Decision of the European Ombudsman on complaint 1475/2005/(IP)GG against the European Commission

Available languages: en
  • Case: 1475/2005/(IP)GG
    Opened on 03 May 2005 - Draft recommendation on 21 Dec 2006 - Decision on 21 Jun 2007
  • Institution(s) concerned: European Commission
  • Field(s) of law: People's Europe
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB],Fairness [Article 11 ECGAB]

Strasbourg, 21 June 2007

Dear Sirs,

On 6 April 2005, acting on behalf of the European Regions Airline Association, you submitted a complaint against the European Commission to the European Ombudsman. This complaint concerned the material the Commission had published in order to inform travellers of their rights under Regulation 261/2004. On the same day, the International Air Carrier Association submitted a complaint concerning the same issue (complaint 1476/2005/(BB)GG).

On 3 May 2005, I forwarded the complaint to the President of the Commission, asking for an opinion to be submitted by 31 July 2005. You were informed accordingly the same day.

In an e-mail sent on 2 August 2005, you asked whether the Commission's opinion had been received. On 5 August 2005, the Commission informed me that its opinion would be delayed. My Office informed you accordingly in an e-mail that was sent to you on 8 August 2005. In your reply sent the same day, you inquired whether the Ombudsman would contact the Commission in order to point out the delay. In my absence on vacation, my Office informed you on 10 August 2005 that it would be necessary to await my return before taking any further action.

On 6 September 2005, the Commission informed me that the opinion would be submitted shortly. In a letter sent on 16 September 2005, I granted the Commission an extension of time until 30 September 2005. You were informed accordingly the same day.

The Commission sent its opinion on 3 October 2005. I forwarded it to you on 10 October 2005 with an invitation to make observations, which you sent on 21 November 2005.

On 6 January 2006, you sent an e-mail inquiring whether there had been any further developments on the case.

On 13 February 2006, Mr Clarke, the Director in charge of Air Transport Policy at ERA, rang Ms Palumbo, the Legal Officer in charge of the case, in order to suggest a meeting. Ms Palumbo advised Mr Clarke that he should best submit his suggestion in writing. In an e-mail sent on 14 February 2006, Mr Clarke confirmed that he was willing to come and see the Ombudsman, if this should be considered useful.

On 16 February 2006, considering that it would make sense to have one Legal Officer handle both your case and the parallel case submitted by IACA, I re-assigned these two cases to another Legal Officer, Mr Grill.

On 17 February 2006, Mr Grill rang you to inform you of the change that had occurred and to clarify an issue concerning the interpretation of your observations. Mr Grill also informed you that it appeared likely that further inquiries would have to be conducted. In an e-mail sent on 17 February 2006, you confirmed that the interpretation of your observations that Mr Grill had put forward was correct.

On 3 March 2006, I wrote to the Commission in order to ask it for further information in relation to this case. I requested that this information be provided by 30 April 2006. You were informed accordingly the same day.

On 12 May 2006, the Commission informed me that, to its regret, it had not been possible to meet this deadline but that it would do its utmost to send its reply within the next two weeks. In my reply of 22 May 2006, I took note of this letter, expressing my regrets at the fact that the Commission had failed to make a timely and reasoned request for an extension of time. You were informed accordingly on 1 June 2006. On the same day, Mr Clarke sent an e-mail inquiring about progress on the case. My Office replied the same day, providing the necessary information.

On 9 June 2006, you sent an e-mail asking whether the Commission's reply had been received. My Office informed you over the telephone that this was not the case.

By letter of 9 June 2006, the Commission informed me that some further delay had occurred but that the reply would be sent as rapidly as possible.

On 11 July 2006, I addressed a reminder to the Commission.

On 17 July 2006, the Commission sent me its reply to my letter of 3 March 2006. I forwarded it to you on 19 July 2006 with an invitation to make observations.

On 21 July 2006, Mr Clarke sent an e-mail inquiring about progress on the case. My Office replied on 24 July 2006, providing the necessary information.

On 17 August 2006, Mr Clarke sent an e-mail in which he confirmed that he was ready to meet the Ombudsman if this should be considered useful. On 4 September 2006, my Office thanked Mr Clarke for his offer but informed him that it was unlikely that a meeting would become necessary.

On 18 August 2006, you sent me your observations on the Commission's letter of 17 July 2006.

On 1 December 2006, you sent an e-mail asking when the Ombudsman's decision could be expected. My Office informed you on 2 December 2006 that it was likely that a decision would be adopted shortly.

On 21 December 2006, I addressed a draft recommendation to the Commission concerning this case.

On 2 January 2007, you submitted a question concerning procedural aspects to me. This question was answered by Mr Grill by e-mail of 8 January 2007.

The Commission sent its detailed opinion on 3 April 2007, and I forwarded it to you on 16 April 2007 for your observations, which you sent on 23 May 2007.

I am writing now to let you know the results of the inquiries that have been made.


THE COMPLAINT

Background

The present complaint was lodged by the European Regions Airline Association, a grouping of over 60 airlines companies in Europe(1). It is closely related to complaint 1476/2005/(BB)GG lodged by the International Air Carrier Association ("IACA").

The complaint concerns information prepared and published by the European Commission as regards the rights of travellers under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91(2). Regulation 261/2004 entered into force on 17 February 2005. In its judgment of 10 January 2006 in Case C-344/04, the European Court of Justice confirmed that Regulation 261/2004 was valid(3).

The facts according to the complainant

In order to inform passengers of their new rights under Regulation 261/2004, the Commission prepared and published a leaflet, a poster and a fact sheet. The Commission also produced a short video presentation and issued a press release to mark the coming into force of the Regulation. All these materials were also made available on the Commission's website.

The complainant took the view that the leaflet, the poster and the fact sheet contained a number of statements regarding passengers' rights that were erroneous and misleading. On 21 January 2005, the complainant and IACA therefore wrote to the Commission in order to ask for these statements to be corrected and to propose a meeting. In its reply of 4 February 2005, the Commission stressed that, although it remained convinced of the accuracy of the content of the leaflet and of the poster, some parts of the text had been slightly changed in the meantime. The Commission added: "You will understand that in order to inform passengers at large scale about their new rights when travelling by air, we cannot copy the whole regulation but have to be selective. This has been clearly indicated on the information material concerned".

On 7 February 2005, the complainant and IACA turned to the Commission again. Together with their letter, the complainant and IACA provided a list of the statements that they considered to be inaccurate (together with an explanation as to why they held this view) and asked for an urgent meeting.

The statements in the poster to which the complainant and IACA objected were the following:(4)

Denied boarding and cancellation (in general)

(1) "If you are denied boarding or your flight is cancelled, the airline operating your flight must offer you financial compensation and assistance."

This opening paragraph creates a completely wrong impression. Only a minority of cancelled flights will lead to payment of compensation.

The following categories of passengers are not entitled to compensation:

- passengers on flights that are cancelled due to exceptional circumstances;

- passengers who are offered alternative transport within a few hours of the cancelled flight; and

- passengers who are given at least 14 days' notice of a cancellation.

Denied boarding

(2)(a) "These [benefits] must include the choice of either refund of your ticket (with a free flight back to your initial point of departure, when relevant) or alternative transport to your final destination."

A rerouting to the final destination will take place under comparable transport conditions. The Commission's poster may lead to an expectation that the passenger chooses his or her alternative transport freely.

