Lockerbie: Part 2 - Timeline

Pan Am Flight 103 was blown up 31000 feet above the Scottish border town of Lockerbie on 21 December 1988. There were 259 people on board, including the crew, all of whom were killed together with 11 people on the ground.

Two Libyans were indicted on 13 November 1991: Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhimah. The case was discussed by Lord Fraser, the Lord Advocate of Scotland at the time, at the IFTTA worldwide congress in Edinburgh that year.

On 19 March 1999, Nelson Mandela flew to Tripoli to persuade Colonel Qaddafi to hand over the suspects to be tried by the High Court of Justiciary, a Scottish court, sitting in Camp Zeist in the Netherlands. The trial opened on 3 May 2000 and on 31 January 2001, al-Megrahi was found guilty of homicide and was sentenced to a minimum of 20 years imprisonment. His co-accused was acquitted and returned home. The Scottish Court of Criminal Appeal, comprising 5 judges, rejected his appeal on 14 March 2002.

Lawyers acting for the victims secured an agreement from the Libyan authorities to set up a compensation fund of $2.7bn on 14 August 2003.

On 23 September 2003, al-Megrahi launched a further appeal with the Scottish Criminal Cases Review Commission (SCCRC). This is an independent body responsible for investigating possible miscarriages of justice. Meanwhile, a change in legislation, arising from the implications of the Human Rights Act, required that prisoners are entitled to know the actual tariff of their sentence rather than "a minimum of...". In al-Megrahi's case, this was then fixed at 27 years. The Lord Advocate appealed on grounds that this was too lenient. Al-Megrahi counter-claimed. However, these appeals were put on hold to await the outcome of the SCCRC's findings.

Meanwhile, the UK Government struck a deal with the Libyan Government on prisoner exchanges on 7 June 2008. It insisted that this would not cover al-Megrahi.

On 28 June 2008, the SCCRC recommended that al-Megrahi be granted a new appeal against his conviction. The grounds of referral they gave for appeal was on the basis of:
the reasonableness of the trial court's verdict. In particular, there were serious questions in relation to evidence from a vital Maltese witness.
new evidence that had not been heard at the original trial.
additional evidence not made available to the defence.
other evidence not made available to the defence. Again this mainly related to the Maltese witness.

Al-Megrahi's lawyers asked the Scottish Court of Criminal Appeal to examine claims that vital secret documents had been withheld from his defence team. A key document had been issued by a foreign government to the Scottish prosecutors before al-Megrahi's trial but had not been made available to the defence. The UK Government, through its Advocate General, argued that disclosure of the document would harm the UK's security interests and its international relations. The appeal court accepted that it should not be disclosed on 7 March 2008. His lawyers planned to further appeal on the matter.

On 21 October 2008, his defence lawyers revealed that al-Megrahi had an advanced state of prostate cancer and on 30 October made an appeal for bail pending his appeal. This was rejected by the court on 14 November 2008.

In his second appeal, his counsel claimed that the evidence against him was "wholly circumstantial". The appeal was expected to last into 2010, partly prolonged by the limited amount of time each day that al-Megrahi could follow the proceedings due to his cancer.

In May, the Libyan authorities requested that the Scottish Government release him pending the outcome of his appeal. however, under Scots Law, no release was possible in the case of a person convicted of a crime if judicial proceedings were still active. Thus, al-Megrahi was required to abandon his appeal before consideration for release on compassionate grounds.

On 20 August 2009, al-Megrahi was released by the Scottish Justice Minister, Kenny MacAskill, on compassionate grounds i.e. that of his impending death from prostate cancer.

"Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days," he said. "But that alone is not a reason for us to deny compassion to him and his family in his final days….Our justice system demands that judgement be imposed, but compassion be available. For these reasons and these reasons alone, it is my decision that Mr Mr Abdelbaset Ali Mohmed Al-Megrahi, convicted in 2001 for the Lockerbie bombing, now terminally ill with prostate cancer, be released on compassionate grounds and be allowed to return to Libya to die."

