Summary of Dialogue Meeting Regarding Passenger Rights, 15 May 2018

Edvard Thomsens Vej 14 2300 København S Phone Fax 7262 6790

www.trafikstyrelsen.dk

28 June 2018

Summary of dialogue meeting regarding passenger rights, 15 May 2018

Place: The Danish Transport, Construction and Housing Agency

Arne Jacobsens Allé 14

Participants: Uffe Krempel, SAS Stina Myhre Mevassvik, Norwegian Air Shuttle Ali Malik Aslam, Norwegian Air Shuttle Maria G. Rasmussen, Air France-KLM Gregory Michaelsen, Turkish Airlines Hanna Svabo, Atlantic Airways Maria a Lofti, Atlantic Airways Asta Søholm, Air Greenland Sofie Amalie Christiansen, Thomas Cook Airlines Scandinavia Jens Sømod Mønster Birk, DAT Kate Kristiansen, DAT Jesper B. P. Dahl, Jet Time Jakob Hahn, Danmarks rejsebureauforening Pernille Weinkouff Nøhr, TUI Subhana Abghari, IUNO Marie Lobbato, IUNO Lars Korsholm, TBST Signe Finderup Slot, TBST Christina Domenici, TBST Dorte B. Kristoffersen, TBST Toke Klitgaard Lassen, TBST (ref.)

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28 June 2018 1. Welcome The new head of division in charge of passenger rights, Lars Kor- sholm, opened the meeting.

2. Update since the last meeting Thomas Cook Airlines Scandinavia briefly informed about the judgement from the Supreme Court from January 2018 concerning deduction of benefits, in which the company was involved. Thomas Cook Airlines Scandinavia was fully acquitted in the matter. Subsequently, Norwegian referred to the judgement from April 2018 of the Court of Justice of the EU concerning a “wildcat strike” that does not cover the concept of “extraordinary circumstances”.

3. Latest change in practice The Transport, Construction and Housing Authority (TBST) went through the changes in practice since the last meeting:

Change in practice regarding deduction of benefits: On 23 January 2018 the Supreme Court ruled, that an air carrier is able to deduct the benefits, which the passenger is entitled to according to the Package Travel Act, in the compensation the passenger is entitled according to the passenger rights regulation (261/2004). The judgement is an annulment of a judgement from the High Court of Eastern Denmark. TBST changed its practice according to the ruling of the Supreme Court. DAT asked, if the travel companies exchange information with the air carriers for securing knowledge concerning which compensations the passengers receive. Tui and JetTime answered, that there is a cooper- ation regarding exchange of information. Tui pointed out, that the European case law is vague in this area; for instance, the Swedish practice is completely opposite the Danish, since it is not allowed to deduct any other kind of compensation.

Change in practice concerning “wildcat strike”: TBST explained the change in practice according to the judgement of Court of Justice of the EU from 17 April 2018 (C-2018/258). Up until the judgment, TBST has considered strikes, that affect the operation of an operating air carrier, as an extraordinary circum- stance, which could not have been avoided even though all reasonable measures had been taken.

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28 June 2018 This practice has been changed with the judgement from the Court of Justice from the EU. The judgment is quite specific, and states, that a spontaneous absence of a significant part of the flight crew staff (“wildcat strikes”), which stems from the surprise announcement by an operating air carrier of a restructuring of the undertaking, and following a call echoed not by the staff representatives but spontaneous by the workers themselves who place themselves on sick leave, is not covered by the concept of extraordinary circumstances.

TBST will administer the interpretation of extraordinary circumstances in accordance with the judgment.

Thus, TBST will request further information from the air carriers if a flight is delayed or cancelled, because of a strike or absence of a significant part of the aircrew due to illness. The requested information will be used to asses, if the strike or absence is because of a surprise announcement regarding a restructuring of the undertaking.

In general, TBST urged air carriers to send as comprehensive documentation as possible.

TBST will send out a notice on change of practice, which also will be sent out as news on TBST’s website concerning passenger rights (www.flypassager.dk).

4. Case handling in TBST

Issues regarding interpretation of the regulation: TUI raised two questions prior to the meeting, concerning needed documentation of a confirmed reservation and the right to compensation in cases, where a passenger buy his/her own return ticket. Documentation of a confirmed reservation: TUI explained, that the problem mainly occurs when passengers do not keep their tickets. It can be difficult for the company to find out, if the trip was actually bought and used, if the passenger is only able to present the booking of the trip. According to TUI, this documentation is not sufficient, since the payment, in most cases, is made 60 days prior the actual trip and the booking can be made earlier. TBST announced, that the regulation applies to passengers, who have a confirmed booking to the concerned flight, and who are present at check-in, cf. art. 3, para 2, litra a, of the regulation. Several participants expressed, that it is not clear, what the requirement of documentation are, and that the current text on TBST’s website (www.flypassager.dk) can seem misleading.

