging order" ("Entgeltordnung") stated, inter alia:

"Fee for a reversal booking operation is: € 50.00 per booking"

As Germanwings tried to get the ticket prize by direct debiting but due to the lack of balance of the passenger's account, the debiting failed.

You can find the press release in German over here (The judgement has not been published yet!):

and a translation in English over here:

Kind regards from Cologne!

Stephan

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

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

Case C-69/09 (Walz/Clickair)

Question referred:

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

Single European Sky II

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

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

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

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

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

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

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

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

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

corr: ECJ-Judgment re cabin baggage

Case C‑345/06 (Gottfried Heinrich), Judgment as of 10. March 2009

Preliminary ruling in the course of an action brought by Mr Heinrich against the Austrian authorities after they had refused him access on board an aeroplane on the ground that he was carrying tennis racquets in his cabin baggage, those objects being regarded by those authorities as articles prohibited by an unpublished (!) annex to a civil aviation security regulation 2320/2002/EC:

The annex to Commission Regulation (EC) No 622/2003 of 4 April 2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Commission Regulation (EC) No 68/2004 of 15 January 2004, which was not published in the Official Journal of the European Union, has no binding force in so far as it seeks to impose obligations on individuals.

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

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

Case C-525/08

Questions referred

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

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

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

IATA: air travel declining at alarming pace

According to the International Air Transport Association (IATA) the global aviation industry is facing its largest drop in passengers since the outbreak of Severe Acute Respiratory Syndrome (SARS) in 2003. Even the good news that the oil price has fallen to half its July peak was not enough to offset the impact of the drop in demand.

Global international traffic statistics for September 2008 show passenger traffic declined 2.9 percent while cargo traffic dropped 7.7 percent compared to the same month in 2007.

IATA favors less regulation of international air traffic as the most important factor in staving off further financial calamity in the industry.

Source: eTurboNews; find article here>>.

"'External costs' in transport: Commission prepares the ground for efficient and fair pricing of transport services"

According to the EU Press Room, "The European Commission has released a comprehensive compilation of existing studies on external costs in the transport sector. This handbook, jointly prepared by several transport research institutes, summarises the state of the art as regards the valuation of external costs. The Commission intends to make use of the handbook as one element which prepares the communication on the internalisation of external costs for all modes of transport that is due in June 2008 and a proposal to revise the directive on the charging of heavy goods vehicles."

This Press Release is available in full text.