(2)(b) "Compensation may be halved if you are not delayed more than 2, 3 or 4 hours respectively."

Regulation 261/2004 specifies "delayed on arrival", not on departure. The relevant statement is inaccurate and will thus lead to unnecessary discussions at the boarding gate.

(2)(c) "The airline must also give you: a choice of either a refund of your ticket (with a free flight back to your initial point of departure, when relevant) or alternative transport to your final destination (...)"

See comment on statement 2(a).

Cancellation

(3)(a) "Whenever your flight is cancelled, the operating airline must give you: a choice of either a refund of your ticket (with a free flight back to your initial point of departure, when relevant) or alternative transport to your final destination (...)"

See comment on statement 2(a).

(3)(b) "The airline may also have to compensate you, at the same level as for denied boarding, unless it gives you sufficient advance notice."

By only citing one of three important exceptions, the reader will almost certainly believe that there are no other exceptions.

The leaflet has the following text:

"The airline may also have to compensate you, at the same level as for denied boarding, unless it gives you sufficient advance notice and offers alternative transport close to the original time."

This text contains a clear error, given that the airline needs to offer either advance notice or alternative transport close to the original time.

Long delays

(4) "Immediate assistance (...) the airline must give you (...)

The notion of "immediate" assistance is not in line with the Regulation, as it would lead to unreasonable expectations from passengers. The provision of assistance may be dispensed with if it further delays a flight.

Later claims, baggage, injury and deaths in accidents

(5) The Commission's poster refers to the provisions of the Montreal Convention(5) and not to Regulation 261/2004. Its text omits all references to airlines' defence provisions mentioned in this Convention. The following exclusion clause should be retained: "Under international agreements an airline is liable for damage caused by delay, except if it proves that it did all it reasonably could to avoid the damage or that it was impossible to do so. It is also liable for loss or damage to baggage. Ask for information from your airline or travel agency."

Package holidays

(6) The wording on the poster is misleading in the sense that the non-execution of a service does not necessarily cause damages. The reference to a part of a package other than the flight should not appear on a poster on passenger rights. This will create additional confusion.

With the exception of statement 3(b), the Commission's fact sheet contains the same statements as its poster.

In its reply of 23 February 2005, the Commission reiterated its view that there was no need for any changes. No reply was given to the request for a meeting.

As regards the video presentation that had been produced by the Commission, the complainant considered that it contained the following three misleading statements:(6)

  1. "From 2005, passengers should not have to go through long procedures to defend their rights at European airports. Immediate and automatic compensation will be paid for delays, cancellations and overbooking".
  2. "Third, airlines must offer identical compensation [as that payable in relation to overbooking] and, where necessary, look after passengers in cases of a last minute cancellation of flight".
  3. "If the delay is more than 5 hours, the airline must also reimburse the price of the ticket (...)"

According to the complainant, statement (1) is inaccurate, as compensation never has to be paid in respect of delay, and where compensation is payable under Regulation 261/2004, it does not have to be paid immediately.

Statements (1) and (2) fail to mention that passengers do not have a right to compensation in the following three cases:

  • passengers are given at least 14 days' notice of the cancellation;
  • passengers are advised of the cancellation less than 14 days before the flight but are offered rerouting, allowing them to reach their destination close to the original scheduled time of arrival; or
  • the cancellation is caused by "extraordinary circumstances".

The complainant further submitted that statements (1) and (2) failed to mention that compensation can be reduced by up to 50 % and that statement (3) was inaccurate, since it implied that full reimbursement was always due following a delay of 5 hours. According to the complainant, however, Regulation 261/2004 only obliges airlines to offer reimbursement where a passenger chooses not to proceed with the journey, and then only of the part of the journey not made (unless the flight is no longer serving any purpose in relation to the passenger's original travel plan, in which case full reimbursement is due).

On 16 February 2005, the Commission published a press release (IP/05/181: "Air transport: Europe reinforces passengers' rights"), which was accompanied by a document setting out questions and answers concerning the subject.

The answer to question 10 was worded as follows:

"Fog or other weather conditions, such as rain, storms, snow etc., only rarely constitute exceptional circumstances. Indeed, in order to be able to use the exemption for 'exceptional circumstances', the airline has first to show that it took all reasonable measures to avoid the problems caused to passengers following these weather conditions. Current technological development makes it possible for a plane in almost all cases to take off or land in the most difficult weather conditions. It is incredible that airlines continue, as in the past, to improperly use this exemption by pleading it in any circumstance".

According to the complainant, this statement was inaccurate for the following reasons: (i) aircraft manufacturers often state that their aircraft should not be flown in certain weather conditions for safety reasons and carriers rigidly adhere to such advice; (ii) many aircraft are not certificated to operate in certain poor weather conditions; (iii) not all flight crew are qualified to fly in certain poor weather conditions; (iv) not all airports have the facilities to enable aircraft to depart and arrive in certain poor weather conditions; and (v) in conditions of very poor visibility, airports often restrict the number of aircraft movement for safety reasons. Such restrictions often prevent aircraft from departing from an airport, even though they are certificated to operate in those conditions and the flight crew are sufficiently qualified.

The complainant and its members were also concerned about what they considered to be a serious accusation, namely that airlines improperly use the excuse of weather conditions in 'any circumstances', an accusation which they considered to be unjustified and unsubstantiated.

On 18 February 2005, the complainant and IACA therefore wrote to the Commission about the above statements in the press release and accompanying document. The relevant text was subsequently amended by the Commission. The amended version omitted question 10 of the original version. However, in its reply of 21 March 2005 to the letter of 18 February 2005, the Commission stated that it disagreed with the opinion expressed by the complainant and IACA that the relevant statements were inaccurate and should be withdrawn.

The complaint to the Ombudsman

In its complaint to the European Ombudsman, the complainant raised the following five issues, referring to the European Code of Good Administrative Behaviour:

  1. By refusing to make necessary amendments to its leaflet, poster and fact sheet regarding the Regulation, in order to remove or amend statements which could mislead passengers and lead to confrontation between airline staff and passengers and also unnecessary and expensive litigation, the Commission has acted unfairly and unreasonably, and is therefore in breach of Article 11 of the Code.
  2. In failing to change the misleading statements in the leaflet, the poster and the fact sheet, or otherwise properly to justify their continued appearance, and failing to respond to the complainant's request for a meeting, the Commission has not been service-minded, accessible or as helpful as possible, and is therefore in breach of Article 12 of the Code.
  3. The Commission has committed further breaches of Article 12 of the Code by failing to explain why it considers the statements in Question 10 of the original press release to be accurate (even though it has apparently withdrawn them - thereby indicating that they were not 'correct'), by attempting to deflect legitimate criticism of its press release, by making vague and unsubstantiated accusations about unidentified carriers, by failing to apologise for its errors and by failing to advise the complainant of its right to complain to the European Ombudsman under Article 19 of the Code.
  4. Given that the Commission would not have needed to carry out much, if any, research to provide a timely response to the complainant's letter dated 18 February 2005, by replying one month later, the Commission failed to respond within 'a reasonable time-limit'. The Commission is therefore also in breach of Article 17 of the Code.
  5. The video presentation produced by the Commission contained three misleading statements.

