Saturday, 14 April 2018

No loophole for airlines- ECJ says an electronic complaint is a complaint in writing

On 12th April the ECJ judgement on the Finnair case was published on article 31 of the Montreal Convention, with the main question revolving around what qualifies as a complaint in writing.
This is important as a complaint in writing is a requirement for bringing an action against the carrier.
The Court followed the AG Opinion (you can find the blog post on the AG opinion here).



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.



The first question was used to establish whether the requirements for bringing an action against the carrier are both filing a complaint within a certain time limit and in writing. The Court answered that indeed art. 31(4) of the Montreal Convention is to be interpreted in conjunction with art. 31(2) and 31(3), meaning that the complaint must be made in writing within the period specified in art.31(2).
For the second and main question, the Court chooses to interpret the term ‘in writing’ in a broader way stating that it ‘must be interpreted as referring to any set of meaningful graphic signs, irrespective of whether they are handwritten, printed on paper, or recorded in electronic form’ (para 35). The court adopts this broad interpretation of a complaint in writing which allows it to catch up to technological developments, as electronic complaints are common practice, especially for air carriers.
A narrow interpretation that would exclude electronic complaints would place a disproportionate barrier to consumers seeking to complain, as highlighted by the Court (para 34). As the Court leaves the form of the complaint open it draws attention to another element, that of being able to identify the passenger which made the complaint. In essence, the Court moves away from the written requirement, as one that needs to be made on paper, to any medium, including an electronic one, which allows for retrieval of information and identification of the complainant.
The third question asks whether the requirement of writing is fulfilled when a representative of the carrier records the complaint in the carrier’s electronic system with the knowledge of the passenger. The court does not view it as problematic that the passenger may be assisted to file the complaint. However, it sets an additional requirement that the passenger should be able to review the complaint and amend it or supplement it within the deadline for filing a complaint. (para 47). Not only is there a positive answer to the third question, but the court places an additional obligation to air carriers, not specifically listed in the Montreal Convention.
Finally, the fourth question was whether art.31 of the Montreal Convention prescribed any other requirements except that of giving notice of the complaint. The Court decided that since the Montreal Convention specifies the time limit for the filing of the complaint as well as the form (in writing) and the consequences of failure to comply with these requirements, there is no other substantive requirement (para 53).



To sum up, this is a sensible judgement that protects the interests of consumers and showcases that the Court understands the realities of air travel, as experienced by passengers daily. It also sends out the message to air carrier companies that they cannot circumvent their obligations from the Montreal Convention on the basis of an anachronistic interpretation of the wording of the Convention.



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