European Union: Commission to strengthen systems to enforce consumer law

Today the European Commission adopted a "consumer enforcement package" to strengthen the EU-wide enforcement of consumer rules. The package consists of: a Communication setting out five priority areas for action, and a report on the first two years of application of the Consumer Protection Cooperation (CPC) Regulation1, which established an EU wide network of public authorities enforcing consumer rules in the Member States ("CPC Network"), for example, with EU wide investigations into websites selling airline ticket or ringtone subscriptions for children. Effective enforcement of consumer law is major priority for EU consumer policy - both in terms of ensuring that consumers feel the full benefits of their consumer rights in their daily lives, as well as establishing a level playing field for firms in a competitive single market.

Source: EU press release IP/09/1080 of 2 July 2009; find full text here>>.

USA: lawmakers seek assurance on privacy of passenger data

U.S. Federal lawmakers want to know what will happen to sensitive data of more than 150,000 travelers after the country’s leading airport secruity fast-lane company ceased operation last week. The House Homeland Security committee asked the TSA in a letter last Thursday to explain what it knows about the privacy of the data of the 165,000 customers of the privately-issued Clear pass. That data trove left a lot of unanswered questions after Clear suddenly closed.

Source: wired.com; find article here>>.

Utah: entrance to bars simplyfied to boost toursim

For 40 years, Utah required customers to become a member of a private club before they were allowed to set foot in a bar. Now this requirement was eliminated in an effort to boost the state's $7 billion-a-year tourism industry and make the state appear a little less quirky to outsiders.

Source: USA today; find article here>>.

Cancellation or Delay - some 'Highlights' of Advocate General Sharpston's Opinion

...

31. In the explanatory memorandum to its original proposal for a regulation, the Commission noted, at point 20, that ‘[c]ancellation by an operator … represents a refusal to supply the service for which it has contracted, except in exceptional circumstances beyond its responsibility, such as political instability, severe weather conditions, inadequate security and unexpected safety failures. For the passenger, cancellation in ordinary circumstances, for commercial reasons, causes unacceptable trouble and delay, particularly when not warned in advance.’ At point 23, it stated: ‘Although passengers suffer similar inconvenience and frustration from delays as from denied boarding or cancellation, there is a difference in that an operator is responsible for denied boarding and cancellation (unless for reasons beyond its responsibility) but not always for delays ...

32. It is not all that easy to discern the logic behind the distinction that the Commission was there drawing ...

...

35. In the course of the legislative process, however, there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it is difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.

...

38. The Regulation has the considerable merit of granting automatic compensation to passengers whose flights have been cancelled. However, as the Polish Government notes in its written observations, the distinction the Regulation introduces between cancellation and delay may lead to passengers who find themselves in objectively similar situations being treated differently.

...

47. In the IATA and ELFAA judgment, the Court stated unequivocally that the objective of Articles 5 (cancellation) and 6 (delay) of the Regulation is apparent from the first and second recitals in the preamble, according to which action by the Community in the field of air transport should aim, inter alia, at ensuring a high level of protection for passengers and should take account of the requirements of consumer protection in general, inasmuch as cancellation of, or long delay to, flights causes serious inconvenience to passengers.

...

51. However, regardless of the seriousness of the inconvenience caused, the Regulation provides that the cancellation of a flight automatically triggers a right to compensation (under Article 7) while a delay never does. As the order for reference in Sturgeon suggests and as the Commission indicated at the hearing, the Regulation therefore appears to be based on the assumption that a cancellation necessarily causes more inconvenience to passengers, and hence merits a stronger form of protection, than a ‘mere’ delay.

52. It is wholly unclear to me why this should be so ...

...

60. It seems to me that the underlying logic (again, against the background of enhanced consumer protection) must have been that, where the operator is not responsible for the inconvenience (whether caused by cancellation or long delay), he should not have to pay compensation; and that, conversely, where he is responsible, he should pay. Put another way, the criterion for compensation is not causation, but fault (broadly defined) on the part of the operator.

61. If that is right, it still does not explain why passengers suffering the inconvenience of a cancellation and passengers suffering the inconvenience of a long delay are treated differently. ...

62. The difference in treatment therefore appears to fall foul of the principle of equal treatment.

...

68. Factors that have been cited before the Court and in national case-law and legal writing as providing possible indications that a flight has been cancelled include: change of air carrier, change of aircraft, change of flight number, change of airport of departure or arrival, giving baggage back to passengers, new check-in for passengers, new seating assignment, allocation of all passengers to one or more other aircrafts, issuing new boarding passes, and the fact that the flight is described as ‘cancelled’ by the pilot (or other air carrier staff) or on the departures board.