The complainant claimed that the Ombudsman should send two recommendations to the Commission, calling on the institution to remove all misleading statements from its leaflet, poster, fact sheet and video presentation and to apologise to the complainant's members for the unnecessary costs which they have incurred in processing unmeritorious claims brought by passengers who had been confused by the material published by the Commission.

THE INQUIRY

The Ombudsman's approach

On 3 May 2005, the Ombudsman forwarded the complaint to the Commission and asked it for an opinion. However, due to an oversight only the first, second and fourth allegations were mentioned in the letters addressed to the Commission and the complainant.

The Commission's opinion

In its opinion, the Commission made the following comments:

Background

Regulation 261/2004 replaces an earlier regulation that gave rights to passengers only in the event of denied boarding. It increases passengers' rights in the event of denied boarding and, for the first time, recognises rights of passengers (compensation and assistance) in the event of cancellation or long delays.

Regulation 261/2004 obliges airlines to provide passengers with information on their rights. In order to supplement and reinforce this information, the Commission itself set out to inform passengers about their rights, in accordance with the position it had adopted in its Communication of 16 February 2005 on "Strengthening passenger rights within the European Union"(7).

The information campaign had taken effect from 16 February 2005. Several Commissioners, Members of the European Parliament and officials from the Commission's services had distributed some of this information material at airports.

The European Code of Good Administrative Behaviour, to which the complainant referred, is not binding upon the Commission. However, the Commission's Rules of Procedure included, as an annex, a Code of Good Administrative Behaviour for staff of the European Commission in their relations with the public (the "Commission's Code")(8).

The Commission's campaign to inform about air passengers' rights constituted an example of the use of contemporary communication tools presented in a language that all people could understand.

The Commission was convinced of the accuracy of the contents of the materials distributed by it and took issue with the complainant's submission that this material contained misleading information. To make citizens aware of their rights, the relevant material had to be made available and accessible to them in an understandable manner. Because of the complexity of Regulation 261/2004, the Commission took the view that it needed to be selective. This had been clearly indicated in the information material concerned. In particular, each of the various types of material distributed clearly stated that it "provides a summary of the relevant EU legislation". It was therefore self-evident that the description of certain rights or provisions was not as detailed as the text of the Regulation itself.

The material had been carefully drafted. A difference of view as to the correctness of a particular statement could not, in any event, be construed as implying that the Commission had acted other than "impartially, fairly and reasonably" or had not been as "service-minded, accessible or as helpful as possible".

No error had occurred that adversely affected the rights or interests of the public or of the airline companies concerned.

As regards the leaflet, the poster and the fact sheet, the Commission had always acted in a service-minded manner by listening to the comments submitted by the complainant. As acknowledged in the letter of 4 February 2005, the Commission had slightly changed materials so as to make them more precise where, as with the poster, it was still possible to do so, bearing in mind that some of the documents had already been printed for a campaign that was already underway by the time the airlines had raised their concerns. The Commission had immediately introduced the same clarifications on other materials (leaflets, fact sheet and information on the internet).

As regards the video presentation , the Commission had, to its knowledge, never been informed by the complainant about the three allegedly misleading statements. The complaint might therefore have to be considered to be inadmissible in this regard. The explanation on the new rights contained in the video was limited to roughly one and a half minutes. It was obvious that certain rights could therefore not be presented in all their legal complexity. Furthermore, the video had not been made in order to provide passengers with a legal tool to defend their rights before a national court or before the competent national bodies, but to give a general presentation of the new policy of the EU. The video presentation contained a disclaimer in the following terms: "Neither the European Commission, nor any person acting on behalf of the Commission, is responsible for the use which might be made of the information contained in this video. The views expressed in this video have not been adopted or in any way approved by the Commission and should not be relied upon as a statement of the Commission's views."

As regards the "exceptional circumstances clause" of the press release, the complaint was inadmissible. The interpretation of the relevant phrase, which arguably, because of the nature of the particular act could not give rise to maladministration, was the subject-matter of proceedings before the Court of Justice in Case C-344/04. In order not to prejudge the deliberations of the Court in this matter, and in light of the request of certain airline associations, the Commission had decided to withdraw the relevant statement from its website, while at the same time maintaining its interpretation concerning the said clause.

The Commission and its officials had acted in a service-minded, correct, courteous and accessible manner. The extensive correspondence in which the Commission had engaged showed its willingness to connect with and respond to citizens, and to listen to the arguments put forward by the industry.

The Commission had never refused to hold a meeting with the complainant. On the contrary, Commissioner Barrot had met with representatives of the complainant, although issues relating to the implementation of Regulation 261/2004 had not been discussed.

As regards the letter of 18 February 2005, a holding reply had been sent on 4 March 2005. This course of action had been justified since it had been necessary to consult other services of the Commission. The reply had been sent on 21 March 2005, only 10 working days later. Article 4 of the Commission's Code had thus been complied with.

In its opinion, the Commission referred to further correspondence between itself and the complainant, copies of which it provided to the Ombudsman.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

It was surprising that the Commission refused to be held bound by a Code adopted by the EU's democratically-elected body, but instead relied on its own Code published in 2000.

The Commission's right to publish information about passenger rights was not disputed. The dispute concerned the contents of this information. The Commission's own Communication of 16 February 2005, to which the Commission had referred, had stressed that the establishment of new rights would only be useful if passengers were "correctly" informed of those rights (point 44).

The UK Air Transport Users' Council, a formal independent body established under UK law that represents the interests of air passengers, had stated that two thirds of the complaints it had received regarding rights under Regulation 261/2004 had been unjustified. The complainant had also heard from major airlines that passengers often quoted the opening sentences of the Commission's leaflet: "If you are denied boarding or your flight is cancelled, the airline operating your flight must offer you financial compensation and assistance. These rights apply, provided that you have checked in on time, for any flight including charters." This statement had misled many passengers and had resulted in an unprecedented level of complaints to airlines, consumer bodies and presumably the Commission itself. This showed the invalidity of the Commission's claim that no error had occurred that had adversely affected the rights or the interest of the public or of the airline companies concerned.

The changes that had been made on the poster had not been reflected in the version of the leaflet available on the Internet for several weeks.

It was true that no complaint had been made to the Commission about the video presentation . However, since there had been no progress as regards the printed material, such approaches appeared to be pointless.

As regards the press release, the Commission's plea of inadmissibility was incorrect. The interpretation of the relevant phrase was not the subject of the proceedings before the Court of Justice. In its letter of 21 March 2005, the Commission had simply rejected the objections that had been raised in this context, without providing any further explanations. This was not a service-minded, objective and impartial response.

The complainant objected most strongly to the statement that the Commission had never refused to hold a meeting with it. A meeting had been suggested or requested in the letters of 21 January, 7 February and 23 March 2005. By omitting to reply thereto, the Commission had effectively refused to meet the complainant on this issue.

In its observations, the complainant made the following further allegations against the Commission:

- the Commission's opinion itself contained inaccurate or misleading information;

- the Commission had not treated the complainant's concerns with objectivity and impartiality;

- the Commission had not stated reasons for its rejection of the complainant's concerns; and

- several other letters sent by it to the Commission (which were listed in the Commission's opinion) had not been answered within the relevant time-limit.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The Ombudsman's request for a supplementary opinion and for further information

On 3 March 2006, the Ombudsman therefore addressed a letter to the Commission in which he asked for a supplementary opinion and for further information.