John

Austria: reference for preliminray ruling in regard to the operation of a city tours coach service

The applicant company applied for a business permit to run a city tours coach service from fixed stopping points in accordance with a fixed time table. Municipality of Vienna at first instance denied the permit on the grounds that the service would economically endanger a competing company running a similar service and applicant had no registered office in Austria.

Upon appeal of the applicant, the "Unabhängiger Verwaltungssenat Wien" filed a reference for premliminary ruling to the ECJ, asking

1) whether it was compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport, where fixed stopping points are called at regularly in accordance with a timetable, to lay down the following as conditions for such authorisation:

• that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority before commencing operation of the service and in particular at the time the licence is granted;
• that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority at the latest from the time operation of the service commences?

2) whether it was compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport where fixed stops are called at regularly in accordance with a timetable, to provide that authorisation is to be refused where, if the motor vehicle service applied for commences, the revenues of a competing undertaking running on a partially or entirely identical short route will be so substantially reduced by this service that the continued running of the service operated by the competing undertaking will no longer be economically viable?

Given ECJ's established jurisdiction, I wonder how there can be doubt that the requirement of a registred office in Austria infringes freedom of services.

The refrence for preliminary ruling (case C-338/09 - Yellow Cab) is available for download here>>.

Update on the collapse of Scottish Airline, flyGlobespan

flyGlobespan was Scotland’s biggest airline, based in Edinburgh. It employed about 800 staff and carried more than 1.5 million passengers a year on 12000 flights. On its’ collapse, arrangements were made for the repatriation of 1100 passengers stranded abroad. These were passengers that had a flight with flyGlobespan as part of a package travel arrangement and were therefore protected on the airline’s insolvency. There were a further 3400 passengers abroad that were not protected as they had booked directly with the airline on a flight only basis. An additional 27000 consumers that had booked flights as part of a package to take place in the future were also protected but 90000 who had paid for future flight-only arrangements were not. However, many of these latter were protected under the Consumer Credit Act if they paid for their flights using a credit card. This protection does not apply to those who paid with a bank debit card unless the terms and conditions issued by the bank provided otherwise. Likewise, some charge cards, such as American Express, provide protection in certain circumstances.

The problem is that some members of the public do not understand the difference, in this context, between a credit card, debit card and a charge card, nor why package travellers are protected and flight-only consumers are not.

Many airlines use a different company to handle their credit card bookings and this was the case with flyGlobespan, which used E-Clear. These companies need to insure against claims being made on the default of an airline and this became increasingly expensive during 2008- 9. In order to reduce their risk and, hence, insurance premiums, some tended to withhold payments to the airlines until the flights had already taken place. This was so in the case of E-Clear.

The Finance Secretary of the Scottish Government, John Swinney, stated that flyGlobespan was badly let down by the fact that E-Clear, handling bookings on their behalf, had not paid them money that they were due: “That is the inescapable commercial reality of what has been faced here." Mr Swinney added: "The key issue is about making sure that, in the private market, companies honour their commitments…Here E-Clear have held on to money that should have been passed on the flyGlobespan and as a consequence employees of flyGlobespan and members of the travelling public are now experiencing real difficulties”.

The insurance issue might explain why E-Clear was holding on to flyGlobespan's funds (£14 million) received for flights yet to take place but it doesn't explain why it was withholding as much as £20m for tickets that had been used - transactions which no longer carried any risk.

The Scottish administrators of flyGlobespan have raised a legal action against E-Clear on Monday. It is also understood that the Slovakian airline, SkyEurope has also raised a claim for £13m for funds withheld by E-Clear when it went into liquidation in 2008. Go Travel Direct, based in Canada, has likewise started a claim for £300,000 it says that E-Clear owes them.