69. Common sense suggests that all of these factors could be indications that a flight has been cancelled rather than merely delayed. The more factors that are present together, the more likely it becomes that there has indeed been a cancellation. By the same token, I do not think that any individual factor can be conclusive.

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72. The Commission, supported at the hearing by counsel for Mr Böck and Ms Lepuschitz, for Condor, and for the Greek Government, suggests in its written observations that a change of flight number is a strong indication that a flight has been cancelled. I agree.

...

75. Since none of the factors cited can be conclusive on its own, national courts must assess the importance of each of them, when they are present in combination, in each individual case. That may lead to significant problems with legal certainty.

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81. As a matter of common sense, time is obviously a factor in identifying whether a flight has been cancelled. If a number of the factors listed above are present in combination and/or the flight has been delayed for an inordinate period of time, that is a very strong indication that the flight has in fact been cancelled.

...

83. ... However, there are two difficulties with this approach. First, what is meant by ‘inordinate delay’? Second, is it permissible to interpret the Regulation in a way that classifies inordinate delay as de facto cancellation?

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87. It seems to me impossible to identify, with any acceptable degree of precision, exactly what period of time must elapse before a delay become ‘inordinate’.

88. It would therefore be a matter for the national court, in each individual case, to evaluate the facts and reach a view – based on some mixture of national legal tradition, good sense and instinct rather than any precise Community legal norm – as to whether the delay in that instance had been ‘inordinate’ and should therefore be regarded as a de facto cancellation. ...

...

96. It seems to me that, in seeking to avoid Scylla (obvious discrimination against passengers whose flights are inordinately delayed when compared to passengers who obtain automatic compensation for their cancelled flight), one is immediately swept into Charybdis (legal uncertainty). ...

European Court of Justice: Advocate General Sharpston suggests reopen oral procedure on whether Articles of Regulation 261/2004 (EC) are invalid

In Cases C-402/07 -Sturgeon and C-432/07 - Böck both related to the destinction of cancellation and (extra) long delay according to Reg. 261/2004, Advocate General Sharpston in her opinion delivered this morning pointed out that in the course of the legislative process, regardless the importance there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it was difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.

She suggested that

• Before ruling on the questions posed by the Bundesgerichtshof and the first and second questions posed by the Handelsgericht Wien, the Court should reopen the oral procedure pursuant to Article 61 of the Rules of Procedure and invite submissions from the Member States, the Commission, the European Parliament, and the Council on whether Articles 5 and 7 and Article 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, inasmuch as they draw a distinction between cancellation and delay (irrespective of length), are invalid in the light of the principle of equal treatment.

In regard to the excuse of extraordinary circumstances and technical problems she re-affirmed:

• 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 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.

Full text of opinion available here>>.

European Union: Regulation on travelling with pets

On 16 June the European Commission adopted a proposal according to which transitional animal health requirements applicable to the movement of pet animals travelling with their owners to Finland, Ireland, Malta, Sweden and the United Kingdom are to be extended until 31 December 2011. The proposal will be discussed by the European Parliament and the Council, with a view to formal adoption through the co-decision procedure.

In accordance with the current rules laid down in Regulation (EC) 998/2003 (known as the "Pet Regulation"), pet dogs, cats and ferrets travelling with their owner for non-commercial movements to another Member State must be accompanied by a passport or, when imported from a third country, by a certificate providing proof of a valid anti-rabies vaccination.

The Regulation also grants a transitional period expiring 30 June 2010 to Finland, Ireland, Malta, Sweden and the United Kingdom to make the entry of pet animals into their territory subject to compliance with certain additional requirements in relation with rabies, the tapeworm Echinococcus multilocularis or ticks (the "transitional regime").

The Commission considers that the conditions for moving to a fully harmonised set of rules throughout the EU that would avoid unnecessary burden for travellers are almost entirely fulfilled.

Source: European Commission, DG Health and Consumers, Health & Consumer Voice July 2009 Edition

More information at:
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/277&format=HTML&aged=0&language=EN

UK: chaos to be expected from new electronic passport checks?

The e-borders programme, which is due to be fully in force by 2014, is aimed at tackling terrorism, crime and illegal immigration and allows passenger details to be checked against watch lists. However, travel operators from the rail, shipping and travel industries told MPs that the Home Office had not consulted them properly and warned that the system could lead to unacceptable delays: Travellers could face chaos during this year's school holidays if airlines are forced to implement new electronic passport checks.

