SmartLynx Airlines Estonia OÜ Lennujaama tee

SmartLynx Airlines Estonia OÜ
Lennujaama tee 13
Tallinn 11101
[email protected]
[email protected]
[email protected]
28th of March 2014 No EK-TRT-2014-00040
PRECEPT No EK-TRT-2014-00040
Precept prepared by: Anne Reinkort, head of Market Surveillance Department of the
Consumer Protection Board of Estonia
Date and place of precept: 28.03.2014; Rahukohtu 2, 10130 Tallinn
Addressee of the precept: air carrier SmartLynx Airlines Estonia OÜ (12264460),
Lennujaama tee 13, Tallinn 11101
RESOLUTION:
With the precept:
1) I draw your attention to the violation of Article 4(3) and Article 7 of the Regulation
(EC) No 261/2004 which states that if boarding is denied to passengers against their will,
the operating air carrier shall immediately compensate them in accordance with Article
7 and assist them in accordance with Articles 8 and 9 – in current case the passengers
were denied boarding on 30th of June 2013 and the compensation under the Article 7 of
the Regulation (EC) No 261/2004 has not been paid;
2) I oblige you to take necessary measures for the legal continuation of the further
activity – to pay a compensation for the passengers who were denied boarding in
amount of 400 Euros per pax or present documentary evidence proving that the denial of
boarding was justified due to the conditions set out in Article 3(2)(a).
Precept has obligatory force and must be implemented not later than 11th of April 2014.
Notify the Consumer Protection Board of implementation of the precept by e-mail
([email protected]) or ordinary mail (Rahukohtu 2, 10130 Tallinn).
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PROCEDURE:
The Consumer Protection Board of Estonia has received a complaint from consumers
(complaint No 6-1/14-000991-002) regarding flight MYX565 from Tallinn to Varna on 30th
of June 2013 that was operated by SmartLynx Airlines Estonia OÜ (SmartLynx) and was a
part of package organised by Novatours OÜ. According to the complaint the passengers were
denied boarding on flight Tallinn-Varna on 30th of June 2013 although the passengers had
confirmed reservation on flight concerned and presented themselves for check-in duly. The
passengers were offered re-routing to their final destination via Moscow and Sofia for the
next day, 1st of July 2013, but the passengers refused alternative route due to the unreasonable
suffering to passengers. The passengers are requesting for compensation for two persons
under Articles 4(3) and 7 of the Regulation (EC) No 261/2004 in total amount of 800 euros
(flight distance from Tallinn to Varna is 1817km).
The Consumer Protection Board of Estonia forwarded the complaint to SmartLynx on 3rd of
February 2014 and asked to submit the air carrier’s opinion and contests by 17th of February
2014. SmartLynx responded on 17th of February 2014 by stating that since the passengers
refused alternative route and were reimbursed by the tour operator, they are not entitled to
compensation.
Since the Consumer Protection Board of Estonia does not agree with the explanations given
by SmartLynx and denial of boarding was not justified pursuant to Article 3(2)(a), we are on
position that SmartLynx should pay compensation to the abovementioned passengers.
APPLICABLE LAWS:
1. Article 4(3) of the Regulation (EC) No 261/2004
2. Article 7(1)(b) of the Regulation (EC) No 261/2004
3. subsection 1¹ of § 603 of the Aviation Act according to which the director general of
the Consumer Protection Board of Estonia or an authorised person has the right to
make a precept to the air carrier with a claim for compensation and assistance to
passengers in the event of denied boarding and of cancellation or long delay of flights.
EXPLANATIONS OF THE CONSUMER PROTECTION BOARD ABOUT THE
PRECEPT:
Article 3(6) of the Regulation No 261/2004 excludes the application of the Regulation No
261/2004 only in cases where the package is cancelled due to other reasons than the
cancellation of flight. Thus, in all other instances it is possible to apply Regulation No
261/2004 and this approach is in consent with the Council Directive 90/314/EEC (Directive
90/314/EEC) and judgements of the Court of Justice of the European Union in joined cases C402/07 and C-432/07 (Sturgeon) and in joined cases C-581/10 and C-629/10 (Nelson).
Pursuant to Article 3(2)(a) of Regulation No 261/2004 this regulation shall apply on the
condition that passengers: (a) have a confirmed reservation on the flight concerned and,
except in the case of cancellation referred to in Article 5, present themselves for check-in, —
as stipulated and at the time indicated in advance and in writing (including by electronic
means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is
indicated, — not later than 45 minutes before the published departure time. Thus, the
Regulation will apply when the passengers have complied with the conditions set out in
aforementioned article.
Arising from Article 2(j) of the Regulation No 261/2004 denied boarding means a refusal to
carry passengers on a flight, although they have presented themselves for boarding under the
conditions laid down in Article 3(2), except where there are reasonable grounds to deny them
boarding, such as reasons of health, safety or security, or inadequate travel documentation.
According to Article 4(3) of Regulation No 261/2004 if boarding is denied to passengers
against their will, the operating air carrier shall immediately compensate them in accordance
with Article 7 and assist them in accordance with Articles 8 and 9.