Brazil: One of every ten flights delayed over 30 minutes in 2009

Approximately one out of ten flights that took off from airports in Brazil in 2009 was delayed over 30 minutes (limit considered acceptable by the Brazilian Airport Infrastructure - Infraero). Despite the still high average of 11%, the National Civil Aviation Agency (ANAC) said the airline industry in the country increased its efficiency, whereas in 2008 the percentage was 17.5% and in 2007, 28.6 %.

Moreover, according to ANAC projection based on data from Infraero by the end of November, more than 126 million departures and landings must have been made in 2009, a number well above the 113.3 million recorded in 2008 and 110 6 million in 2007. Only until the beginning of December last year had already been made 115 million arrivals and departures.

According to the director president of ANAC, Solange Vieira, increased efficiency is due to several actions taken during the year. "Increased competition, since the largest number of companies and airports available, led to an improvement in service. The Aeroporto Santos Dumont (RJ) had a significant effect on this process, including releasing the Galleon for new flights. Moreover, ANAC taken steps to distribute the flights outside of peak hours and tailor the operational capacity of Guarulhos (SP), "he said in a statement.

According to ANAC, passengers better informed about their rights and obligations also contributed to the normal at airports. Among the largest airlines operating in the country, the monthly average of flights delayed more than 30 minutes in 2009 was: Webjet (13.1%), Gol / Varig (10.1%), TAM (10%), Ocean Air (8.3%) and Blue (8.1%).

Danilo M

Agency Brazil

Brasilia


Forwarded to IFTTA by Ronaldo Armond

Kenya: New regulatory regime for hospitality sector

To ensure quality and compliance with relevant other laws and regulations and promoting excellence in the hospitality sector, all new hotel, resort, and lodge projects in Kenya require to be licensed first, before commencing any construction, by a newly-inaugurated Hotel and Restaurant Authority.

The authority will also embark on a nationwide exercise of grading and classification, using the East African Community regulatory regime now in place for all the five member states.

Source: eTurboNews; find article here>>.

USA: Restriction on visas to HIV-positive tourists lifted

The Department of Health and Human Services and the Centers for Disease Control and Prevention removed HIV infection from the list of diseases that prevent non-U.S. citizens from entering the country. The new regulation removes required testing for HIV infection from the U.S. immigration medical screening process and eliminates the need for a waiver for entry into the United States.Visas issued under the new regulation will not publicly identify any traveler who is positive for HIV.

Source: eTurboNews; find article here>>.

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.

USA: extra checkpoint screening of airline passengers from 14 countries

Due to a new directive of the Transportation Security Administration airline passengers flying to the U.S. from 14 countries with terrorism problems will face extra checkpoint screening at overseas airports. The countries include Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudia Arabia, Somalia and Yemen as well as Cuba, Iran, Sudan and Syria.

The new directive will be in place indefinitely and replaces an emergency order the TSA imposed after a Nigerian passenger tried to blow up a Northwest Airlines flight near Detroit on Dec. 25.

Source: USA Today; find article here>> and TSA statement here>>.

USA: another law suit filed by former YTB affiliates

A number of former affiliates filed a third version of their complaint against YTB in the U.S. District Court for Southern Illinois. The former YTB referring travel agents (RTAs) have charged they were induced to join an illegal pyramid scheme. They claim current and former affiliates have suffered damages of more than $100 million. In two cases brought previously they have not convinced Judge Patrick Murphy that the charges can be based on a consumer protection law because the case involves business-to-business dealings.

Source: Travel Weekly; find article here>>.

Also see previous postings of June 10, 2009 and May 19, 2009.

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

UN Sanctions against Eritrea

In a 13-0-1 vote the UN Security Council opted for sanctions aganinst Eritrea until such time that the country "ceases arming, training, and equipping armed groups and their members including al-Shabab." Regime leaders and collaborating businesses are now also subject to travel bans, and a freeze of assets is reportedly underway for both individuals, as well as companies.

Source: eTurboNews; find article here>>.

