EU261 Claims: Newsletter #12
- OSS Team
- May 16, 2024
- 11 min read
The Newsletter reports on case law regarding EU261 claims from around Europe that may be interesting for airline defence strategies or settlement decisions. Although EU261 is a European regulation, national courts unfortunately take very different approaches in its interpretation. Furthermore, court decisions from many jurisdictions are not published and are therefore difficult to access.
Given that our member law firms are experts in dealing with EU261 claims within their
respective jurisdictions, they have access to important precedents and are happy to share them.
CZECH REPUBLIC
Legal topic:
Failure to bear the burden of proof of
participation in the flight
Date:
03.2024 - 04.2024
Court:
District court of Prague 6
Case number:
13 C 159/2023-28
Party names:
Confidential
Passengers claimed compensation for a flight delay of more than 3 hours. On the basis of our defence, the court asked the plaintiff to prove that the passengers had actually travelled on the flights in question. The plaintiff failed to do so and the court ruled that the plaintiff had not borne its burden of proof in failing to establish the primary fact that the passengers actually participated in the flights in question. Therefore, the court decided not to assess the supporting argument of the existence of extraordinary circumstances in the form of restrictive
ATC slots any further and, for the abovementioned reasons, dismissed the lawsuit.
DENMARK
Legal topic:
The case involving Brussels Airlines deals with a payment dispute with liberating effect to an OTA
Date:
18.10.2023
Court:
The City Court of Copenhagen
Case number:
BS-2947/2022-KBH
Party names:
Flyhjælp ApS vs. Brussels Airlines
The passengers had purchased tickets through Flysmarter (OTA) but when the flight was cancelled, they demanded that the refund should be paid by Brussels Airlines.
In response, Brussels Airlines referred to its T/C, which stipulates that refunds are issued directly to the card used for the payment of tickets. Meanwhile the OTA's T/C stated that refunds would be received on behalf of its passengers and then reimbursed to them in turn.
In light of the T/C of both the OTA and Brussels Airlines, the court emphasized in its judgement that the passengers/CMC did not contact the OTA, despite Brussels Airlines’ encouragement to do so, before reaching out to Brussels Airlines, demonstrating no effort to reclaim the refund from the agency, nor did the passengers/CMC produce any evidence of not having received any payment from the OTA. Consequently, the court concluded that neither the passengers nor their representative had made sufficient efforts to retrieve the refunds from the travel agency.
As a result, the City Court of Copenhagen ruled that Brussels Airlines had paid with liberating effect and ordered the passengers to cover Brussels Airlines’ legal expenses.
Our comments
This judgement was the first City Court decision on OTA double payments in favour of the airline and was not appealed by the passengers, even if the CMC did seek permission to appeal, which was subsequently granted but not applied.
In this specific case, the court ruled that passengers are now forced to take active steps.
Therefore, passengers are now obliged to firstly contact the OTA/travel agency, enabling them to eventually raise a demand towards the airline when claiming refunds (in cases with airlines having T/C stipulating that refunds are made directly to the original means of payment).
The refund was issued prior to any claim from the CMC, specifying which account the airline should transfer the refund to (typically belonging to the CMC). Therefore, this judgement does not establish that the airline can refund to the original credit card used for payment if it turns out that the airline was in bad faith regarding other bank account information provided by the CMC/pax.
The court did not mention the content of the airline's email to the passengers informing them of the cancellation. This indicates that the court did not consider email correspondence to be a decisive factor in its decision.
The judgement marks a promising initial step towards addressing and resolving the problem of double payments to OTAs and passengers. As shown by other cases discussed in this newsletter, Danish courts have notably shifted their stance on these conflicts and, if you read on, you will see that the Danish Supreme Court has tackled this a little differently making the very content of the art. 8 notification and the passenger’s acceptance the centre of attention – obviously setting a real precedent.
Legal topic:
The Eastern High Court upheld the City
Court’s decision, affirming that an airline had the right to automatically refund the ticket price for a cancelled trip to the payment card used for booking even if the passengers could not identify the account. This ruling was based on the passengers’ failure to follow the airline’s guidance to trace the transaction with the bank as well as their failure to provide statements to the court.
Date:
26.01.2024
Court:
The Eastern High Court
Case number:
U.2024.2174 (BS-40185/2023-OLR)
Party names:
Flyhjælp ApS vs. EasyJet
The case involved passengers purchasing flight tickets through an OTA, which had then bought the tickets from EasyJet. Following the flight cancellation, the passengers requested a refund from the airline, which informed them that the amount had been automatically refunded to the payment card used for booking. EasyJet presented evidence of the refund process, including internal documents and an ARN (Acquirer Reference Number) for tracing the transaction. Despite EasyJet’s encouragement to contact the bank with the ARN, the passengers disputed receiving the refund without presenting bank statements. The court found that EasyJet had refunded the amount with conclusive effect, thus upholding the City Court’s decision, and ordered the passengers to cover EasyJet’s legal expenses.
