Interesting Court Decision In Germany - Passenger does not need to fly last leg
Feb 17, 2019, 7:24 am
#332
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Just for accuracy, I do not believe that what you have described is necessarily a stopover. As I understand the position (subject to correction) for IATA ticketing purposes, a stop of less than 24 hrs is actually a transfer. A stop of more than 24 hrs is a stopover. I am not sure what difference that makes to the argument, but best to be accurate in any event if the argument depends on the definition of a specific word.
Feb 17, 2019, 7:25 am
#333
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I am not clear that the dishonesty element that is required for there to be fraud would be present if the person genuinely believed, rightly or wrongly, the term to be unfair but, in any event, let us not muddy the water with things which are not relevant to the discussion: this is not a discussion on what constitutes or does not constitute fraud in English law.
Feb 17, 2019, 7:32 am
#334
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But to give you an example, if you’re able to explain the higher intermediate point rule in single sentence to me, that Joe or Jane Bloggs can understand, then I’ll agree with you!
Feb 17, 2019, 7:56 am
#335
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But the risk of it should make folk very careful about thinking of doing this.
Feb 17, 2019, 7:59 am
#336
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In any case, this is not relevant. A seller is not obligated to explain how it arrived at a price to avoid fraud - that is not what fraud is. If Starbucks can't explain to my satisfaction how it arrived at the price for my morning cuppa, is that now fraud under this new standard? Do I have the right to argue my point of view and force sellers to haggle over everything?
Feb 17, 2019, 8:13 am
#337
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Feb 17, 2019, 8:40 am
#338
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I am not clear that the dishonesty element that is required for there to be fraud would be present if the person genuinely believed, rightly or wrongly, the term to be unfair but, in any event, let us not muddy the water with things which are not relevant to the discussion: this is not a discussion on what constitutes or does not constitute fraud in English law.
I'm curious as to what specific legal obligation you consider the airline is in breach of. It would assist if you could reference the pertinent legislation or case law.
Feb 17, 2019, 9:35 am
#339
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Addressing the common law associated with railway travel:
If a passenger misuses his ticket by breaking the conditions on which it was issued to him, he breaks his contract and may be liable to pay the fare or part of it over again.
Whilst most ticket types permit the passenger to stop his journey at a station short of that shown on his ticket, the Train Company may in some cases at certain times charge a higher fare for the shorter journey. In those cases, the passenger must pay the appropriate fare for the journey actually made. The cases for this are, GN Ry v Winder [1892] 2 Q.B. 595; GN Ry v Palmer [1895] 1 Q.B. 862. I can't see that either of these cases have been changed by subsequent courts, in the absence of which there is no reason to believe that they are not still binding precedent.
At common law a passenger has no right to break his journey at an intermediate station and resume it later. See Ashton v L & Y Ry [1904] 2 K.B. 313; Bastaple v Metcalfe [1906] 2 K.B. 288.
If a passenger knowingly does takes advantage in this manner, he or she may be guilty of a criminal offence under s.11 of the Fraud Act 2006, an offence that carries a maximum sentence of five yeas.
I see a few posters saying that this is a breach of this, that or the other consumer protection legislation. For my part I know of no judicial interpretation of this protective legislation that would cover this. If there are any that could point me to such cases, I'd certainly be interested to read them.
Now the forgoing all refers to common law, clearly BA is a liberty to modify the common law with their T&Cs and I am really not that interested in sitting down and reading these.
I would however make two points, the first is that if you have a return ticket from A to C via B, and you stop at B, there is a high risk you will be asked to pay for a return ticket from A to B, before you can board at B to go back to A.
If a passenger misuses his ticket by breaking the conditions on which it was issued to him, he breaks his contract and may be liable to pay the fare or part of it over again.
Whilst most ticket types permit the passenger to stop his journey at a station short of that shown on his ticket, the Train Company may in some cases at certain times charge a higher fare for the shorter journey. In those cases, the passenger must pay the appropriate fare for the journey actually made. The cases for this are, GN Ry v Winder [1892] 2 Q.B. 595; GN Ry v Palmer [1895] 1 Q.B. 862. I can't see that either of these cases have been changed by subsequent courts, in the absence of which there is no reason to believe that they are not still binding precedent.