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

San Francisco: Sea Lions abandon Pier 39

San Francisco Bay’s famous herd of sea lions has mysteriously begun vanishing as quickly and inexplicably as they appeared, leaving behind throngs of disappointed tourists and puzzled marine biologists. Marine experts in the region speculate that the sea lions came in droves because of an abundance of food.

Source: eTurboNews; find article here>>.

European Union: Parliamentary hearing of Commissioner-Designate Dalli

The parliamentary hearing of the Commissioner-Designate for Health and Consumer Policy, John Dalli, is to take place on 14 January at 13.00hrs under the lead of the Committee on the Environment, Public Health and Food Safety, with MEPs from the Internal Market and Consumer Protection and Agriculture and Rural Development Committees also attending.

Source: European Health & Consumer Voice; find more information here>>.

China Says It Has World's Fastest Train

China has unveiled what it says is the world's fastest rail link in the world, a train connecting the cities of Guangzhou and Wuhan, with an average speed of 217 miles per hour. The super-high-speed train reduces the 1,069 km journey to a three hour ride and cuts the previous journey time by more than seven and a half hours. Work on the project began in 2005 as part of plans to expand a high-speed network aimed at eventually linking the business hub of Guangzhou with Beijing. Test runs for the service began earlier in December and the link officially went into service last Saturday. Beijing has an ambitious rail development program aimed at increasing the national network from the current 86,000 km to 120,000km, making it the most extensive rail system outside the US.
ARTA E-NEWS FOR December 29, 2009 www.artaonline.com

USA: Internet travel agents sue New York City over hotel room occupancy tax

A group of major Internet travel firms as well as the American Society of Travel Agents (ASTA) and the U.S. Tour Operators Association (USTOA) filed a law suit against New York City to stop the extension of a hotel tax on their clients. They allege that the law extending the city's hotel room occupancy tax to "third-party travel intermediaries" is "unconstitutional and illegal" as the city "has no inherent power to tax."

Source: marketwatch.com, find article here>>.

India faces protests against tigthened visa rules

Indian government in Delhi introduced rules barring tourists from returning to the country within two months of any visit. Both, U.K. and the US have lodged a diplomatic protest.

Source: eTurboNews; find article here>>.

USA: new DOT rule limits airline tarmac delays

Under a new rule the U.S. Department of Transportation will limit airline tarmac delays to three hours after which U.S. airlines must allow passengers to deplane. Airlines also must provide adequate food and water for passengers within two hours of a plane being delayed on a tarmac and maintain operable lavatories and must provide medical attention when necessary. .

The new rule will become effective in April and applies to domestic flights only. The rule may be obtained on the Internet at www.regulations.gov, docket DOT-OST-2007-0022.

Source: DOT press release; find full text here>>.

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: No Supreme Court decision on compensation for discontinued flight

Plaintiffs had booked a flight from Frankfurt to the Maldives with a stopover in the United Arab Emirates. When they landed in the Emirates the flight was discontinued and they were re-routed and arrived at the Maldives with a delay of more than 30 hrs. The claimed for compensation under Reg. 261/2004. As both first instance (AG Rüsselsheim) and second instance (LG Darmstadt) dismissed the claim they filed a further appeal to German Supreme Court (BGH) in which they explicitly referred to the ECJ's most recent decision in cases C-402/07 - Sturgeon/Condor and C-432/07 - Böck u. Lepuschitz/Air France (see related news item).

However, before scheduled date of Supreme Court's decison the claim was settled!

Source: BGH press release re cases Xa ZR 72/09 and 86/09; text available in German here>>.

UK: High Court blocks British Airways strike

The UK High Court has blocked a 12-day Christmas walkout by British Airways cabin crew after ruling that the strike ballot was illegal. The high court granted BA's request for an injunction against the strike after around 900 cabin crew were balloted despite taking voluntary redundancy. Mrs Justice Cox ruled that the balloting error breached the 1992 Trade Union Act.

The decision means nearly a million BA passengers can complete their journeys as planned over Christmas unless there are wildcat walkouts by the 12,700 cabin crew who supported industrial action.