This request concerned the following issues:

(1) Clarification of the scope of the original complaint

In his opening letter to the Commission, the Ombudsman had asked the latter to provide an opinion on three of the five allegations submitted by the complainant, as well as on the claims it had raised.

In reality, the complainant had submitted two other allegations.

The Ombudsman noted that in its opinion, the Commission had addressed some (but not all) of the issues that had not been mentioned in his opening letter. In order to make it possible to examine all the issues raised by the complainant, the Ombudsman therefore clarified that the present inquiry concerned all five allegations that had been submitted by the complainant. The Ombudsman invited the Commission to submit a supplementary opinion on the aspects it had not yet addressed.

(2) New allegations

In its observations on the Commission's opinion, the complainant made the following allegations against the Commission:

- the Commission's opinion itself contained inaccurate or misleading information;

- the Commission had not treated the complainant's concerns with objectivity and impartiality;

- the Commission had not stated reasons for its rejection of the complainant's concerns; and

- several other letters sent by it to the Commission (which were listed in the Commission opinion) had not been answered within the relevant time-limit.

At first sight, it thus appeared that the complainant intended to make further allegations. However, upon closer examination it emerged that all but one of the issues only repeated and reinforced the allegations already made. The exception was the last one, where the allegation of failure to reply within the relevant time-limit was extended to further letters. An inspection of the information provided in the opinion (to which the complainant had referred) showed that only two further letters (sent on 23 March and 6 May 2005) could be concerned by this new allegation.

In a telephone conversation with the Ombudsman's Office, which took place on 17 February 2006, the complainant's lawyers confirmed that the above interpretation was correct.

The Ombudsman therefore asked the Commission for a supplementary opinion on the further allegation that it had failed to reply to the letters of 23 March and 6 May 2005 within the relevant time-limit.

(3) Request for further information

The Ombudsman also asked the Commission to provide him with the following information:

  1. Could the Commission please submit a copy (or printout) of the original version and of any revised versions of the poster, the leaflet and the fact sheet, both as regards the versions available online and the printed versions of these documents? Could the Commission please also specify when the relevant changes were made ?
  2. Could the Commission please address the specific issues that were raised by the complainant and IACA in the enclosure of their letter of 7 February 2005 ?
  3. The Ombudsman notes that the Commission considers the complaint to be inadmissible in so far as it concerns the video presentation produced and disseminated by the Commission, since the complainant had not previously brought these issues to its attention. It should however be recalled that Article 2(4) of the Ombudsman's Statute requires a complaint to be preceded by "appropriate" prior approaches. In its observations, the complainant effectively argued that contacting the Commission on the issue of the video presentation was not appropriate in the light of the Commission's reaction to the previous approaches concerning the poster, the leaflet and the fact sheet. In the Ombudsman's view, this argument would appear to be reasonable. Could the Commission therefore please address the points made by the complainant as regards the video presentation ?
  4. As regards the press release, the Commission argues that this aspect of the complaint is inadmissible since the relevant issue was the subject-matter of Case C-304/04. Could the Commission please specify why the complainant's allegation concerning the press release ought to be regarded as inadmissible on this account, particularly as regards the complainant's submission that the Commission had made "vague and unsubstantiated accusations about unidentified carriers" ?
The Commission's reply

Together with its reply, the Commission provided a copy of the revised versions of the poster, the leaflet and the fact sheet. It explained that the original versions of the poster and the leaflet had been delivered to its services on 22 December 2004 and the revised versions on 2 February (poster) and 17 March 2005 (leaflet).

The Commission made the following further comments:

As regards the poster and the leaflet, the disclaimer referred to the summarising character of the documents. Any legal dispute should be solely based on the legal texts concerned.

The opening statement of the poster and the leaflet did not create a wrong impression. First, the specific conditions to which the payment of a financial compensation is subject were addressed later and in more detail in the poster and the leaflet. Second, the question whether compensation was only applicable in a minority of cases could only be answered on the basis of factual information. However, no such information had been provided by the complainant. Third, cancellations were not systematically covered by the "exceptional circumstances" clause set out in Article 5(3) of Regulation 261/2004.

As regards denied boarding, it could not be understood how the wording "may" (indicating a possibility only) could lead to an expectation that the passenger was entitled to choose his alternative transport freely.

As regards cancellation, the leaflet had also been amended in the meantime. The fact that the revised version had been available slightly later than the revised version of the poster had been due to limited printing facilities.

As regards the usage of the word "immediate" in relation to the assistance to be provided in case of long delays, the terms for this assistance were detailed in the paragraph following the subtitle in question in the poster and the leaflet. Moreover, the wording of Article 6(1) of Regulation 261/2004 ("When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure ...") indicated that action needed to be taken well before the actual and confirmed delay, if the airline concerned had prior warning of delay. The wording "expects" means that an airline should organise and provide on-site assistance as soon as it receives information that the flight will be delayed for at least two hours and accommodate passengers accordingly and immediately, well before the two-hour delay.

The absence of the paragraph referring to the possible refusal of assistance in case its provision would delay the operation of flights even more is a result of the Commission having to be selective in its communication, as indicated in the disclaimer on the poster and the leaflet. In any case, in practice it was unlikely that the provision of assistance to passengers would further delay a flight.

Adding information on the Montreal Convention and on the rights of customers who have booked package tours made sense and was useful.

As regards the video presentation, the complainant and IACA never informed the Commission about any information that was misleading in their view. The video presentation contained excerpts from interviews with individuals and the views of these individuals did not necessarily reflect the views of the Commission, as the disclaimer had made clear. The Commission therefore did not intend to comment on the contents of the video presentation.

As regards the text that was removed from the press release, the question whether meteorological conditions qualify as "extraordinary circumstances" within the meaning of Article 5(3) of Regulation 261/2004 could not be answered in a general manner. Each specific situation had to be analysed on a case by case basis. It should be noted that airlines carried the burden of proof in this context. The Commission had written to all airlines associations on 10 March 2005 to remind them of their obligations not to abuse Article 5(3). It was clear that while the right to a safe flight prevailed in all circumstances, the notion of "extraordinary circumstances" should not be used as a pretext for diminished consumer protection.

As regards the replies to the complainant's letter of 23 March 2005, this letter had been sent by fax on 24 March 2005 and received the same day at the Commission's Directorate-General for Energy and Transport ("DG TREN"). It had been registered in the Commission's central mail register on 29 March 2005 and assigned to the competent unit on 31 March 2005. According to the Commission's Code, this was the reference date for officials to react within 15 working days. It should be noted that between 24 and 29 March 2005, the Commission's services had been closed because of the Easter period. The reply was registered as outgoing correspondence on 25 April 2005, thus 16 working days after the complainant's letter had been received in the competent department of the Commission. One day would not seem to be a major delay.

As regards the complainant's letter of 6 May 2005, this letter was answered on 26 May 2005, nine working days after it had been assigned to the competent unit within DG TREN on 12 May 2005.

The complainant's observations

In its observations, the complainant maintained its complaint and made the following further comments:

There was clear evidence of maladministration in three areas:

  • on and following 17 February 2005, the Commission distributed to consumers thousands of leaflets which contained a material error which the Commission had known about for several weeks,
  • the Commission had to this day maintained on its website a video presentation which contains material errors and which it refused to review, and
  • the Commission had remained unwilling to discuss these issues with the complainant, had taken insufficient remedial action and only intended to produce revised versions sometime in 2007.