Our comments
Although it is not explicitly stated in the judgement, it is assumed that the passengers
purchased tickets through an OTA.
In future cases, the absence of an ARN in the airline's Proof of Payment could present certain challenges. The same applies if a passenger attempts to trace the ARN with the bank's assistance but is unsuccessful.
The refund was issued prior to any claim from the CMC, specifying which account the airline should transfer the refund to (typically belonging to the CMC). Therefore, this judgement does not establish that the airline can refund to the original credit card used for payment if it turns out that the airline was in bad faith regarding other bank account information provided by the CMC/pax.
The airline’s proof of having transferred the refund was solely based on internal documents.
This indicates lenient refund requirements.
The airline’s T/C states that refunds can be issued to the OTA. While the judgment does not explicitly refer to it, it is difficult to imagine that this was dismissed by the High Court.
Unlike the City Court in the abovementioned case, the Eastern High Court downplays the significance of passengers not contacting the travel agent before reaching out the airline.
However, please also see below the precedent set by the Supreme Court in the third decision presented in this Newsletter by BACH Law Firm.
Legal topic:
The Supreme Court upheld the City Court's decision, contradicting the decision of the High Court. It confirmed the airline’s right to refund the ticket price for a cancelled trip through the OTA that the passengers used, subsequent to their prior agreement to this arrangement.
Date:
26.03.2024
Court:
The Supreme Court
Case number:
BS-48424/2023-HJR
Party names:
Travel refund ApS vs. Ryanair DAC
The case involved passengers who had purchased flight tickets through an OTA, which had then bought the tickets from Ryanair. Following the flight's cancellation, Ryanair offered a refund and informed the passengers that the refund would be issued through the initial payment method used for booking. After the passengers had accepted the refund, the airline sent them a follow-up email with more detailed instructions regarding the refund procedure.
However, when the passengers sought the refund from the OTA, the OTA claimed not to have received it from Ryanair, leading to a lawsuit against the airline.
The Supreme Court found that the passengers had consented to the refund being paid to the OTA. Consequently, Ryanair's payment to the OTA was deemed legally valid. As a result, the Court upheld the City Court's ruling, absolving Ryanair of any liability and ordered the passengers to cover Ryanair’s legal expenses.
Our comments
It appears that the content of the article 8 email correspondence regarding the cancellation was a determining factor in the court’s decision and that Ryanair’s own T/C could not establish any unconditional right of Ryanair to only refund to the means the passengers originally used to purchase the airline ticket. Furthermore, it appears that the court paid no attention to whether or not the OTA’s T/C had any regulations about claiming any refund on behalf of passengers since the decision does not record any such information.
The refund was issued prior to any claim from the CMC, specifying which account the airline should transfer the refund to (typically belonging to the CMC). Therefore, this judgement does not establish that the airline can refund to the original credit card used for payment if it turns out that the airline was in bad faith regarding other bank account information provided by the CMC/pax.
Fortunately, the court did not address the unclear and non-consumer friendly wording in Ryanair's initial article 8 email, where the airline notified passengers of the cancellation and refund transfer to the original payment method. Thus it appears that the court has lowered the standard for the clarity of communication regarding article 8 of Regulation 261/2004.
Additionally, the court does not mention the fact that the airline’s second email, sent after the passengers had accepted the refund, provided more detailed information than the initial email about where exactly the refund would be paid. This is significant, as it is highly unlikely that any passenger would agree to be reimbursed to an OTA account instead of their own/the CMC’s account.
The airline’s proof of having transferred the refund was solely based on internal documents and lacked an official bank statement. For this reason, the judgement contributes to the acceptance of internal documentation regardless of the nature of the subject matter.
However, it is reasonable to expect Danish courts to uphold certain distinctions regarding what is being proven, such as potentially being more accepting of internal documentation for proving payments compared to proving travel disruptions.
FRANCE
Legal topic:
Identification of the operating air carrier
Date:
23.01.2024
Court:
Tribunal de proximité de Villeurbanne
Case number:
RG 11-23-001706
Party names:
Dominique, Sébastien, Amélie, Clara, Agathe, Paco and Yael JOCTEUR (passengers) vs. Brussels Airlines
In this case, the first section of a flight from Montreal to Lyon with a connection in Brussels was delayed. This first part was operated by a non-European air carrier, while the second part was operated by Brussels Airlines, which also sold the tickets to the applicants. On this basis, the Court considered that, according to the European Union Court of Justice, Brussels Airlines was contractually bound to the passengers in regard to the good outcome of the first flight.
Moreover, the two sections of the flight were under a Brussels Airlines flight number. For these reasons, the Court ruled that EU regulation 261/2004 was applicable and Brussels Airlines was liable for the delayed flight. This position was the opposite to what this Court used to rule in the past.
