PASSENGER RIGHTS By P.P.C. Haanappel At the Gdansk Air & Space Law Conference 2013

Passenger rights as a contractual issue The contract of carriage between airline and passenger International Air Traffic / Transport Association (IATA) / Airline Conditions of Contract and Carriage First IATA Conditions in 1927 (Vienna Conditions) Substantially revised in the so-called Bermuda Conditions of the year 1949, and thereafter

Freedom of contract A fiction Inequality of bargaining power State / (inter)governmental intervention

First international intervention The Warsaw Convention on air carrier’s liability of the year 1929 Quid pro quo: limited liability of the air carrier in exchange for presumed liability of the carrier

The difficult area of delay in the Warsaw Convention Article 19 of the Warsaw Convention Clause 9 of the (former) IATA Conditions of Contract Conflict: some regulators and courts intervene E.g., Swiss government – US CAB (Civil Aeronautics Board) – German Bundesgerichtshof – The problem of delay continues to plague us!

Montreal Convention 1999 The regime for delay (Article 19) remains substantially the same, in comparison with the Warsaw Convention; the amount of damages is expressed in SDRs (max SDR = approx Euro) The problem remains that denied boarding compensation (DBC) and flight cancellations are not covered by the Warsaw / Montreal conventional system

Denied Boarding Compensation Problem originates with computerized reservation systems (CRS) Overbooking and “no shows” The US Civil Aeronautics Board first intervenes in the 1970s: Part 250 CFR (Code of Federal Regulations) The EU first intervenes in 1991: Regulation 295/1991 on DBC

EU Regulation 261/2004 Extended from DBC to also: Flight cancellations; Long flight delays. Compatibility, in the area of delay, between Regulation 261 and the Montreal Convention? Initial attitude; Judicial “activism” in the European Court of Justice: the Sturgeon and TUI cases of 2009 and 2012

Revision of Regulation 261 Commission proposals in 2013 Action in the European Parliament 2014 The role of National Enforcement Bodies (NEB) Can the new text solve the legal conflict between the European Regulation and the worldwide system of Article 19 of the Warsaw / Montreal conventional system? The new German legislation in the Gesetz zur Schlichtung im Luftverkehr (Act on dispute settlement in air transport), in force

Other aspects of passenger rights Voluntary or compulsory system The European Civil Aviation Conference (ECAC) The European Union (EU) Other jurisdictions

Proliferation of different sets of passenger rights Conflicts of law and policy Is a worldwide solution desirable and feasible?

The International Civil Aviation Organization (ICAO) Solution through Annex 9 on Facilitation?

The International Air Transport Association (IATA) Solution through the Passenger Services Conferences?

The issue of consumer / user input The issue of global representativeness

Conclusion Questions? Discussion?