The public perception of the Commission as a spokesperson for the EU imposed a duty of care when producing information material. The Commission could not abdicate its responsibility to publish information that is accurate through a disclaimer that says that "legal claims or actions should be based solely on the legal texts concerned."

The Ombudsman should ask the Commission to take immediate action to prevent further damage to the complainant's members.

The Commission had acknowledged that it had amended its original poster sometime after 22 December 2004, and received new posters on 2 February 2005. It seemed reasonable to assume that the change was communicated to the printers no later than early January 2005. However, the Commission had made a mass distribution of leaflets at several European airports on 17 February 2005. These leaflets all contained the text as on the original poster, as the new leaflets with the modified text did not arrive at the Commission until 17 March 2005. The change had demonstrably removed one significant error. However, the Commission had failed to address the fundamental question of why it had knowingly carried out a mass publicity campaign with information it knew at the time to be inaccurate. It was inadequate to rely on disclaimers when the information is known to be inaccurate at the time of distribution. Such standards were not acceptable in industry, and they should not be acceptable in European institutions.

The video presentation, which is available on the Commission's website, contains an official voiceover by a narrator together with interviews with Commission officials, representatives of transport organisations, and passengers. A reasonable observer of the video presentation would expect the official narrator and the Commission officials accurately to represent the Regulation, and would expect the disclaimer to apply only to the other interviews.

As regards replies to correspondence, other aspects of the complaint were more important. This aspect had only been included in order to illustrate the lack of service-mindedness of the Commission. It was surprising that the Commission considered that the timescale for responding to a letter sent directly to a Commission official did not start when this letter was received by the official but only after it had been sent to a central registry, logged and returned to the official, a process that apparently takes three working days. The Ombudsman was invited to check whether the Commission's interpretation represented an acceptable standard and whether this policy itself demonstrated a lack of service-mindedness by the Commission.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 21 December 2006, the Ombudsman addressed the following draft recommendation to the Commission:

The Commission should as soon as possible correct the inaccurate and misleading statements identified by the Ombudsman and present its apologies to the complainant.

The reasons for this draft recommendation may be summarised as follows:(9)

1 Introductory remarks

1.1 In its complaint to the European Ombudsman, the complainant submitted five allegations and a number of claims. In its observations on the Commission's opinion, the complainant extended the scope of one of these allegations.

1.2 Although the complainant has made five different allegations, the Ombudsman considered that these allegations all concerned two basic issues, namely (1) the allegedly inaccurate and misleading nature of some of the statements made by the Commission in its information material and (2) the Commission's alleged failure to correct these statements. As regards the second aspect, the complainant considered that the Commission had failed to act in a service-minded way. In its observations on the Commission's rely to the further inquiries carried out in this case, the complainant made it clear that its further allegation that the Commission had failed to reply to certain letters within an appropriate period of time had been made to illustrate what the complainant perceived to be the Commission's lack of service-mindedness. However, given that this allegation raised certain further questions, the Ombudsman considered it appropriate to deal with this issue separately.

As regards the scope of the inquiry and certain procedural issues

1.3 In its complaint, the complainant also objected to the fact that the Commission had not informed it of its right to complain to the Ombudsman. Even though the Ombudsman had explicitly invited the Commission to submit an opinion on this aspect of the case, the Commission refrained from doing so. The Ombudsman regretted that the Commission had thus failed to clarify this issue. However, given that the complainant had in any event been able to turn to the Ombudsman and that it had not returned to the issue in its observations, the Ombudsman took the view that there was no need to pursue his inquiry into this aspect of the case.

1.4 In its opinion, the Commission expressed doubts concerning the admissibility of the complaint in so far as it concerned (1) the video and (2) the press release. The Commission suggested that, in so far as the video presentation was concerned, the complainant had failed to make the appropriate prior approaches to it, as required by Article 2(4) of the Ombudsman's Statute. It further argued that the issue concerning the press release was sub judice in the proceedings in Case C-344/04.

1.5 Article 2(4) of the Ombudsman's Statute requires appropriate prior approaches to be made before turning to the Ombudsman. The Ombudsman noted that the complainant had turned to the Commission on 21 January and 7 February 2005, asking for corrections to be made to the poster and the leaflet. He further noted that with one single exception, the Commission had refused to accede to these requests, without addressing any of the detailed comments that the complainant had made in this context. In its observations on the Commission's opinion, the complainant effectively argued that contacting the Commission on the issue of the video presentation was not appropriate, in light of the Commission's reaction to the previous approaches concerning the poster, the leaflet and the fact sheet. The Ombudsman found this argument persuasive. Since the Commission had already made it clear that it saw no reason to change the information material it had published in written form, it was most likely that it would react in the same way to any requests to change other such material(10). In these circumstances, the complainant could not be expected to make further approaches to the Commission concerning the video presentation. The Ombudsman therefore rejected the Commission's view that this part of the complaint was inadmissible.

1.6. Article 1(3) of the Ombudsman's Statute provides that the Ombudsman must not intervene in cases before courts. Article 2(7) of the Statute makes provision for cases in which the Ombudsman has to terminate his inquiry because of legal proceedings concerning the facts which have been put forward. However, the Ombudsman was unable to understand why these rules should be relevant in the present case, given that neither the action brought before the Court of Justice nor the Court's judgment appeared to concern the relevant press release or the issue to which the passage criticised by the complainant referred. In his letter of 3 March 2006, the Ombudsman therefore asked the Commission to explain why this aspect of the complaint should nevertheless be considered to be inadmissible. The Ombudsman noted that the Commission omitted to address this question in its reply. In these circumstances, the Ombudsman considered that there was nothing to suggest that this aspect of the complaint should be considered inadmissible.

1.7 As regards the substance of this issue, the Ombudsman noted that the complainant essentially objected to the following statement made by the Commission in its press release: "Current technological development makes it possible for a plane in almost all cases to take off or land in the most difficult weather conditions. It is incredible that airlines continue, as in the past, to improperly use this exemption by pleading it in any circumstance."

1.8 The complainant argued that the first sentence of this statement was inaccurate for a number of reasons. The Ombudsman considered that the Commission's statement and the position adopted by the complainant might not necessarily be irreconcilable. In any event, the Ombudsman noted that, in a letter addressed to the Commission on 23 March 2005, the complainant had thanked the Commission for the action taken and noted that it was "pleased" that the relevant statement had been removed from the press release. It was true that the Commission's letter of 21 March 2005 also stated that the Commission did not share the argumentation presented by the complainant as regards the relevant sentence. However, the complainant first appeared to have asked for an explanation as to the Commission's reasons for this position in a letter sent on 25 April 2005, i.e., more than two weeks after the complaint to the Ombudsman was lodged.

1.9 As regards the second sentence, the Ombudsman agreed with the complainant's assessment that it contained a serious accusation, namely that airlines improperly use the excuse of weather conditions in order to try and avoid their responsibilities under Regulation 261/2004. However, regard had to be had to the fact that the Commission had removed the disputed statement from its press release after the complainant had objected to it. It emerged from the evidence submitted to the Ombudsman, that, in the above-mentioned letter of 23 March 2005, the complainant had expressed the view that a letter sent by the Commission on 10 March 2005 cast "blanket allegations of poor performance by airlines across the industry in passenger handling when flights are cancelled". The Ombudsman noted, however, that the Commission's letter of 10 March 2005 did not appear to be mentioned either in the complaint or in the complainant's observations.