The government said the e-borders scheme was already a proven success.

But travel operators warned it could breach EU laws on data collection. And they said the flagship £750m programme to collect electronic records of everyone who enters and leaves the UK will also miss Home Office deadlines.

Source: BBCNews; find article here>>.

European Uniton: Commission alerts consumers to the importance of sun protection

At the start of the holiday season, the European Commission alerts consumers to the importance of adequate protection from the sun this summer and reminds them to look out for the clearer labelling regime on sunscreen bottles. The new labels - including a new UV-A logo or seal on bottles and a ban on misleading terms such as "sun blocker" or "total protection" - are a response to a Commission recommendation on sunscreen products adopted in September 2006. The Commission is also seeking to remind consumers that there are several reasons why sunscreen products should be only one out of a number of measures which are necessary to protect from the UV radiation of the sun.

Source: European Commission press release; find full text here>>.

Twitter Technology and the Revolution in Iran

The Revolution Will Be Microblogged: Iran's Election and the Power of Twitter
By Kevin Fayle on June 25, 2009 12:30 PM | No TrackBacks

http://blogs.findlaw.com/technologist/2009/06/the-revolution-will-be-microblogged-irans-election-and-the-power-of-twitter.html

The events that have unfolded in Iran following the contested
presidential election have transfixed the world. Much of the
information that has come out of (and into) the country has traveled
over social media services as a result of censorship and blocking of
communications systems by the government.

The crisis in Iran has allowed Twitter, the microblogging service, to
mature into a legitimate and important communication tool. Twitter
has played such a prominent role in allowing mobilization and
documentation of the Iranian opposition that the US State Department
at one point even asked the company to put off a scheduled maintenance
so that Iranians could continue using the service.
Iconic images and videos, such as the shooting of Neda Agha-Soltan
(warning: the video is graphic and disturbing), have flooded out of
Iran and the protesters have used the service to organize rallies and
spread information. Twitter has also been instrumental in allowing
outsiders to read real-time reports about the events in Iran, all
despite the fact that the government has actively attempted to block
communication of the turmoil to the outside world.

Twitter has become the default method of communication about the
Iranian situation because of one primary characteristic: openness.
Despite the fact that the government has blocked the Twitter site
itself, there are many websites that utilize the Twitter Application
Programming Interface (API) and allow users to read others' tweets and
post their own. The Iranian authorities don't always know about these
sites in order to block them, which allows Iranian citizens to
continue to tweet about the events as they occur.

Those interested in following the unfolding events or tweeting about
something related to the Iranian election can also utilize another
feature of Twitter, called hashtags, in order to read reports on the
election and direct their comments to the right conversation. A
hashtag is basically a keyword with a hash symbol in front of it.
People place hashtags in their tweets in order to make it easier for
others to locate posts on a particular topic, and users of the Twitter
search function can search for those hashtags in order to easily find
the conversation threads they're after.

For example, the two most popular hashtags used to identify a tweet
about the Iran election are #iranelection and #gr88. A message using
one of those hashtags might look something like this: "more protests
in the streets of Tehran #iranelection".

Twitter has definitely had an overall positive influence in the midst
of the Iranian tragedy, but there is also a possibility that the site
could become a tool for the security forces to track down and suppress
those posting to the service. Since data on the internet can live
forever, and since people communicating over the internet leave traces
that they might not be aware of, those Iranians using Twitter should
be cautious, lest they inadvertently identify themselves or those
around them as members of the opposition protest movement.

The success of Twitter in keeping communication flowing in and out of
Iran despite the governments attempts at censorship reveals that
technology can be a powerful tool against oppressive regimes. The
metadata about tweets and the publicity of the messages can also
create danger for those actively using the service to spread news and
organize political protests, however. Like most things in life,
Twitter is a double edge sword that, when used properly, can be a
great benefit. When used carelessly, however, it can lead to woe and
misfortune.

Regimes like those in China and Iran try very hard to control what
their citizens see and do online. Some argue that this violates the
right to freedom of expression guaranteed by several international
treaties, as well as the laws governing international trade. Tools
like Twitter that are difficult for the regimes to control can help to
keep citizens of the countries connected to the outside world, and
give them a voice when the government tries to silence them. This in
turn can help ensure that all individuals can enjoy the rights
guaranteed to them under international law.

See Also:
Tyranny's new nightmare: Twitter (LA Times)
Cyberwar guide for Iran elections (Boing Boing)
HOW TO: Track Iran Election with Twitter and Social Media (Mashable)
Unrest in Iran raises profile for Twitter (MercuryNews.com)

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>>.