At common law a passenger has no right to break his journey at an intermediate station and resume it later. See Ashton v L & Y Ry [1904] 2 K.B. 313; Bastaple v Metcalfe [1906] 2 K.B. 288.
If a passenger knowingly does takes advantage in this manner, he or she may be guilty of a criminal offence under s.11 of the Fraud Act 2006, an offence that carries a maximum sentence of five yeas.
I see a few posters saying that this is a breach of this, that or the other consumer protection legislation. For my part I know of no judicial interpretation of this protective legislation that would cover this. If there are any that could point me to such cases, I'd certainly be interested to read them.
Now the forgoing all refers to common law, clearly BA is a liberty to modify the common law with their T&Cs and I am really not that interested in sitting down and reading these.
I would however make two points, the first is that if you have a return ticket from A to C via B, and you stop at B, there is a high risk you will be asked to pay for a return ticket from A to B, before you can board at B to go back to A.
Ashton and Bastaple are about breaking a journey and not really applicable in the context of dropping a final sector (the closest equivalent would be, I guess, booking a multi sector flight on specific dates, deciding to overstay at an intermediate point, then turning up at the airport demanding to be carried for the next sector under your original ticket. That’s obviously not going to work).
I don’t see that any of those cases advances the analysis of BA’s COC when applied to a dropped last sector. Winder, which is a short travel case, rested on the consequence of misuse of the ticket being (under the terms of carriage) that the entire ticket was forfeited. On that basis, in the absence of any ticket, the railway company was able to claim for the price of the service it provided. BA’s COC invalidate your ticket if you misuse it but expressly make its ability to recover a revised fare contingent on the passenger actually having to travel (cl 3c5 “we will not carry you until ... you have paid the difference”). Which is a point you acknowledge in the first of your two additional points.
Feb 17, 2019, 9:39 am
#340
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But in the context of this discussion (skipping the last segment), you are intending to fly - to a different destination from where you were ticketed. You are looking to change your itinerary from how it was ticketed.
Again, if you are so sure I am wrong, go ahead and test it out! As I said earlier, if you are so sure you are right, buy an ex-EU, try to board in LHR and start legal action against BA because they have cancelled the remaining segments, or to get the difference back when they re-price it from LHR. Good luck! Maybe I will be proven wrong with the final court decision. But I think there is a good reason why no one here has tried to do that, despite the confidence in the arguments being put forth.
Again, if you are so sure I am wrong, go ahead and test it out! As I said earlier, if you are so sure you are right, buy an ex-EU, try to board in LHR and start legal action against BA because they have cancelled the remaining segments, or to get the difference back when they re-price it from LHR. Good luck! Maybe I will be proven wrong with the final court decision. But I think there is a good reason why no one here has tried to do that, despite the confidence in the arguments being put forth.
The airline plainly has remedies with teeth if I drop the first sector of an ex-EU ticket, if I still want to use the second and third sectors. But the position is rather different if I were to drop the fourth and final sector.
Feb 17, 2019, 10:02 am
#341
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How does my dropping the first sector prove anything in the context of a discussion about the remedies available to a carrier for dropping the last sector?
The airline plainly has remedies with teeth if I drop the first sector of an ex-EU ticket, if I still want to use the second and third sectors. But the position is rather different if I were to drop the fourth and final sector.
Seems like the best way to affirmatively test that is to skip the first sector, so there is demonstrable harm to the passenger when the airline cancels / re-prices the remaining sectors.
Feb 17, 2019, 10:10 am
#342
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Right, but I thought the premise here is that the passenger should be free to skip any sector because s/he would then be "consuming less than what was paid for", and that the CoC provisions prohibiting skipping a segment are unenforceable.
Seems like the best way to affirmatively test that is to skip the first sector, so there is demonstrable harm to the passenger when the airline cancels / re-prices the remaining sectors.