Source: eTurboNews; find article here>>.

Scotland: airline bankruptcy leaves thousands of passengers stranded

The demise of Scottish carrier Flyglobespan leaves about 4,000 passengers stranded abroad. Around 1,300 people were due to fly tomorrow. The accounting firm brought in to take control of the failed airline, told passengers to stay at home and warned that the Civil Aviation Authority was only responsible for financially bailing out 1,000 people who have booked package holidays.

Source: The Guardian; find article here>>.

UNWTO: New Travel & Tourism Climate Initiative launched in Copenhagen

"Live the Deal", an innovative, global campaign to help travel companies and destinations respond to Climate Change, reduce their carbon footprint and move to the Green Economy, was launched this week during the Copenhagen Climate Summit. Announcing the new initiative, long time green tourism campaigner Geoffrey Lipman UNWTO Assistant Secretary-General said: “What Copenhagen represents is a new commitment by the world community towards sustainable low carbon growth patterns. The targets and mitigation actions that countries develop and negotiate through this process will be a new base for travel industry action. What we are providing is a very simple way to get behind the evolving government initiatives, to keep pace with changing patterns and to demonstrate that our sector is acting, not simply talking.” He added ”We should not be ashamed to promote the growth of smart travel – clean green, ethical and quality - it’s the lifeblood of trade, commerce and human connection”.

“Live the Deal” follows the pattern established in the UN led Copenhagen Seal the Deal campaign by its single minded focus, its simplicity and its broad based engagement goals. It will seek to encourage the sector directly and through representative organizations.

Source: UNWTO press release; find full text here>>.

ITB World Travel Trends Report predicts worldwide increase in airline ticket prices

According to the ITB World Travel Trends Report, commissioned by the world’s leading travel trade show and compiled by the consultancy IPK International, a short- to mid-term rise in the price of airline tickets is to be expected worldwide. The ITB World Travel Trends Report states that in order to become profitable again, airlines will have to significantly adjust their ticket prices. The findings are based on the assessments of 60 tourism experts from 30 countries.

Source: ForImmediateRelease.net; find article here>>.

ITB World Travel Trends Report 2009 available for download as pdf here>>.

Caribbean: quiet hurricane season

The six-month hurricane season that ended Nov. 30 saw only nine named storms formed in the Atlantic and for the first time in three years, no hurricane struck the U.S. mainland or a Caribbean island.

Source: Travel Weekly; find article here>>.

USA: DOT ruling against airline pricing mistakes

British Airways last month published an unusually low fare from the United States to India. The base was $40 round trip. Although BA doesn't include its $370 fuel surcharge in that amount but passes it on as a "tax" rather than as part of the ticket price, and the actual taxes were an additional $150, the total $560 was still several hundred dollars less than a regular advance-purchase fare to India.

The fare stayed on the market only for one day, but that was enough time for hundreds of tickets to be purchased. Three days later, BA unilaterally canceled all those tickets because a mistake had been made.

The U.S. Department of Transportation (DOT) said it conducted a full investigation over the cause, magnitude and consequences of this incident and determined that BA's unilateral cancellation had caused financial harm to a large number of consumers.

The Department ruled that British Airways should compensate affected consumers - which BA agreed to do - but refused to force British Airways to restore the canceled tickets.

Sources: The Washington Times; DOT press release 183-09

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>>.

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.

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.

USA: Delta denies infringement of data privacy

In proceedings concerning a lawsuit accusing the airline of hacking into a computer of a passenger advocacy organization (see previous post), Delta has asked the federal court to dismiss the claim on the grounds that the plaintiff, FlyersRights.org founder Kate Hanni, had made the allegedly stolen emails public by forwarding them to an industry discussion group.

The lawsuit claims that Delta used stolen email to harm FlyersRights.org by derailing the group’s efforts to push through legislation aimed at limiting airplane tarmac delays to three hours.

Source: Travel Weekly; find article here>>.

