Vouchers shall reboot European tourism

Tourism and transport: EU’s guidance on how to reboot Europe's tourism by vouchers offered to passengers and travellers as a reimbursement for cancelled package travel and transport services

On 13 May 2020, the European Commission presented a package of guidelines and recommendations to help Member States gradually lift travel restrictions and allow tourism businesses to reopen, after months of lockdown. The package aims to help the EU tourism sector recover from the pandemic, by supporting businesses and ensuring that Europe continues to be the most important destination for visitors.

The Commission's recommendation on vouchers aims to make travel vouchers an attractive alternative to cash reimbursement for consumers;

Under EU rules, travellers have the right to choose between vouchers or cash reimbursement for cancelled transport tickets (plane, train, bus/coach, and ferries) or package travel. While reaffirming this right, the Commission's recommendation aims to ensure that vouchers become a viable and more attractive alternative to reimbursement for cancelled trips in the context of the COVID-19 pandemic. The voluntary vouchers should be protected by the member states against insolvency of the issuer, with a minimum validity period of 12 months, and be refundable after at most one year, if not used. They should also be transferable to another traveller. 

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ECJ Judgment of 30 April 2020:
Passenger can request compensation if airline denies boarding 

Union law is to be interpreted as prohibiting an air carrier from refusing transport to a third-country national on the ground that the authorities of the Member State of destination have refused to allow him to enter its territory without the third-country national having previously been informed of a written, reasoned decision to refuse entry (Art. 13 of Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 on a Community code for the crossing of borders by persons (Schengen Borders Code), in the adapted version No 610/2013 of the European Parliament and of the Council of 26 June 2013).

Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 on common rules for compensation and assistance to passengers in the event of denied boarding and in the event of cancellation or long delay of flights and cancellation of the Regulation (EEC) No 295/91, in particular Article 2 (j), is to be interpreted as meaning that the refusal of an air carrier to transport a passenger, because he has presented insufficient travel documents, provides the passenger with the protection granted in this Regulation from wich he cannot be deprived. In the event of a complaint by this passenger, the competent court must assess, taking into account the circumstances of the individual case, whether there are reasonable grounds for this refusal in accordance with this provision.

Regulation No. 261/2004, in particular Art. 15, is to be interpreted as to be opposed to a clause in the general, previously published operating and/or service conditions of an air carrier, that would limit the liability of this carrier in the event that a passengers is denied, restricted or excluded from transport due to supposedly inadequate travel documents and trying this way to deny any possible compensation claim from the passenger.

ECJ on passenger compensation: 
Wherever you depart, you can also complain.

Place of jurisdiction at departure airport in case of flight delay

Anyone who books a flight with a foreign airline through a travel agency does not have to sue them at their headquarters, but can also go to court at the point of departure, the ECJ says.

The EU Passenger Rights Ordinance also applies in cases where a traveler has booked his flight with a foreign airline through a travel agency and not directly with the latter. This means that he can also sue the airline at the place of jurisdiction at the place of departure. This was decided on 26 March 2020 by the European Court of Justice (ECJ, decision of 26.03.2020, Az. C-215/18).

The initial case was the complaint by a Czech woman who had booked a flight to Iceland from a travel agency. The flight that the office booked should be operated by the Danish airline Primera Air Scandinavia. However, the flight from Prague to Keflavík on April 25, 2013 then started with a delay of more than four hours, which is why travelers in Prague brought an action for a compensation payment of EUR 400 under the Passenger Rights Regulation.

The Prague court concerned had doubts about its own jurisdiction. The reason: According to the EU regulation on jurisdiction for decisions in civil and commercial matters, lawsuits against companies must always be brought in the member state in which they are located - here in Denmark. The other only applies to contractual matters according to the VO, for which a direct contractual relationship between the passenger and the airline should have existed, which was not the case.

For this reason, the court asked the ECJ, by means of a preliminary ruling, whether there was a contractual relationship between the Czech passenger and the Danish air carrier that would enable her to bring her action in Prague.

ECJ: Obligation on behalf of the travel agency justifies "contractual matter"

The Court then felt compelled to clarify a few things. He recalled that the term "operating air carrier", to which the Passenger Rights Regulation refers, includes not only those air carriers that have entered into a contract with the passenger directly, but also those that do this on behalf of a third party - here the travel agency - do that has a contract with the passenger. In this case, the woman can rely on the Passenger Rights Regulation.

Furthermore, the rules regarding jurisdiction for contractual disputes do not presuppose the conclusion of a contract with the passenger. However, the defendant must have made a voluntary commitment. Such is also the assumption of a travel service and the associated obligations from the Passenger Rights Regulation through the conclusion of a contract with the travel agency.

The European Court of Justice decided that the action for compensation under the VO should be regarded as a lawsuit arising from a contractual matter. Thus, the woman can file her lawsuit against the airline before the court of the place of departure, here in Prague.

Translated from the German Online magazine "Legal Tribune Online", March 26th, 2020, https://www.lto.de/persistent/a_id/41097/ (retrieved on: April 5th, 2020)

Link to the decision of the EJC (not yet available in English, but in most other languages as French and German etc.): http://curia.europa.eu/juris/celex.jsf…