Seems like the best way to affirmatively test that is to skip the first sector, so there is demonstrable harm to the passenger when the airline cancels / re-prices the remaining sectors.
Feb 17, 2019, 11:10 am
#343
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Mar 13, 2019, 6:00 am
#344
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Recent interview with main representative in lufthansa case
I found a very interesting interview with Dr. Matthias Böse (law firm Franz in Dusseldorf), the main authorised representative in this case on German frequent flyer forum frankfurtflyer. (February, 17 2019)
The interview provides further detailed background, also with regards to Lufthansa's appeal.
Dr. Boese also talks about potential consequences for the European market and about the chances for airlines closing frequent flyer accounts.
(I have translated the text from German into English/ some parts amended to English and supporting links and necessary descriptions of German abbreviations added)
Q: Could you give us a brief description of the specific case in terms of distance and travel class?
We are also interested, if you know, how the specific price difference would have been with a departure from Germany.
The client flew in business class from Oslo via Frankfurt to Seattle and back. In Frankfurt, he got out and flew on a separate - paid - ticket from LH to Berlin. The Berlin ticket was booked about a month after the first flight because my client's travel plans changed. I can not tell you the price difference for C-tickets from Scandinavia, In the specific case, the surcharge for a return flight ending in Frankfurt would have been around 2,100.00 € , the amount which Lufthansa is now suing my client for.
Q: The first instance has already been won by you. Nevertheless, can you briefly tell us why the Lufthansa claim is inadmissible from your point of view?
Based on the AGB law (general Terms and Conditions law), clauses which are intransparent, surprising or otherwise disadvantageous one-sided, are ineffective. In our view, the relevant historic AGB clause (relevant for the specific case before the update) of Lufthansa is ineffective for several reasons:
- It is intransparent, because the resulting surcharge for the passenger at the conclusion of the contract is not clear (and in this case, it was a massive surcharge)
- It's surprising, because those who take less of the offered service do not expect to pay more for it
- It penalises the passenger disproportionately, as it also comes into force when the passenger involuntarily does not use the last leg (illness, but also - as an example - because the inbound flight was delayed)
- The clause is written un-precisely/inaccurately as other parts of the the terms and conditions include regulations which contradict the provision
The court only had to take a single point in order to dismiss the claim and in the first instance based its decision on the lack of transparency of the regulation.
Q: With which counter-arguments did Lufthansa appeal?
The grounds for appeal are not yet available. In the first instance, Lufthansa has focused on BGH's (German Federal High Court) cross-ticketing decision, according to which airline tariff systems are in principle worthy of protection and the airline may require in its terms and conditions that a passenger forfeiting the first segment of a ticket must pay an additional charge to use the rest of the ticket. On the one hand, this is not comparable to the recalculation for not taking the last leg of a ticket. In this case, someone boards a connecting flight and suddenly has to pay x times the actual fare. In the cross-ticketing case, it was just that the airline said: Your previously paid money is now simply gone, if you do not pay the supplement. The "damage" was therefore limited to the already paid ticket price. Overall, I had the impression that the lawsuit of Lufthansa was operated quite loveless.
Q: The procedure takes place in Germany, but the ticket was bought abroad. Why is this? Does the different jurisdiction in different countries play a role for the passenger?
The court has jurisdiction under the EuGVVO (Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) and has to apply German law in accordance with the Rome I Regulation. That depends on the passenger's domicile and the the airline's place of business. And yes: German law is very consumer friendly.
Q: Is there any information on why this passenger was chosen as the "sample process"?
Since my client had already been represented by me before the lawsuit was filed. I might have chosen a simpler case instead of Lufthansa. I can only assume that the fact that there were two tickets in the system at the same time of travel, that this has attracted particular attention. Had our client driven from Frankfurt by train to Berlin (and had not paid Lufthansa a second ticket), it would probably not have come to this action, which is also unique to my information so far.
(shl comment: some reports in other forums suggest, that the client's flight is based on this special offer. But this is not confirmed)
Q: f Lufthansa wants to avoid cheap tickets being booked from abroad, would not the logical step be to introduce residence tickets that prohibit citizens with German citizenship from buying cheap tickets abroad?