1.10 In view of these considerations, the Ombudsman considered that there was no need to deal with the aspect of the case concerning the Commission's press release in the present decision. However, the complainant remained free to lodge a new complaint with the Ombudsman concerning this issue.

The European Code of Good Administrative Behaviour

1.11 In its opinion, the Commission submitted that the European Code of Good Administrative Behaviour, to which the complainant had referred, was not binding upon it but that the case could be assessed on the basis of the Code of Good Administrative Behaviour for staff of the European Commission in their relations with the public (the "Commission's Code"), which forms an annex of the Commission's Rules of Procedure(11). In its observations, the complainant expressed its surprise at the fact that the Commission refused to be held accountable to a Code adopted by the EU's democratically-elected body, but instead relied on its own Code published in 2000.

1.12 It should be noted that, in a resolution adopted on 6 September 2001, the European Parliament called on the Ombudsman to apply the European Code of Good Administrative Behaviour(12) in examining whether there is maladministration, so as to give effect to the right to good administration laid down in Article 41 of the Charter of Fundamental Rights of the EU(13). The Ombudsman's approach was therefore based on the provisions set out in the European Code of Good Administrative Behaviour, albeit with due regard to the Commission's Code, where appropriate.

1.13 The present case concerned inter alia the question whether the Commission had complied with its duty to act as a service-minded administration. In this context, the Ombudsman felt obliged to note that the Commission presented its opinion on the complaint more than two months after the appointed date. Its reply to the further inquiries was presented more than two and a half months after the date set by the Ombudsman. Furthermore, this reply failed to address some of the questions that had been put to the Commission by the Ombudsman. Although these facts obviously had no influence on the assessment of the present case, the Ombudsman wished to point out that the Commission could have lent its claim to be a service-minded administration more credibility, if it had dealt with the present case more rapidly.

The Ombudsman’s approach to the allegation that the Commission made inaccurate and misleading statements

1.14 The Ombudsman considered that it was good administrative practice for EU institutions and bodies to take care that the statements they make are accurate and not misleading and to correct promptly any errors that may occur. To make an inaccurate or misleading statement deliberately or negligently is therefore maladministration. Moreover, refusal to correct an inaccurate or misleading statement is also maladministration, even if the original error was neither deliberate nor negligent. The Ombudsman accepted that the Commission was right in pointing out that a mere disagreement on the correctness of a given statement does not constitute evidence of maladministration. The Ombudsman considered, however, that it was appropriate for him to apply during his inquiries an objective test of whether statements made by a Community institution or body are inaccurate or misleading. In this context, the term "misleading" (to which the Commission took exception) is therefore to be understood objectively, i.e., as meaning that a certain statement is likely to be interpreted inaccurately by the persons to whom it is addressed.

1.15 In the present case, the original complaint did not appear to allege that the Commission had intended to mislead or that it had acted negligently when it prepared the initial drafts of the relevant information material. The Ombudsman’s inquiry therefore focused on the objective accuracy or otherwise of the statements to which the complainant objects.

2 Allegedly inaccurate and misleading statements in information material

2.1 The complainant alleged that the poster, the leaflet, the fact sheet and the video presentation produced by the Commission in order to inform passengers of their rights under Regulation 261/2004 contained inaccurate and misleading statements. According to the complainant, the Commission had thus failed to act fairly and reasonably, as required by Article 11 of the European Code of Good Administrative Behaviour. The relevant objections were set out in detail in the annex to the letter addressed to the Commission on 7 February 2005 and in the complaint itself.

General issues

2.2 At the outset, it needed to be stressed that the Ombudsman fully agreed with the Commission's argument that passengers needed to be informed about their rights under Regulation 261/2004 and that it was therefore appropriate for the Commission to launch an information campaign of its own. The Ombudsman’s inquiry did not therefore concern the Commission's decision to provide information on the new rights (which undoubtedly strengthen the position of air passengers in a considerable way) but the contents of the information that was provided.

2.3 Regulation 261/2004 contained a detailed set of rules concerning the rights of air passengers. The Ombudsman therefore found it obvious that the information material furnished by the Commission could not and did not have to be complete, provided that the information that was furnished was accurate and not liable to mislead. Passengers who wished to obtain more detailed information were of course able to consult the text of Regulation 261/2004 itself, or to ask the competent authorities for advice.

2.4 The Ombudsman further agreed that, in order to be useful, the information had to be provided in an understandable language. As a matter of fact, the importance of the need to provide clear and intelligible information could hardly be overestimated in this field. Passengers who are affected by any of the problems covered by Regulation 261/2004 will usually (and understandably) want to be informed as rapidly and as clearly as possible what their rights are. In order to be useful, any information material must therefore be as concise and understandable as possible.

2.5 The Ombudsman further considered that the legitimate wish to provide useful information perfectly explained the fact that the material here at issue prepared by the Commission also comprised information on the possibility of further claims for damages for which an airline may be responsible under the Montreal Convention (i.e., damages caused by delays, by the destruction, damage, loss or delay of baggage and by injury or death). In the Ombudsman's view, the information that the Commission had published in this regard was not misleading, either.

2.6 The same consideration applied with regard to information on the rights of persons who have booked package holidays. The Ombudsman was unable to see how the relevant statements in the poster and the leaflet could be considered to be inaccurate or likely to mislead.

2.7 In its opinion and in its reply to the Ombudsman's further inquiries, the Commission laid particular emphasis on the fact that the information it had published contained "disclaimers". The Ombudsman noted that the poster and the leaflet both stressed that they only provided a summary of the relevant EU legislation and then continued as follows: "Any legal claim or action taken in the event of a dispute should be based solely on the legal texts concerned."

2.8 The Ombudsman considered that this information was both useful and appropriate, since it directs a person who wishes to pursue his rights in a more formal way to check the relevant rules in detail. However, the fact that the Commission had used the expression "disclaimer" in this context could also mean that the Commission wished to suggest that the presence of any inaccurate or misleading statements in its information materials would be irrelevant since the "disclaimers" made it clear that the Commission declined any responsibility for the accuracy of the information provided. If that were indeed the Commission's view, the Ombudsman would be unable to accept it. First, it should be noted that the text of the "disclaimer" does not refer to any possible inaccuracy in the information provided. Second, since the avowed aim of the information campaign was to provide useful information to air passengers, making inaccurate or misleading statements in this material would defeat the very purpose of the information. Third, and most importantly, the Commission itself had stressed the need to present the information in an accessible and understandable form. If the passages to which the Commission had referred to as "disclaimers" were intended to explain that the information provided by the Commission was not necessarily accurate, the Commission would clearly have failed to make this as clear and understandable as was necessary.

2.9 The disclaimer concerning the video presentation was to be addressed separately (see point 2.20 below).

As regards the information contained in the poster

2.10 As regards the poster, the complainant identified the following statements as being inaccurate or misleading:(14)

(1) "If you are denied boarding or your flight is cancelled, the airline operating your flight must offer you financial compensation and assistance."