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28 June 2018 TBST answered, that the requirement of documentation means that passengers must be able to present their ticket or confirmed booking. Furthermore, the document must contain the passenger’s name, des- tination, and booking number. The documentation can be a mail in- cluding a confirmation of the booking, which the passenger received from the air carrier or the travel agency. TBST expressed, that the authority will consider of there is a need to specify the existing phrasing of requirement for documentation on the website. Subsequently, the participants at the meeting discussed case law in relation to access to compensation when rerouting. Some participants asked, if the air carriers should cover the cost of a new ticket, which the passenger decides to buy as a result of an extensive delay, and compensate if the passenger if the passenger chooses to interrupt the journey. TBST answered, that there is no current European case law concerning this issue, and in Denmark, this is founded on a case by case assessment. Hereby, TBST agreed to examine the practice of this issue with the other Nordic countries. Accordingly, TBST urged the participants to submit examples of interpretation of other Member States to future meetings. Air France-KLM asked how TBST assess, if a passenger is entitled to get additional costs in relation to rerouting a journey covered, and what burden of proof there is for the air carriers when examining if there are seats available at alternative flights. TBST answered, that this is based on a consideration of equity. If the passenger has not received any fair offer of rerouting the trip, the passenger is entitled to be compensated for any additional costs he/she has suffered.

TBST’s inspection after art. 14 of the regulation: TBST explained that TBST have inspected the air carriers at two Dan- ish airports in relation to art. 14 of the regulation. The inspection was carried out in order to see, if the passengers have access to sufficient information regarding their rights: the information must be available at the check in-counters, and the written information must be comprehensive. Furthermore, TBST inspected the level of information at the airports. TBST announced that there, in general, was a satisfactory fulfilment of the requirements. However, there was room for improvement – i.e. improvement of complying with the written information from the air carriers, and improving and updating some of the information available at the check in-counters. TBST will conduct inspections with the air carriers at 1-2 airports on a yearly basis.

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28 June 2018 Jet Time pointed out that these inspections are an example of the Member States having quite different requirements to what the air carriers and airports must comply with. Jet Time stressed, that the level of information required is much lower in Sweden than in Den- mark, and that Spain requires much more information. TUI expressed, that the regulation, in this area, is inadequate since it does not take new technology and new communication tools into ac- count. TBST recommended that the air carriers send out links /elec- tronic information, which can be documented, concerning the specific incident.

The NEB-NEB-meeting: TBST gave a short summary from the latest NEB-NEB-meeting. TBST stressed, that several Member States had expressed problems with deciding which Member State handles a complaint when it comes to connecting flights. TBST’s interpretation so far has been that the passenger can file a complaint to the country of origin of the delay. At the meeting the NEB’s agreed on this interpretation. TBST announced to the European Commission, that TBST wants more than one meeting a year, since there is a need for more coordination and exchange of practice between the different authorities. There was a positive response to the issue; however, it has not yet led to an increase in meetings. It is expected that the next meeting will be in the fall.

Processing time of case handling: TBST gave a status of the latest processing time of case handling. It is TBST’s goal to close 75 percent of all cases within three months. To reach this goal, TBST has optimized the case handling processes. Currently 86 percent of all cases is closed within three months. TBST thanked the air carriers for their contribution by following TBST’s normalization of the consultation period for air carriers. However, the increase in number of cases is a challenge. From 2016 to 2017, TBST went from 2.500 cases to 3.300 cases. Furthermore, TBST is aware that the District Court of Copenhagen receives about 6.000 cases yearly.

TUI requested, that TBST would publish the processing time on the website (www.flypassager.dk), which TBST agreed to. TBST intends to compare its processing time with the Authorities’ Nordic colleagues.

In general, TBST hopes that the revision of the regulation will be put on the Council agenda as soon as possible in order to make it clearer.

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28 June 2018 The European Commission has indicated that they want the Council to put it on the agenda after the Brexit-negotiations.

Hereafter, TUI asked if TBST is in dialogue with ‘assistance companies’ that provide judicial assistance – which TBST confirmed. The five or- ganisations that send most cases to TBST are invited to a meeting with TBST twice a year.

Thomas Cook Airlines Scandinavia pointed out, that it was of their opinion that almost all cases from those companies end up in court. TBST notated, that almost half of the cases are from the assistance companies.

Accordingly, Thomas Cook Airlines Scandinavia pointed out, supported by SAS, that the District Court of Copenhagen has tightened their requirement of documentation – especially when it comes to rerouting journeys, and that the air carriers wonders why the court does not take TBST, under oath, when it takes its decision. According to the two air carriers, the court does not use the same practice as TBST.

Hereafter, it was shortly discussed, which city courts would typically receive cases concerning passenger rights. The participants agreed, that it must be the District Court of Copenhagen, and hereafter the District Court of Kolding, Aalborg and Aarhus.

5. AOB

Thomas Cook Airlines Scandinavia asked TBST, which information the air carrier must send to TBST as documentation for the exact time of arrival for a delayed flight. TBST answered ‘door-open-hours’, or alter- natively ‘bloch time-hours’ (where there will be an additional 5 minutes).

Several participants pointed out that the ‘doors open-hours’ are not officially required, which is why not all air carriers put them into rec- ords.

DAT pointed out that the courts – according to the air carrier – often do not accept the air carriers’ ‘door open-hours’, but instead they em- phasises the complainant’s reporting of times from i.e. the website www.flightradar24.com, which often cannot provide with the right information. TBST noted the remarks.

Finally, TBST announced that the next meeting will be in about six months.

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