In current case the passengers had confirmed reservation on the flight and they presented
themselves for check-in duly. We would like to remind you that in case of denied boarding
the right to compensation is automatic and the right does not depend on whether the
passengers accepted the alternative route or not or claims for reimbursement. The air
carrier is obliged to pay compensation and assist them in accordance with Articles 8 and
9 (offer alternative route and offer care). Article 8(1) of the Regulation states that where
reference is made to this Article, passengers shall be offered the choice between: (a) —
reimbursement within seven days, by the means provided for in Article 7(3), of the full cost
of the ticket at the price at which it was bought, for the part or parts of the journey not made,
and for the part or parts already made if the flight is no longer serving any purpose in relation
to the passenger's original travel plan, together with, when relevant, — a return flight to the
first point of departure, at the earliest opportunity; (b) re-routing, under comparable
transport conditions, to their final destination at the earliest opportunity; or (c) re-routing,
under comparable transport conditions, to their final destination at a later date at the
passenger's convenience, subject to availability of seats. We would like to accentuate that an
alternative route offered to the passengers by SmartLynx for the next day consisting of three
flights (Tallinn-Moscow, Moscow-Sofia, Sofia-Varna) can hardly be considered reasonable
and comparable to original route (Article 8(1)(b)). The return of package price is considered
as reimbursement under Article 8(1)(a), but as already mentioned the right to compensation is
automatic and this right does not depend on whether the passengers claimed for and
received reimbursement.
In addition, we are explaining that the Regulation No 261/2004 does not provide for
extraordinary circumstances in the case of denied boarding, hence, for example, shift to
smaller aircraft cannot be considered as extraordinary circumstances and the air carrier cannot
base its denial to pay compensation on the occurrence of extraordinary circumstances. Court
of Justice of European Union has stressed the same approach in judgement C-22/11 (Finnair)
by saying that it is to be noted that, unlike Article 5(3) of Regulation No 261/2004, Articles
2(j) and 4 of that regulation do not provide that, in the event of ‘denied boarding’ owing to
‘extraordinary circumstances’ which could not have been avoided even if all reasonable
measures had been taken, an air carrier is exempted from its obligation to compensate
passengers denied boarding against their will. It follows that the EU legislature did not intend
that compensation may be precluded on grounds relating to the occurrence of ‘extraordinary
circumstances’. Hence, when the denial of boarding cannot be justified with the conditions set
out in Article 3(2) of Regulation No 261/2004, the compensation must be paid.
Pursuant to Article 7(1)(b) where reference is made to this Article, passengers shall receive
compensation amounting to EUR 400 for all intra-Community flights of more than 1 500
kilometres, and for all other flights between 1 500 and 3 500 kilometres. The distance
between Tallinn and Varna is 1817km.
Consideration 22 of preamble of the Regulation (EC) No 261/2004 which establishes the
common rules to passengers in the case of denied boarding, cancelling the flights or long
delay and compensation and help in these cases, provides that the member states should
ensure that the air carriers comply generally with this Regulation and determine an institution
checking this compliance. In the Republic of Estonia, according to the subsection 1¹ of §603
of Aviation Act, this institution is the Consumer Protection Board.
The Consumer Protection Board of Estonia is convinced that the air carrier SmartLynx should
pay the compensation according to the article 7(1)(b) of the Regulation (EC) No 261/2004,
unless the air carrier can prove that the denial of boarding was justified with the conditions set
out in Article 3(2). So far the compensation has not been paid to the passengers.
WARNING OF PENALTY PAYMENT:
If this precept is not complied with within the timeframe indicated, the Consumer Protection
Board of Estonia will apply a penalty payment in amount of 640 (six hundred forty) euros in
accordance with section 2¹ of § 603 of the Aviation Act.
This penalty payment can be applied repeatedly - until the objective sought by a precept is
achieved. If SmartLynx fails to pay the penalty payment, an execution proceeding may be
held. In the event of an execution proceeding SmartLynx will be obliged to pay not only the
penalty payment, but also bailiff’s fee and other enforcement costs.
REFERENCE TO CHALLENGE:
A challenge concerning a precept shall be filed:
- to the Consumer Protection Board of Estonia within thirty days as of the day when a person
becomes or should become aware of the challenged administrative act according to § 75 of the
Administrative Procedure Act or
- to the Tallinn Administrative Court within thirty days after the date on which the
administrative act was notified to the applicant according to subsection 1 of § 46 of the Code
of Administrative Court Procedure.
Challenging a precept does not suspend the obligation incumbent on the obligated party to
comply therewith nor does a challenge suspend the necessary implementation of measures.
SENDING OF PRECEPT:
Precept shall be sent with an issue notice and registered letter on 28.03.2014 to the legal
address and by e-mail at address’ [email protected], [email protected] and [email protected].
SIGNATURE OF THE PERSON HAVING PREPARED THE PRECEPT:
/digitally signed/
Anne Reinkort
Head of Market Surveillance Department