(2)(a) "These [benefits] must include the choice of either refund of your ticket (with a free flight back to your initial point of departure, when relevant) or alternative transport to your final destination."

(2)(b) "Compensation may be halved if you are not delayed more than 2, 3 or 4 hours respectively."

(2)(c) "The airline must also give you: a choice of either a refund of your ticket (with a free flight back to your initial point of departure, when relevant) or alternative transport to your final destination (...)"

(3)(a) "Whenever your flight is cancelled, the operating airline must give you: a choice of either a refund of your ticket (with a free flight back to your initial point of departure, when relevant) or alternative transport to your final destination (...)"

(3)(b) "The airline may also have to compensate you, at the same level as for denied boarding, unless it gives you sufficient advance notice."

(4) "Immediate assistance (...) the airline must give you (...).

2.11 As regards statement (1), the Ombudsman considered that the relevant statement suggested that compensation had to be paid ("must") in every case where a flight is cancelled. As the complainant correctly submitted, this statement was inaccurate, since Regulation 261/2004 only foresees a right to compensation when certain conditions are met. The Ombudsman furthermore considered that the wording of the relevant statement was likely to mislead passengers. It was true that the text of the poster (and of the leaflet) contained a further paragraph that contained much more nuanced information, namely statement (3)(b). Given the wording of this statement ("may"), the Ombudsman found it even harder to understand why the opening statement used mandatory language ("must"). In addition to that, the poster (and the leaflet) were meant to provide rapid information. One could easily imagine that an air passenger who learns that his flight has been cancelled and who starts reading the text provided by the Commission will content himself with reading the opening statement and immediately address himself to the airline staff in order to make a claim for compensation. The Ombudsman noted, besides, that the complainant had provided information that suggested that the relevant statement might indeed have misled a significant number of air passengers.

2.12 As regards statement (3)(b), it had already been noted that it was less categorical than statement (1). However, the complainant submitted that by citing only one of three important exceptions, the reader would almost certainly believe that there are no other exceptions. The Ombudsman carefully examined the said statement. It was true that the usage of the word "may" implied that payment of compensation would not be due in all cases where a flight was cancelled and that there were thus exceptions. However, only one of these exceptions was mentioned in the text. The Ombudsman therefore considered that a passenger reading this text would be induced to believe that this was the only such exception and that he would be entitled to compensation on condition that no sufficient advance notice was given. This conclusion was strengthened by the consideration that it would have been very simple to remove the risk of mistakes on the part of passengers reading the text by adding a few words.

2.13 In view of the above, the Ombudsman concluded that statements (1) and (3)(b) were inaccurate and misleading. As regards the other statements, the Ombudsman considered that they did not appear to be objectionable.

As regards the leaflet

2.14 Given that the text of the leaflet corresponded to that of the poster, the same conclusions as those reached in points 2.10-2.13 applied.

2.15 The only difference concerned statement (3)(b). The text of this statement in the leaflet had initially been as follows:

"The airline may also have to compensate you, at the same level as for denied boarding, unless it gives you sufficient advance notice and offers alternative transport close to the original time."

2.16 The complainant correctly observed that this text contained a clear error, given that the airline needed to offer either advance notice or alternative transport close to the original time.

2.17 The Ombudsman therefore concluded that the initial wording of this statement in the leaflet was inaccurate. He noted that the wording had subsequently been changed and now corresponded to that of the poster. However, and as explained above (see point 2.12), this new wording was also inaccurate and misleading.

As regards the video presentation

2.18 The complainant alleged that the video presentation produced by the Commission contained the following three misleading statements:

  1. "From 2005, passengers should not have to go through long procedures to defend their rights at European airports. Immediate and automatic compensation will be paid for delays, cancellations and overbooking".
  2. "Third, airlines must offer identical compensation [as that payable in relation to overbooking] and, where necessary, look after passengers in cases of a last minute cancellation of flight".
  3. If the delay is more than 5 hours, the airline must also reimburse the price of the ticket (...)".

2.19 As noted above, the Commission had, in its opinion, expressed the view that the complaint was inadmissible in this respect. In reply to the Ombudsman's further inquiries, in which it had been asked to address this aspect of the case, the Commission submitted that the video presentation contained excerpts from interviews with individuals and that the views of these individuals did not, as the disclaimer had made clear, necessarily reflect the views of the Commission. The Commission added that it did therefore not intend to comment on the contents of the video.

2.20 The Ombudsman considered that there was no need to deal with the question as to whether the way in which the Commission had replied to his further inquiries on this point was adequate. In the Ombudsman's view, the position adopted by the Commission was in any event unconvincing. The Ombudsman had watched the relevant video, which is available on the Commission's website. On the basis of this verification, the Ombudsman considered that a reasonable person watching this video presentation would assume that the disclaimer only applied to the persons interviewed other than the Commission officials, and not to the statements made by the narrator himself. In these circumstances, it was necessary to examine whether the statements to which the complainant objects were indeed inaccurate or misleading.

2.21 The complainant argued that statement (1) was inaccurate, as compensation never had to be paid in respect of delay and, where compensation was payable under Regulation 261/2004, it did not have to be paid immediately. The Ombudsman noted that the complainant's interpretation of Regulation 261/2004 was clearly correct. The relevant statement in the Commission's video presentation was therefore inaccurate and misleading.

2.22 The complainant further argued that statements (1) and (2) were inaccurate in that they failed to mention that passengers do not have a right to compensation in three cases, namely (i) where passengers are given at least 14 days' notice of the cancellation; (ii) where passengers are advised of the cancellation less than 14 days before the flight but are offered rerouting allowing them to reach their destination close to the original scheduled time of arrival; and (iii) where the cancellation is caused by "extraordinary circumstances". Given that the relevant statements indeed create the impression that compensation has to be paid whenever a flight is cancelled, the Ombudsman took the view that the complainant's objection is justified. Even though the Commission could not be expected to explain the relevant rules in detail in its video presentation, it would easily have been possible to qualify the relevant statements and thus eliminate the misunderstandings to which the text is most likely to give rise, for instance, by adding the words "unless certain exceptions apply".

2.23 As regards statement (3), however, the Ombudsman considered that the complainant's objections were not founded.

Conclusion

2.24 In view of the above, the Ombudsman considered that the following statements made in the poster, the leaflet and the video were inaccurate or misleading:

  • statements 1 and 3(b) in the poster and in the current version of the leaflet;
  • statement 3(b) in the original version of the leaflet; and
  • statements (1) and (2) in the video presentation.

2.25 The Commission's failure to correct these inaccurate or misleading statements constituted maladministration.

3 Alleged failure to act fairly and reasonably and to be service-minded, accessible and helpful

3.1 The complainant alleged that by refusing to make the necessary amendments to its leaflet, the poster and the fact sheet, in order to remove or amend statements that could mislead passengers and lead to confrontation between airline staff and passengers and also to unnecessary and expensive litigation, the Commission had acted unfairly and unreasonably, and was therefore in breach of Article 11 of the European Code of Good Administrative Behaviour. It further alleged that by failing to change the inaccurate or misleading statements in the leaflet, the poster and the fact sheet, or otherwise properly to justify their continued appearance, and failing to respond to the complainant's request for a meeting, the Commission had not been service-minded, accessible or as helpful as possible, and was therefore in breach of Article 12 of the Code.

