Silly season is over: Transavia sues EUclaim and Consumentenbond

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The silly season is over. Airline bosses are returning from their holidays and are dismayed that their nightmares (Air Passenger Rights, Sturgeon, EUclaim) have not disappeared. Some got even worse.

In early August, claim handler EUclaim and the Dutch consumer organisation Consumentenbond launched a joint website called ‘Flight Claim Service’ (in Dutch). The website gives an up-to-date overview of delayed flights. With a couple of clicks, duped travellers can submit their claims.

Not really something that lowers the temperature in the airlines' boardrooms. Transavia’s CEO Bart Gräber decided to jump and to sue EUclaim and the Consumentenbond before a Dutch court. The case will be heard on 14 September. Transavia is a Dutch based low-cost airline and part of the Air France-KLM group.

According to Gräber, the information provided by EUclaim and the Consumentenbond is misleading because it suggests that passengers are entitled to Sturgeon compensation whereas this would not be the case in two third of the listed Transavia flights. Gräber argues that this is ‘misleading advertising causing unnecessary damage to the Transavia brand’.

Hendrik Noorderhaven, owner and founder of EUclaim, is confident about the outcome of the case. He says that flights do not appear on the list if there are extraordinary circumstances such as strikes or local unrest. Moreover, airlines are free to give their view. The point is, says Noorderhaven, that he disagrees with airlines when it comes to technical problems: ‘These usually do not amount to extraordinary circumstances.’

Indeed, in its Wallentin decision, the European Court limited the possibilities for airlines to invoke extraordinary circumstances in case of a technical problem. It held that a technical problem is not covered by the concept of ‘extraordinary circumstances’, unless that problem stems from events that are not inherent in the normal exercise of the activity of the air carrier and are beyond its actual control. Extraordinary circumstances can occur, ‘for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism.’

This decision implies that technical problems amount to extraordinary circumstances in exceptional cases only. National courts in the Netherlands and other countries have consistently followed this European line. An overview published by the German tourist organisation ADAC shows that German courts considered technical problems to be an extraordinary circumstance in only 2 out of 18 cases (and one of these two decisions was probably incorrect).

As EUclaim's and Consumentenbond’s statements follow the European and national case law it is hard to see how this can give rise to a claim for damages to the Transavia brand. Obviously, there can be different opinions about the entitlement to compensation in specific cases but it is rather doubtful this would justify a gagging order against consumer organisations and ban them from giving their opinion about a delayed flight until a court of law has given its verdict. Moreover, EUclaim and Consumentenbond do not target Transavia but list all delays of all airlines relevant to their potential customers.

The good news is, of course, that Transavia in fact admits that one third of the assertions of EUclaim and the Consumentenbond are correct. Passengers on these flights can be confident that Transavia will promptly pay them their Sturgeon compensation.

The case shows that airlines still have some way to go to settle in the world of Air Passenger Rights. Quite a few have also come a long way: until not so long ago, many airlines advertised flight fares without airport charges and fuel surcharges thus giving passengers a wrong impression about the price they had to pay for their flight. Talking about misleading advertising...