Australia: no exemption of Age Discrimination Act for cruise line

Australia's largest pleasure cruise company, Carnival Australia, a subsidiary of global Carnival Corp., demands that young adults aged 18 to 21 are accompanied by a parent or guardian if they book one of a range of South Pacific cruises from Australian ports from November through January. The policy aims to exclude large groups of students who celebrate the end of the school or college year usually by excessive drinking.

A rejected passenger lodged an age discrimination complaint with the Australian Human Rights Commission which Carnival responded by asking for an exemption from its so-called under-21 policy of the Age Discrimination Act.

The commission, however, rejected the exemption application as such exemption would undermine the law's aim of eliminating age discrimination in the provision of goods and services.

Source: msnbc; find article here>>.

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

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

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

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

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

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

Judgement available for download here>>.

European court of Justice: Sardinian regional tax on touristic stopovers infringes Community law

Legislation adopted by the Region of Sardinia introduced, as from 2006, a regional tax on stopovers for tourist purposes by aircraft used for the private transport of persons or by pleasure boats over fourteen metres in length. The tax is payable by natural or legal persons who have their tax domicile outside the territory of the region. With regard to the pleasure boats, the tax applies to undertakings which carry out transport operations for remuneration or free of charge. With regard to the aircraft, on the other hand, the tax is payable only by undertakings which carry out air transport operations free of charge, for reasons connected with their business activities.

In the course of two actions brought against that law by the Italian President of the Council of Ministers, the Italian Constitutional Court made its first reference to the Court of Justice for a preliminary ruling.

In his judgment in Case C-169/08 the Court considered that the difference between residents and non-residents constituted a restriction on freedom of movement since there was no objective difference in their situations which could justify the difference in treatment as between the various categories of taxpayer.

The fact that taxpayers in Sardinia contribute, through income tax, to the activities of the region, even those for the protection of the environment, was irrelevant since the tax on stopovers was not of the same nature and did not pursue the same objectives as the other taxes paid by Sardinian taxpayers.

According to the Court, it is common ground that the tax concerns trade between Member States (since it applies to services provided in connection with stopovers by aircraft and recreational craft and concerns intra-Community trade) and it may distort competition (since it grants an economic advantage to operators established in Sardinia). In addition, the regional tax law which grants certain undertakings exclusion from the obligation to pay the tax in question involves a renunciation by the region of tax revenue which it would normally have received. Lastly, the tax confers a selective fiscal advantage only on enterprises established on the territory of the region, as compared with undertakings which do not have their tax domicile there, since those two categories of undertaking are in a comparable factual and legal situation when they receive stopover services in Sardinia.

Source: ECJ press release 101/09 of Nov. 17, 2009

Austria: Supreme Court decides on information duties with regard to hurricane hazard

Plaintiff and his fiancé wanted to go on vacation in late October 2005 and asked their travel agency for a destination of fair weather. The agency inter alia offered Yucatan/Mexico which they chose and booked a package tour for Oct. 16 to 30. When they left for Yucatan on Oct. 16, a tropical depression had developed in the Carribean which on Oct. 18 turned into hurricane Wilma. Plaintiff and his fiancé enjoyed their vacations until Oct. 19 when heavy wind came up and the hotel staff began to nail up windows. From Oct. 20 they were asked not to leave their room. The storm calmed down on Oct. 23 and left much of the neighbourhood of the hotel and most of the surrounding infrastrcuture destroyed. Plaintiff and his fiancé were flown home on Oct. 27.

They sued for refund of the full package price, compensation for loss of holiday enjoyment and some minor damages: the tour operator had been at fault because of failing to warn them from the upcoming hurricane. The tour operator argued the general hazard of hurricanes in the Carribean was a fact of general knowledge and hurricane Wilma had only developed after they had arrived.

Supreme Court upheld the decision of the court of appeal that plantiff was entitled to a partly refund of the package price (except for the first three days) as well as to compensation for loss of holiday enjoyment and further damages. Even though the general hazard of hurricanes in the Carribean indeed was a fact of general knowledge and the development of hurricane Wilam and its track not foreseeable at the time of booking nor at the time of departure, the tour operator should have informed about the duration of the hurricane season when hurricanes are more likely.

