Tuesday, 11 December 2018

Consumer organisations join forces against 'no show' practices by air carriers

A recent communication from BEUC informs about a coordinated initiative by several national consumer organisations directed against the so-called 'no show' clauses used by air carriers. Pursuant to these clauses air carriers are authorised to cancel complete multi-flight bookings if passengers miss parts of their journey. This can lead to cancellations of connecting flights or return flights in round-trip itineraries (already paid for by the passengers). According to BEUC, such clauses are contrary to national laws implementing Directive 93/13/EEC on unfair terms. Arguably, this interpretation has already found support from several national courts (e.g. in Germany, Spain and Austria).

Two aspects of this development are worth highlighting.

Firstly, it is not the first time 'no show' clauses have been brought to public attention. Most notably, partial ban of 'no show' clauses in contracts between air carriers and passenger (i.e. not just consumers) was envisaged in the proposed reform of Regulation 261/2004, put forward in 2013. The proposal, however, got stuck in the legislative pipeline. BEUC is now calling on the Commission to revisit the matter.

Noteworthy are furthermore the two types of strategies pursued by consumer organisations. On the one hand, there are measures taken directly against the companies concerned (formal requests to cease the practice, (threats of) taking legal action). Besides the abovementioned proceedings in Germany, Spain and Austria (interestingly, no requests for a preliminary ruling as far as I can see), this has reportedly been the case in Greece, Malta, Belgium, Denmark and the UK. On the other hand, there are complaints to national consumer authorities and calls for a CPC action.

It will be interesting to see whether and if so, which of these different avenues will prove successful. Equally relevant are, of course, the possible legislative developments at the EU level, including as part of the 2018 'New Deal for Consumers' package. It is far from certain, however, whether EU-wide proposals on collective redress will not suffer the same fate as the 2013 passenger rights reform. For the time being, consumers and consumer organisations have to make do with existing enforcement mix.

3 comments:

  1. Italian Competition Authority (which enforces UCPD, as transposed in Italian Consumer Code) has obtained from most air carriers operating in Italy (Alitalia, Air France, Lufthansa, Iberia, Etihad, KLM, British Airways, etc.)a relaxation of the no show rule: passengers have the right to use the return ticket if they inform, within a given timeframe, the carrier of their intention to fly the return leg; consumers must be appropriately informed about this right before purchasing the ticket, and information on how to confirm return flight must be easily available, and a dedicated communication channel should be provided.
    Regards
    Fabio Massimo Esposito

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  2. Italian Administrative Judges upheld Italian Competition Authority's decision to fine Alitalia for having enforced the no show rule without giving consumers the option to confirm their intention to use the return ticket without surcharge.

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    Replies
    1. Thank you for providing us with this further information - very interesting!

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