Legal topic:
Identification of the operating air carrier
Date:
23.01.2024
Court:
Tribunal judiciaire de Paris
Case number:
RG 23/02135
Party names:
Marie SAINT-BONNET (passenger) vs. Brussels Airlines
In this case, the Court ruled and recalled that the air carrier which, through codeshare, has only sold the ticket for a flight entirely operated by another air carrier cannot be considered as the operating air carrier. Under French law, according to article L211-16 of the Tourism Code, the seller of a travel performance is liable for the good outcome of this performance, even if it is performed by another travel provider. But, when the performance sold is only a flight, air transportation regulation concerning the liability of the travel provider must apply instead of the French Tourism Code. Therefore, Brussels Airlines, which only sold the ticket for a flight operated by another air carrier, under the flight number of this other air carrier, was not considered liable for the delayed flight by the Court.
GERMANY
Legal topic:
Flight cancellation due to Covid-19 pandemic
Date:
04.04.2024
Court:
Landgericht Berlin II
Case number:
19 S 3/24
Party names:
Confidential
The domestic German flight in question on 28 March 2020 had to be cancelled due to the pandemic. The Court of Appeal informed the plaintiffs that they would have to demonstrate that the passengers were entitled to take the flight under the terms of the travel restrictions and that they were also willing to take the flight. The court reasoned that, after repayment of the flight price, an additional claim for compensation could be considered an abuse of law.
Passengers who are not willing to take a flight are not entitled to compensation. This also applies if the flight has been cancelled.
ITALY
Legal topic:
Limitation Periods in Italy for Claims under Regulation (EC) No. 261/04
Date:
20.02.2024
Court:
Italian Supreme Court
Case number:
4427
Party names:
Neos S.p.A. vs. Airhelp LTD
The Italian Supreme Court has recently provided crucial clarification on the limitation period applicable to claims brought under Regulation (EC) No. 261/04
Before the intervention of the Supreme Court, the prevailing interpretation within Italian courts was that such claims were subject to the two-year limitation period established under Article 35 of the Montreal Convention.
Particularly, Italian courts interpreted the references to Articles 949-ter and 941 of the Italian Navigation Code as including European and international regulations were widely interpreted
as including the Montreal Convention.
This interpretation led to the prevailing belief that claims filed under Regulation 261/2004 were bound by the two-year limitation period set forth in Article 35 of the Montreal Convention.
However, this interpretation has been revisited in light of the Supreme Court's decision, marking a significant shift in how the limitation periods for Regulation 261/2004 claims are determined within the Italian legal framework.
The Court explicitly excluded the application of Article 35 of the Montreal Convention to disputes arising under Regulation 261/2004, thereby recognizing the distinct legal frameworks of the Regulation and the Convention.
This ruling aligns with the CJEU's 2012 judgment in Case C-139/2011, which dismissed the application of the two-year limitation periods provided by the Warsaw and Montreal Conventions for actions under Regulation 261/2004, instead granting Member States the
autonomy to set their own limitation periods based on national law.
Following this landmark decision, the determination of the applicable limitation period for Regulation 261/2004 claims must now be ascertained within the Italian legal system, specifically through the provisions of the Italian Navigation Code and the Italian Civil Code.
This development represents a significant shift in the legal landscape regarding the timeliness of claims under Regulation 261/2004 within Italy.
LITHUANIA
Legal topic:
Reasonable Measures in cases of Extraordinary Circumstances
Date:
07.02.2024
Court:
District Court of Vilnius City
Case number:
e2-1400-925/2024
Party names:
UAB Skycop.com vs. Ryanair DAC
In this case, the court decided that the air carrier had proved that, in the event of extraordinary circumstances (the aircraft suffered from a bird-strike on the day before the disputed flight), it
had taken all reasonable measures available at the time to avoid a lengthy delay of the disputed flight. In fact, without waiting for the aircraft involved in the bird-strike to undergo a complete inspection, the air carrier found another aircraft and crew and organized transportation to Vilnius airport, thus avoiding a greater flight delay. The plaintiff argued that the delay was a consequence of the air carrier's work organization, not of circumstances that
the air carrier could not control at all or of special circumstances that would cancel the air carrier's obligation to pay the EU261 compensation. The court noted that the plaintiff did not provide evidence that, in that particular situation, the air carrier should or could have taken other actions that would have led to the disputed flight completing its route on time, basically
considering the fact that the search for another aircraft to complete the disputed flight had to be carried out at night, when there were less than 12 hours left before the disputed flight’s
scheduled time.
SWEDEN
Legal topic:
Evidentiary Requirements for Ticket
Repayment in Air Travel Disputes
Date:
27.03.2024
Court:
Göteborg District Court
Case number:
FT 16391-23
Party names:
Passenger vs. Omitted Airline
In addressing the dispute over a cancelled flight, the court found an email confirmation of repayment from the airline’s customer services (brought forward by the defendant) that was sufficient to meet the evidentiary requirements without needing a bank statement. The claim was therefore dismissed. This decision underscores the effectiveness of robust internal documentation and cooperative practices in resolving disputes. The ruling may particularly prove favourable for airlines where the claimant questions the evidentiary thresholds and demonstrates that comprehensive record-keeping and customer feedback mechanisms may be pivotal in substantiating claims during legal proceedings.