USA: Al Anolik discussing cruise-safety on the radio

In an interview with Sandy Dhuyvetter of Travel Talk Radio, Al Anolik, founding member and president emeritus of IFTTA, shared his views on the Cruise Vessel Security and Safety Act currently pending before the US Congress.

The interview can be read at eTurboNews here>>.

Austria: visit of traditional Krampus event at own risk

At traditional Krampus events in Austria (Krampus = Santa's devilish helper, the guy that punishes the bad kids on St. Nicholas day) -mainly in the western provinces - the the young men of the villages walk and dance through streets disguised as Krampus wearing birchs scaring and incidentally whipping visitors.

Plaintiff who participated in such event as a visitor was hit at her left eye by the stem of a birch dangling from the wrist of a dancing "Krampus". She sued the organizer of the event for compensation for pain and suffering.

Austrian Supreme Court (OGH), however, dismissed the claim: there had been no fault on part of the organizer as the general duty to maintain saftey must not be overdrawn. It would not be reasonable to require the organizer to provide a minder to each of the (250!) Krampusses while it was part of the event that the Krampusses would mingle with the visitors and have fun scaring them. The risk had been forseeable for plaintiff as visitors usually participate to enjoy the thrill of playing the 'victims' of the Krampus. As the Krampus did not deliberately injure plaintiff but the accident happend as a consequence of his dancing moves it would have been up to herself to care for her safety.

Supreme Court decision 10 Ob 15/08s of 17.03.2009 available in German here>>.

Ireland: Non-extension of compulsory licensing to internet sites

The Irish state regulator for tour operators and travel agents has advised the Irish government against extending the statutory compulsory licensing and bonding scheme to internet sellers of travel services.

Report available at http://www.transport.ie/viewitem.asp?id=11263&lang=ENG&loc=432

Reported to IFTTA by Marc Mc Donald

USA: travel agents' class action against YTB partly dismissed

Although the U.S. District Court in Illinois did not dismiss the case outright, it granted parts of YTB’s motion to dismiss a class action brought against the multilevel marketing travel company by former referring travel agents, who charged that YTB operated an illegal pyramid system.

The court dismissed allegations against YTB subsidiary Rezconnect and its CEO, Michael Brent, on grounds that the court did not have jurisdiction over the New Jersey-based business.

Source: Travel Weekly; find article here>>.

Spain: refrence for preliminary ruling on Montral Convention in regard to non-material damages

Commercial Court Barcelona (Juzgado de lo Mercantil 4, Barcelona) filed a reference for preliminary ruling to the European Court of Justice on whether 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, included both non-material damage and material damage resulting from the loss of baggage.

Case C-63/09; Reference published OJ C 102 of 01.05.2009, p.11.

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>>.

Germany: no insurance protection for accident due to excessive sun exposure

During her holidays on the beach, plaintiff doze off under an umbrella. As the shadow moved she got exposed to sunshine for several hours. When she got up she suffered a circular collapse, fell and banged her head against the concrete border of a flowerbed.

Her claim against the accident insurance was dismissed by German Supreme Court (BGH) as due to General Conditions of the insurance contract an exemption apllied to accidents caused by reduced conciousness.

German text of decision IV ZR 219/07 of Sep. 24, 2008 available for download at http://www.bundesgerichtshof.de/.

European Court of Justice: national courts required to examine unfairness of contract terms of their own Motion

Council Directive 93/13/EEC on unfair terms in consumer contracts provides that unfair terms used in a contract concluded with a consumer by a seller or supplier are not binding on consumers. In a decision of June 4^th, 2009 (Case C—243/08 - Pannon GSM Zrt. v. Erzsébet Sustikné Győrfi) ECJ held that the protection which the Directive 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 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 No 46/09

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

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

Pleas in law and main arguments

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

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

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

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

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

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

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

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

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

USA: State Department Alert Signals Hurricane Season

The U.S. State Department has issued its annual alert on the coming of the Hurricane Season in the Atlantic and Pacific oceans, the Caribbean and the Gulf of Mexico. The official Atlantic Hurricane Season runs from June through November. The alert expires on Dec. 4, 2009. It cites officials at the National Weather Service and at the National Oceanic and Atmospheric Administration (NOAA) who predict a 50 percent chance that activity during the 2009 Atlantic Hurricane Season will be near-normal this year, forecasting nine to 14 named storms, with four to seven becoming hurricanes and one to three becoming major hurricanes.

For further information see www.travel.state.gov