Air Passenger Rights: Misleading advertising by Transavia, other airlines and the Commission

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Hard times for Dutch airline Transavia. Last week, it lost its case against EUclaim (see my blog post of September 2011): a Dutch Court of Appeal decided that EUclaim is not misleading passengers by posting on its website delayed and cancelled Transavia flights that may entitle passengers to compensation. This week, the Dutch advertising watchdog held that Transavia misleads its customers by not mentioning right of passengers to compensation in case of a long delay.

The first case was decided as I predicted. The Court held that EUclaim is entitled to list delayed and cancelled flights on its website, including those from Transavia, because the website makes sufficiently clear that compensation is likely but not guaranteed. Different opinions as to the right to compensation in case of long delay do not justify a gagging order for EUclaim, particularly not where EUclaim carefully assesses, on the basis of a broad range of objective data, whether or not extraordinary circumstances occurred.
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This litigation seemed to have been more inspired by bothering EUclaim than by a real chance to win the case. EUclaim is a pain in airlines’ bosses assess. Airlines love individual passengers, because they are harmless and easy to fob off (easyFoboff). But when passengers bundle their legal power through claim handlers like EUclaim, airlines are dismayed they have to face the full force of the law.

This week, in an interesting turn of events, the Dutch advertising watchdog (‘Reclame Code Commissie’, RCC) held that Transavia itself was misleading its passengers. The reason? In its customer information, Transavia says that in case of long delay passengers are entitled to care and a refund but it ignores the right to compensation following the ECJ’s decision in Sturgeon.

The RCC considered that Transavia’s information is incomplete and that the airline hides essential information. As this missing information can cause the average consumer to take a transactional decision he would not have taken otherwise, the RCC concluded that Transavia’s information is misleading and therefore unfair. The airline said it will appeal the decision.

The EU wide relevance of the decision is that the Dutch advertising code is based on the European Unfair Commercial Practices Directive (UCPD). Article 6(1)(g) UCPD clearly lists as ‘the consumer’s rights’ as the material information the trader must provide.
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It goes without saying that the decision does not only regard Transavia. Many if not most airlines omit to inform passengers about their right to compensation in case of long delay (if they inform passengers at all). Clearly, the European Commission should take the initiative for an enforcement action by the national consumer authorities. The problem is, however, that also the European Commission is misleading passengers. Over two years after Sturgeon, their airport billboards still fail to mention the right to compensation in case of long delay. Not that this will help the airlines very much because the failures of the Commission (not being a trader anyway) cannot serve as justification for airlines’ failures...

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Know your Air Passenger Rights when you need them