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; 

  
   

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.

Belgium sued Switzerland before International Court of Justice

Belgium took Switzerland to the International Court of Justice in The Hague. The dispute concerning the interpretation and application of the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters has arisen out of the pursuit of parallel judicial proceedings in Belgium and Switzerland in respect of the civil and commercial dispute between the main shareholders in Sabena, the former Belgian airline now in bankruptcy.

Belgium claims that Swiss courts, including in particular the Federal Supreme Court, have refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention.

Source: ICJ press release 2009/36

German Supreme Court: No exclusive "forum rei sitae" in dispute over membership in timesharing association

Plaintiff, an Austrian timesharing association, sued a German member for annual maintenance fees which were due according to the bylaws. Courts of first and second instance (AG Oranienburg/Brandenburgisches OLG) dismissed the claim because of lacking international jurisdiction of German courts.

Upon further appeal of plaintiff, BGH held that membership in a timesharing association was not closely enough connected to the use of real estate property to constitute exclusive jurisdiction of the courts of the Member State in which the property is situated as provided by Art. 22 of the Brussels I Regulation (44/2001/EC): the member's rights and obligations would go beyond the mere right to use of some real estate property. Membership in teh association therefore could not be compared with a tenancy contract. Supreme Court assigned the court of second instance with further proceedings and decision.

Source: BGH press release re case VII ZR 119/08, available in German here>>.

Germany: German courts have jurisdiction over airlines in other member states in regard to unfair terms

In a decision dated July 9, 2009, German Supreme Court (BGH) held that German Courts have jurisdiction over over an airline in another member state in regard to a law suit filed by a consumer protection association to cease in order to interdict the use of unfair terms in General Conditions of Contract.

However, whereas with regard to such infringement of consumer interests, the law of that state applies in which due to the statement of claim collective consumer interestes have been affected, validity of such General Conditions of Contract was subject to the law governing the contract.

BGH decision Xa ZR 19/08 of July 9, 2009 available for download in German here>>.

European Court of Justice: court of place of departure or arrival compentent for compensation claims under Reg. 261/2004

In a judgement rendered today (Case C-204/08, Rehder v. Air Baltic), ECJ held that neither the location of the head office of the company operating the flight nor the place where the air transport contract was entered into is conclusive with regard to the choice of the court having jurisdiction in regard to claims for flat-rate compensation under Reg. (EC) 261/2004.

The place of the head office or the principal place of establishment of the airline concerned does not have the necessary close link to the contract. The operations and activities undertaken from that place, such as, in particular, the provision of an adequate aircraft and crew, are logistical and preparatory measures for the purpose of performing the contract relating to air transport and are not services the provision of which is linked to the actual content of the contract. The same is true with regard to the place where the contract for air transport is concluded and the place where the ticket is issued.

The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, the ‘places of departure and arrival’ having to be understood as those agreed in the contract of carriage in question, made with one sole airline which is the operating carrier.
Each of those two places has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, ensures the close connection between the contract and the court having jurisdiction. Consequently, a claim for compensation following the cancellation of a flight may be brought, as a matter of choice on the part of the passenger concerned, before the court having territorial jurisdiction over the place of departure or of arrival.

Source: ECJ press release No 62/09;
Full text of judgement avialable here>>.

European Court of Justice: national courts required to examine, of their own motion, unfairness of terms in consumer contracts

Upon reference for preliminary ruling instituted by a Hungarian District Court (Budaőrsi Városi Bíróság), ECJ held that the protection which Directive 93/13/EEC on unfair terms in consumer contracts confers on consumers extends to cases in which a consumer who has concluded with a seller or supplier a contract containing an unfair term fails to raise the unfairness of the term, whether because he is unaware of his rights or because he is deterred from enforcing them on account of the costs which judicial proceedings would involve.

As a consequence, the role of the national court in the area of consumer protection is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task, including when it is assessing whether it has territorial jurisdiction.

Where the national court considers such a clause to be unfair, it must not apply it, unless the consumer, after having been informed of it by the court, does not intend to assert its unfairness and non-binding status.

Source: ECJ press release 46/09; full text of judgement C-243/08 - Pannon GSM of June 4th, 2009 available here>>.

Austria: another reference for preliminary ruling in regard to jurisdiction and website advertising

Plaintiff, a hotel company, is running a hotel in Austria and a related website, the latter also indicating plaintiff's email address. Defendant, a German consumer, had made a room reservation through email. Plaintiff is claiming for payment of room rate and filed a law suit at the Austrian court where the contract was performed. Defendant pleaded there was no jurisdiction in Austria: due to him being a consumer the law suit should have been filed in Germany. The first instance court (BG St. Johann/Pongau) and the court of appeal (LG Salzburg) both dismissed the claim as in their view plaintiff via the website - even though not interactive (and thus not allowing online booking) - had directed commercial l activities to the Member State of the consumer's domicile and as a consequence the claim was subject to German jurisdiction solely.

Upon further appeal of plaintiff, Austrian Supreme Court (OGH) had sufficient doubts to institute a reference for preliminary ruling asking whether Art. 15 of Reg. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted in a way that a website accessable in the Member State of the consumer's domicile and advertising the entrepreneur's commercial activities would suffice to regard these commercial activities being directed to this member state.

OGH's reference for preliminary ruling 6 Ob 24/09m of March 26, 2009 is available for download in German here>>.

Austria: Reference for Preliminary Ruling on Reg. 44/2001 in regard to websites

On Nov. 6, 2008 Austrian Supreme Court (OGH) decided to file a reference for Preliminary Ruling to European Court of Justice in regard to interpretation of Reg. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, asking whether

• a journey on a cargo ship (including transport, overnight stays, some recreational facilities on board and the opprotunity for shore leaves) contituted a "contract which, for an inclusive price, provides for a combination of travel and accommodation" under Art. 15 sec 3, if so,
  
• an agent's website (not providing online booking) was a sufficient measure to be regarded as to "pursue commercial or professional activities in the Member State" (Art. 15 sec 1 lit. c).

The decision is available for downlaod in German language here>>.