On the one hand, I see legal hurdles here that are likely to prevent such procedures in the EU internal market. On the other hand, it is also a practical problem: How can the individual circumstances - with certainty - be examined and judged during the booking process? An airline operating in this way would also have a strong competitive problem, since it is unlikely that such rates will be advertised in popular metasearch engines and also online travel agencies without further additions. Lufthansa would simply look bad in the competition.
Q: In the US, there is currently a similar topic, since the airlines act against so-called hidden city bookings. Here, the passengers are threatened with the closure of their frequent flyer accounts, if they make no additional payment. Is this also a feasible procedure in Europe?
To stay with the example of Lufthansa: Miles & More GmbH is an independent company and can generally terminate a contract with a mileage collector properly.
Whether the notice period of four weeks for stateless participants, as currently in Article. 3.1.1. of the Miles & More terms and conditions provided is lawful, I consider very questionable. If you sit on a well-filled upholstery, you probably will not be able to use up those miles in no time.
Also in the case of a non-reasonably termination - the question should be asked, if not perhaps personal data of the passenger have made its way to Miles & More GmbH, which should not have happened under the EU data protection regulation.
In short:
The theoretical possibility exists, but in my view such action is rather unlikely for a professionally operating DAX 30 company, and also in light of the already very high media interest on this case from around the world.
Q Does Lufthansa want to set an example with this case?
That may have been the idea in the beginning. However, when the court at first instance made it clear that the lawsuit was unlikely to succeed, Lufthansa was eager to save time and withdraw the lawsuit, presumably to avoid what happened: negative publicity. But my client has contradicted that in order to ensure legal certainty here.
The interview provides further detailed background, also with regards to Lufthansa's appeal.
Dr. Boese also talks about potential consequences for the European market and about the chances for airlines closing frequent flyer accounts.
(I have translated the text from German into English/ some parts amended to English and supporting links and necessary descriptions of German abbreviations added)
Q: Could you give us a brief description of the specific case in terms of distance and travel class?
We are also interested, if you know, how the specific price difference would have been with a departure from Germany.
The client flew in business class from Oslo via Frankfurt to Seattle and back. In Frankfurt, he got out and flew on a separate - paid - ticket from LH to Berlin. The Berlin ticket was booked about a month after the first flight because my client's travel plans changed. I can not tell you the price difference for C-tickets from Scandinavia, In the specific case, the surcharge for a return flight ending in Frankfurt would have been around 2,100.00 € , the amount which Lufthansa is now suing my client for.
Q: The first instance has already been won by you. Nevertheless, can you briefly tell us why the Lufthansa claim is inadmissible from your point of view?
Based on the AGB law (general Terms and Conditions law), clauses which are intransparent, surprising or otherwise disadvantageous one-sided, are ineffective. In our view, the relevant historic AGB clause (relevant for the specific case before the update) of Lufthansa is ineffective for several reasons:
- It is intransparent, because the resulting surcharge for the passenger at the conclusion of the contract is not clear (and in this case, it was a massive surcharge)
- It's surprising, because those who take less of the offered service do not expect to pay more for it
- It penalises the passenger disproportionately, as it also comes into force when the passenger involuntarily does not use the last leg (illness, but also - as an example - because the inbound flight was delayed)
- The clause is written un-precisely/inaccurately as other parts of the the terms and conditions include regulations which contradict the provision
The court only had to take a single point in order to dismiss the claim and in the first instance based its decision on the lack of transparency of the regulation.
Q: With which counter-arguments did Lufthansa appeal?
The grounds for appeal are not yet available. In the first instance, Lufthansa has focused on BGH's (German Federal High Court) cross-ticketing decision, according to which airline tariff systems are in principle worthy of protection and the airline may require in its terms and conditions that a passenger forfeiting the first segment of a ticket must pay an additional charge to use the rest of the ticket. On the one hand, this is not comparable to the recalculation for not taking the last leg of a ticket. In this case, someone boards a connecting flight and suddenly has to pay x times the actual fare. In the cross-ticketing case, it was just that the airline said: Your previously paid money is now simply gone, if you do not pay the supplement. The "damage" was therefore limited to the already paid ticket price. Overall, I had the impression that the lawsuit of Lufthansa was operated quite loveless.
