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21 July 2010
The consumer association Test-Achats recently claimed that the websites and contractual conditions of three airlines - Brussels Airlines, Ryanair and EasyJet - were incompatible with Belgium's fair trading legislation.
The Namur Commercial Court issued three judgments on March 10 2010. Those relating to Brussels Airlines and Ryanair review the two airlines' contractual conditions and websites in detail, whereas the judgment relating to EasyJet deals only with the issue of the court's jurisdiction.
These first instance rulings represent the first detailed examination of airlines' contractual conditions in light of Belgian fair trading law, which is directly influenced by the relevant EU directives, including Directive 2005/29/EC. Although the rulings are controversial and, in places, betray a lack of understanding of industry practice, they are highly significant for the aviation sector.
The court ruled on the following points.
Access to general conditions
If an airline's general conditions are linked to the home page of its website, or are referred to on the website and are available from a call centre or travel agency, this meets the airline's legal obligation actively to inform customers of the applicable contractual conditions before they agree to the main elements of an offer.
The reference to the contractual conditions must be clear. An additional reference to 'advice' given to customers is deemed to be unsatisfactory and misleading, since this may lead a customer to believe that contractual conditions other than those referred to as 'conditions of carriage' are applicable.
Modification of general conditions
A provision which purports to allow an airline to modify essential services, such as provisions on unaccompanied minors, the carriage of pets, electronic devices and check-in times, is illegal if it is not limited in scope and restricted to expressly specified services.
Although Belgium's three official languages are French, Dutch and German, the court dismissed a complaint against a website that was available only in French, Dutch and English.
Consistency of general conditions
The court considered the consistency of the applicable conditions at the time of accessing the website and during use, including the question of which conditions prevail when general and specific conditions apply. Particular consistency issues arise in respect of tariffs, but these were not addressed satisfactorily.
Duty of information
The court examined an airline's duty of information in respect of fees charged to a passenger in the event of the loss of a ticket. This duty must be clearly specified. A provision requiring passengers to take steps to verify a check-in time, especially abroad, is valid and proportionate. The court reached the same conclusion on provisions relating to the items that a passenger may carry as checked baggage, provided that the airline's website and contractual provisions clearly specify such items or refer to relevant lists (eg, those issued by the International Civil Aviation Organization or the International Air Transport Association), which must be directly linked to the airline's website.
The court ruled that even where an airline complies with its information obligations relating to code-sharing partners and actual carriers by following EU Regulation 2111/2005, code sharing that amounts to a "transfer of the contract of carriage" may lead to "a reduction in consumer protection without... consent" and thereby contravenes the Fair Trading Act.
This highly controversial ruling also takes into consideration the standard provision that prohibits a passenger from transferring his or her ticket. The court has asked the Constitutional Court to consider whether it is discriminatory for an airline to be entitled to transfer its contract of carriage, whereas passengers cannot transfer tickets. This contentious view takes no account of standard industry practice.
Airlines are prohibited from claiming damages for handling a termination of contract of carriage as a result of force majeure. The ruling also applies to administration fees where these are not clearly specified.
Sequence of use of tickets
The court held that provisions which prevents a passenger for terminating the contract of carriage if he or she has failed to use his or her tickets in the proper order is disproportionate and illegal. However, Belgian courts have ruled differently in the past.
Right to refuse carriage
The court upheld an airline's right to refuse carriage to unruly passengers, among others.
Airlines operating websites that refer to third-party providers of ancillary services, such as hotels and car rental companies, are not considered providers of such services if they merely offer links to the providers and are not otherwise involved in the provision of such services.
Liability of airline staff and agents
The court confirmed as valid a provision which states that the limitation of liability applying to an airline also extents to its staff and agents. The consumer association had argued that such a provision should state that the limitation applies only insofar as the staff member or agent is acting within the scope of his or her employment under Article 30 of the Montreal Convention. However, the court found that the provision need not specify such details.
In general, the assessment of Ryanair is much more severe than that of Brussels Airlines. The interim judgment on EasyJet is limited to the issue of jurisdiction, which the court confirmed after a detailed assessment.
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Pierre D Frühling