Although it was only ascertained that plaintiff had booked for fair weather, Supreme Court concluded that it was likely that he would have booked another destination if properly informed. Even though plaintiff and his fiancé neither would have enjoyed the particular package tour if information had been given they probably would have enjoyed another one of equal shape which therefore also constiuted loss of holiday enjoyment.

Supreme Court again opposed a conceptional formula to detetermine immaterial damages. Courts rather had to assess these damages due to the cicumstances of each individual case.

Judgement 4 Ob 130/09k of Sep. 29, 2009 is not published yet.

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>>.

Florida: law suit against Expedia and Orbitz over hotel taxes

Florida’s Office of Attorney General has sued Expedia and Orbitz, the leading internet travel companies, claiming that these companies violated state law by failing to remit the appropriate amount of taxes on hotel room rentals. The lawsuit states that while Expedia and Orbitz have been collecting taxes from consumers, they have only been remitting a portion on the taxes based on the wholesale rate the online sellers get from hotels, not the retail rate consumers pay.

Source: Attorney General Bill McCollum News Release of Nov. 3, 2009

Florida: Injunction Sought Against Timeshare Resale Companies

Attorney General Bill McCollum on Nov. 2nd announced that his office has filed a lawsuit and has requested an emergency injunction against two related South Florida timeshare resale marketing companies. Universal Marketing Solutions, Creative Vacation Solutions, and owner/manager Jennifer Kirk allegedly collected over $4 million in marketing fees on a monthly basis, but rarely if ever marketed, advertised, or facilitated sales for the timeshare owners who had contracts with the companies. The injunction requests the companies’ cease doing any timeshare business while the lawsuit is pending.

In a statement released Nov. 3rd, the American Resort Development Association (ARDA) welcomed the move to seek an emergency injunction: Although there were many reputable companies that provided resale services, the largely unregulated secondary market also included some that used unscrupulous tactics to take advantage of owners who may wish to sell their timeshares.

Sources: Attorney General Bill McCollum News Release, ARDA press release.

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>>.

Greece: reference for preliminary ruling concerning hotel TV

Greek court "Arios Pagos" has filed a reference for preliminary ruling on wether the mere installation of television sets by a hotelier in hotel rooms and their connection to the central antenna installed in the hotel, without any other action, intermediation or intervention by the hotelier, constituted communication of the work to the public within the meaning of Article 3(1) of Directive 2001/29/EC, and, in particular, in accordance with the aforementioned judgment of the Court of Justice of 7 December 2006 in Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, and whether this would involve the distribution of a signal, via television sets, to customers who stay in the hotel rooms, by means of the technical intervention of the hotelier.

ECJ Case 136/09 - Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v. Divani Acropolis Hotel and Tourism AE;
reference published in Official Journal of the European Union of 20.06.2009.

Brazil: 2007 Sao Paulo's crash caused by pilot error?

A military investigation into Brazil's deadliest air disaster reached no conclusion on blame, but officials said Saturday that pilot error rather than mechanical failure was the more likely cause.

A separate police investigation into the 2007 jetliner crash that killed 199 people blamed government and airline officials and recommended charges against 10 people — a case that is still tied up in courts.

Source: eTurboNews; full article by Bradley Brooks available here>>.

Space hotel to open in 2012

A first hotel in space will be open for business and accepting tourists by 2012 after an anonymous billionaire space enthusiast granted $3billion to finance the project. The Space Resort will charge 3 million euros for a three-night stay and eight-week training course on a tropical island before the trip.

Source: dailymail.co.uk; find article here>>.