Q: The procedure takes place in Germany, but the ticket was bought abroad. Why is this? Does the different jurisdiction in different countries play a role for the passenger?
The court has jurisdiction under the EuGVVO (Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) and has to apply German law in accordance with the Rome I Regulation. That depends on the passenger's domicile and the the airline's place of business. And yes: German law is very consumer friendly.
Q: Is there any information on why this passenger was chosen as the "sample process"?
Since my client had already been represented by me before the lawsuit was filed. I might have chosen a simpler case instead of Lufthansa. I can only assume that the fact that there were two tickets in the system at the same time of travel, that this has attracted particular attention. Had our client driven from Frankfurt by train to Berlin (and had not paid Lufthansa a second ticket), it would probably not have come to this action, which is also unique to my information so far.
(shl comment: some reports in other forums suggest, that the client's flight is based on this special offer. But this is not confirmed)
Q: f Lufthansa wants to avoid cheap tickets being booked from abroad, would not the logical step be to introduce residence tickets that prohibit citizens with German citizenship from buying cheap tickets abroad?
On the one hand, I see legal hurdles here that are likely to prevent such procedures in the EU internal market. On the other hand, it is also a practical problem: How can the individual circumstances - with certainty - be examined and judged during the booking process? An airline operating in this way would also have a strong competitive problem, since it is unlikely that such rates will be advertised in popular metasearch engines and also online travel agencies without further additions. Lufthansa would simply look bad in the competition.
Q: In the US, there is currently a similar topic, since the airlines act against so-called hidden city bookings. Here, the passengers are threatened with the closure of their frequent flyer accounts, if they make no additional payment. Is this also a feasible procedure in Europe?
To stay with the example of Lufthansa: Miles & More GmbH is an independent company and can generally terminate a contract with a mileage collector properly.
Whether the notice period of four weeks for stateless participants, as currently in Article. 3.1.1. of the Miles & More terms and conditions provided is lawful, I consider very questionable. If you sit on a well-filled upholstery, you probably will not be able to use up those miles in no time.
Also in the case of a non-reasonably termination - the question should be asked, if not perhaps personal data of the passenger have made its way to Miles & More GmbH, which should not have happened under the EU data protection regulation.
In short:
The theoretical possibility exists, but in my view such action is rather unlikely for a professionally operating DAX 30 company, and also in light of the already very high media interest on this case from around the world.
Q Does Lufthansa want to set an example with this case?
That may have been the idea in the beginning. However, when the court at first instance made it clear that the lawsuit was unlikely to succeed, Lufthansa was eager to save time and withdraw the lawsuit, presumably to avoid what happened: negative publicity. But my client has contradicted that in order to ensure legal certainty here.
Last edited by Shl; Mar 13, 2019 at 7:39 am
Jun 12, 2019, 5:43 am
#345
Original Poster
Join Date: Aug 2015
Programs: BA Gold/ Star Alliance Gold
Posts: 399
AGCM RULING - Passangers can skip segments in booking (as long as ticket is booked in Italy)
Italian AGCM (competition authority) mandated that airlines allow passengers to skip segments at no cost, as long as they notify the airline in a timely manner.
However, while theoretically this applies to all airlines operating within Italy, American Airlines and British Airways have chosen not to respect the authority’s decree. These carriers risk fine for their actions, but have taken the position that the risk of fine is a better alternative than rolling over to passenger manipulation.
See full article for reference
Italian AGCM (competition authority) mandated that airlines allow passengers to skip segments at no cost, as long as they notify the airline in a timely manner.
However, while theoretically this applies to all airlines operating within Italy, American Airlines and British Airways have chosen not to respect the authority’s decree. These carriers risk fine for their actions, but have taken the position that the risk of fine is a better alternative than rolling over to passenger manipulation.
See full article for reference