Friday, 22 December 2017

AG Sharpston Opinion in Finnair case : An electronic complaint is a complaint in writing

On the 20th of December, the AG opinion on Case C-258/16 Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia (hereafter: Finnair case) was published. The case concerned the interpretation of Art. 31 of the 1999 Convention for the Unification of Certain Rules Relating to International Carriage by Air (hereafter: Montreal Convention) on timely notice of complaints.

Facts of case

Ms Mäkelä-Dermedesiotis travelled from Malaga to Helsinki on a Finnair flight in 2010. Upon arrival she discovered that items were missing from her checked-in luggage. On the same day of the flight, Ms Mäkelä-Dermedesiotis contacted the customer service of Finnair to report the incident. In that phonecall, she identified the lost items and informed the Finnair representative of their value. The representative entered the information provided by Ms Mäkelä-Dermedesiotis into the Finnair electronic information system. Ms Mäkelä-Dermedesiotis had taken out insurance and received compensation for her loss and the insurance company, Fennia, was subrogated in her place in the claim against Finnair. Finnair argued that Ms Mäkelä-Dermedesiotis had not filed a written claim within the periods laid down in Article 31 of the Montreal Convention.

Article 31 of the Montreal Convention states that:
1.Receipt by the person entitled to delivery of checked baggage … without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3
2.In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage … In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage … [has] been placed at his or her disposal.
3.Every complaint must be made in writing and given or dispatched within the times aforesaid.
4. If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.’


The case eventually reached the Supreme Court of Finland which referred the following 4 questions to the CJEU:
(1) Is Article 31(4) of the Montreal Convention to be interpreted as meaning that, to preserve a right of action, it is necessary, in addition to giving notice of a complaint in due time, that the complaint be made in writing within the times specified, in accordance with Article 31(3)?
(2) If, to preserve a right of action, a complaint must be made in writing in due time, is Article 31(3) of the Montreal Convention to be interpreted as meaning that the requirement of writing may be fulfilled in an electronic procedure and also by the registration of the damage in the information system of the carrier?
(3) Does the Montreal Convention preclude an interpretation by which the requirement of writing is regarded as fulfilled where, with the knowledge of the passenger, a representative of the carrier records in writing the notice of complaint/the complaint either on paper or electronically in the carrier’s system?
(4) Does Article 31 of the Montreal Convention subject a complaint to further substantive requirements than that of giving notice to the carrier of the damage sustained?’


The incident in question, where items were missing from the luggage but not the luggage itself, is best characterised as damaged baggage rather than loss of baggage, according to the AG. That is important to ensure that Art. 31 of the Montreal Convention applies.
The answer to the first question according to the AG is that the notice under Art. 31 needed not only to be made within the 7-day limit but also to be made in writing in order to be valid. That is hardly surprising as Art. 31(4) of the Montreal Convention clearly sets out both requirements and any other interpretation would leave the airline carrier vulnerable to complaints about damaged luggage that would be difficult to verify.
The real essence of the opinion can be found in questions 2 and 3 which ask whether an electronic record of the complaint via representative is compliant with the requirement of Art. 31 of the Montreal Convention to have the complaint ‘in writing’.
In order to answer the second question AG Sharpston contrasted the main characteristics of written and oral communication. The key characteristics of written communication are permanence and retrievability, while oral communication is only recalled from memory and it is difficult to verify. In other words, verba volant, scripta manent. The question then becomes whether electronic communication satisfies the requirements of permanence and retrievability and according to the AG, that is indeed the case. To support her argument, she points out how it is increasingly common, especially for airline companies to keep all their records electronically and how limiting the meaning of ‘in writing’ to a record made in paper would go against the purpose of the Montreal Convention. (para 44 of AG Opinion).
As Finnair held an electronic record of the complaint it was always possible to generate a printout of the complaint which would mean that even a stricto sensu interpretation of ‘in writing’ as ‘in paper’ would be satisfied. (para 49 of AG Opinion) This is a logical interpretation of the condition one that reflects technological developments and everyday practice and is not too onerous for consumers.
This brings us to the third question of whether the consumer needs to record the complaint themselves or whether someone else can do it on their behalf and under their direction as was the case here where the complaint of Ms Mäkelä-Dermedesiotis was recorded by a representative of Finnair. According to AG Sharpston, the Montreal Convention does not set any requirements that aim to prove the origin of the complaint, such as signing the complaint; meaning that the Montreal Convention does not preclude enlisting help for ‘transforming the complaint he wishes to make into written form’ (see para 57 of AG Opinion). So, a complaint that originated with the passenger who decided to report the complaint, as well as its content, that a representative of the airline assisted to record, is compliant with the requirements of the Montreal Convention.
Finally, the answer to the fourth question was that there are no other substantive requirements to be satisfied other than the complaint to be given in written form in the time limits prescribed.

AG Sharpston provided a convincing and intelligent analysis of the issues in question which was well grounded in the realities of the passenger-airline relationship. Airline companies should not be allowed to circumvent their responsibilities to passengers based on a narrow interpretation of the law. Accepting that electronic communications constitute communication ‘in writing’ is logical and consistent with the way companies function in the 21st century. Overall, this is a welcome opinion that, if adopted by the Court will make a difference for many consumers in what is a very common occurrence. This blog will keep you informed you of all the developments of the case.

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