European Union: Commissioner Kuneva welcomes new report on airline charges

The report, which will be presented by the Norwegian Ombudsman Bjørn Erik Thon, is the result of a year long investigation by 11 national enforcement authorities (led by Norway). The in-depth study found that airlines are frequently including parts of their basic operational costs (handling charges, fuel charges, booking fees) into what appears to be obligatory "taxes and charges" – this can mislead consumers and falsely attract consumers to buying seemingly cheaper tickets.

The study covered 281 flights, 24 leading European airlines, as well as 34 major European airports.
The results of the investigation will feed into the industry agreement currently being elaborated following the EU enforcement sweep on airline ticket selling websites (see IP/09/783).

Source: Press release by Commissioner Kuneva; report on airline charges available here>>.

USA: HIV travel ban terminated

The U.S. federal government is removing HIV/AIDS from the list of communicable diseases that can keep a foreign visitor or immigrant from getting a visa or entering the U.S. Termination of the ban which has been in effect since 1987 will become effective by Jan. 4, 2010.

Source: Travel Weekly; find article here>>.

International Tourism Law Seminar @ Beja (Portugal)

Next Friday, November 6th, the Polytechnic of Beja, in Portugal, will hold an International Seminar on Tourism Law.

Organized with the support of the University of the Balearic Island, in Spain, the event will be focused on the regulation of hospitality, in Portugal and Spain.

The event counts with presentations by some of the most known lecturers of Portugal and Spain, namely Professors:
José Ángel Torres Lana, María Nélida Tur Faúndez, Antonia Paniza Fullana and María Belén Ferrer Tapia, from the University of the Balearic Islands, Spain;
Verónica San Julián, from the University of Navarre, Spain;
Virgílio Machado, João Almeida Vidal and Afonso Ribeiro Café, from the University of the Algarve, Spain;
Manuel David Masseno, from the Polytechnic of Beja.

SIDETUR - the IberoAmerican Society for Tourism Law is supporting this Seminar.

USA: Lawsuit against pilots dismissed

Continental Airlines alleged that nine pilots obtained "sham" divorces from their spouses for the purpose of withdrawing pension funds early. However, US District Judge Gray H. Miller held that ERISA, the federal statute governing pensions, does not authorize corporate human resources departments to second-guess the validity of a lawful family court divorce judgments. The pilots have countersued for allegedly illegal invasions of privacy, including humiliating and intrusive questioning about their domestic arrangements, medical conditions, intimate relationships, and financial circumstances.

Source: eTurboNews; find article here>>.

European Union: European Consumer Consultive Group publishes opinion on Commission Proposal for a Directive on Consumer Rights

The European Consumer Consultative Group (ECCG), the Commission's main forum to consult national and European consumer organisations, on Oct. 6 published a prelimniary opinion on the Commission Proposal for a Directive on consumer rights.

Interestingly, ECCG does not believe the minimum harmonisation approach of the current directives has genuinely created barriers to cross-border trade and feels that other reasons such as differences in language, tax regimes, the lack of redress systems are much more relevant in this context.

The ECCG regrets that the proposal:

• does not provide for a high level of consumer protection, but rather requires Member States to reduce well-established consumer protection levels, including in some cases, to levels below those provided in the current directives. In addition, ECCG is concerned that Member States will be prevented from increasing these levels in future;
• includes only a few laudable improvements such as a common 14 days cooling-off period and the regime for the passing of risks;
• fails to introduce the promised clarifications and coherence of the consumer acquis, not least because it is limited to just four directives only;
• is unclear on a series of key issues such as the relationship with national
• general contract law and other relevant EU legislation;
• fails to respond adequately to the challenges of modern markets and new technologies and in fact may prevent national developments to address these concerns – especially those related to digital content.

Full text of ECCG opinion available for download in pdf here>>.

Japan: arline asks passengers to use toilet before boarding

From Oct. 1st All Nippon Airways has started to ask passengers to use the toilet before boarding, to reduce carbon emissions. If only half of the passenger followed the advice, the airline hopes that the weight saved will lead to a five-tonne reduction in carbon emissions over a month.

Source: telegraph.co.uk; find article here>>.