3.2 The Ombudsman noted that, in a letter addressed to the Commission on 7 February 2005, the complainant and IACA had requested an "urgent meeting" with the Commission. The Commission's reply of 23 February 2005 did not address this request. It could of course not be excluded that the Commission might have had legitimate reasons for not agreeing to a meeting with the complainant at that time. However, the Commission's letter of 23 February 2005 did not provide any explanation as to why a meeting was not considered necessary or appropriate, but simply ignored this request. In these circumstances, the Ombudsman took the view that, by omitting to react to the complainant's urgent request for a meeting, the Commission had failed to be as service-minded and courteous as it should have been.

3.3. The Ombudsman further concluded that, by omitting to correct or withdraw the inaccurate or misleading statements to which the complainant had drawn the Commission's attention, the Commission had also failed to act reasonably and fairly and to show itself to be as service-minded, accessible and helpful as this would have been necessary in the circumstances. This constituted an instance of maladministration.

4 Alleged failure to reply to letters within an appropriate period of time

4.1 The complainant alleged that the Commission had failed to reply to its letters of 18 February 2005, 23 March 2005 and 6 May 2005 within an appropriate period of time. In the complainant's view, the Commission is therefore also in breach of Article 17 of the European Code of Good Administrative Behaviour.

4.2 The Commission took the view that it had complied with the relevant obligations that were set out in Article 4 of the Commission's Code.

4.3 Article 17 of the European Code of Good Administrative Behaviour provides that letters from members of the public shall be answered "within a reasonable time-limit, without delay, and in any event no later than two months from the date of receipt."

4.4 Article 4 of the Commission's Code provides inter alia:

"A reply to a letter addressed to the Commission shall be sent within 15 working days from the date of receipt of the letter by the responsible Commission department. (...) If a reply cannot be sent within 15 working days, (...) the member of staff responsible should send a holding reply, indicating a date by which the addressee may expect to be sent a reply (...)".

4.5 It can be noted that whereas the European Code of Good Administrative Behaviour only mentions the date by which a reply needs to be sent at the latest (i.e., two months from the date of receipt of the letter), the Commission's Code does not set an absolute deadline and would thus allow a reply to be sent even after two months, provided that a holding letter has been sent to the citizen. However, the Commission's Code is more specific than the European Code of Good Administrative Behaviour in that it foresees that such a holding letter, or the reply itself where no holding letter is necessary, must be sent within 15 working days.

4.6 The Ombudsman considered that, in the absence of particular circumstances that would make it necessary to deal with a letter as a matter of urgency, a period of 15 working days constituted a "reasonable time-limit" within the meaning of Article 17 of the European Code of Good Administrative Behaviour. In the absence of particular circumstances, there would therefore be no maladministration (1) where a reply is sent with 15 working days or (2) where only a holding reply is sent within 15 working days but where the reply itself is provided within a reasonable time-limit. On the other hand, the Ombudsman considered that it was appropriate to find maladministration in cases where the Commission failed to comply with its own Code.

4.7 On the basis of the above, the Ombudsman came to the conclusion that there was no maladministration as regards the letters of 18 February and 23 March 2005.

4.8 As regards the complainant's letter of 23 March 2005, the Ombudsman noted that the Commission had taken the view that, in the present case, it had acted in conformity with Article 4 of its own Code. However, the Commission itself had admitted in the same statement that, according to its own calculation, its reply had been one day late. Even though this delay would be limited, the fact remained that maladministration had occurred even if one accepted the Commission's own approach to calculating deadlines in this case. The Ombudsman considered that a service-minded and courteous administration would have presented an apology in such circumstances rather than to try to belittle the omission that had occurred.

4.9 However, the Ombudsman took the view that there was no need to examine this issue in more detail, given that he was unable to accept the approach underlying the Commission's calculation in the present case. The Commission argued that the time-limit of 15 working days for the reply starts when a letter, after having been registered in the Commission's central mail register, is assigned to the competent unit. However, Article 4 of the Commission's Code contains no such rule but simply provides that the deadline starts "from the date of receipt of the letter by the responsible Commission department". Since the Commission accepted that its Directorate-General for Energy and Transport was the responsible department and that the relevant letter arrived there on 24 March 2005, the period of 15 working days started to run as from that day. Even if one were to assume that the proper date to take into account was only 29 March 2005 (i.e., the first working day after the Easter break), the Commission's reply would have been sent at least 3 working days after the expiry of the time-limit of 15 working days required by the Commission's own Code.

4.10 In these circumstances, the Ombudsman considered that the Commission's failure to reply to the complainant's letter of 23 March 2005 within a reasonable period of time constituted maladministration.

5 As regards the complainant's claims

5.1 The complainant claimed that the Ombudsman should send two recommendations to the Commission, calling on the institution to remove all misleading statements from its leaflet, poster, fact sheet and video presentation and to apologise to the complainant's members for the unnecessary costs which they have incurred in processing unmeritorious claims brought by passengers who had been confused by the material published by the Commission.

In its observations on the Commission's reply to the further inquiries, the complainant added that the Ombudsman should ask the Commission to take immediate action to prevent further damage to its members.

5.2 In view of the above findings, the Ombudsman considered that the complainant's claim for remedial action on the part of the Commission was justified in so far as the statements in the poster, the leaflet and the video presentation which are set out in point 2.24 were concerned.

5.3 The complainant had provided a number of elements to support its allegation that passengers had been misled by the inaccurate and misleading information provided by the Commission. Although the information provided by the complainant in this context was not very precise, the Ombudsman considered it very likely that the inaccurate and misleading wording of the relevant statements had indeed given rise to a considerable number of disputes between passengers and airlines that could easily have been avoided if the Commission had provided accurate information. In these circumstances, the Ombudsman considered that a service-minded, courteous and accessible administration should indeed present an apology.

The Commission's detailed opinion

In its detailed opinion, the Commission informed the Ombudsman that it had taken note of his draft recommendation and that the leaflet, poster, fact-sheet and video presentation in question had already been withdrawn from its website. The Commission pointed out that replacement information would be produced. It added that already prior to the draft recommendation it had started a process of revising the information material to update its content and to take account of new Community legislation in this field. The Commission noted that the new information material had been sent to the stakeholders concerned, including the complainant, for comments.

As regards correspondence, the Commission stressed that it had never refused to reply, in writing, to letters of all the airline associations concerned. In particular, the complainant had addressed seven separate letters to the Commission in a very short timeframe preceding and following 17 February 2005, which had all been replied to within the deadline set in the Commission's Code, except for one single letter, which had had a very short delay.

The complainant's observations

In its observations, the complainant made the following comments:

The action taken by the Commission was welcomed. However, the Commission had failed to take all appropriate action, and the Ombudsman was requested to recommend further specific action in a final report to the European Parliament.

All the inaccurate and misleading publications had remained on the Commission's website until after 10 January 2007. It was following the publication of the Ombudsman's press release of 10 January 2007 concerning his draft recommendation that all these publications were removed from the Commission's website. The complainant welcomed this belated action.

However, the complainant believed that the Commission had not advised airports that were displaying its poster that the latter contained inaccurate and misleading information. It appeared that this poster was still on display at many EU airports.

The Commission had sent these posters to airports in early 2005, asking that they be displayed. Airports have displayed them solely because of the request from the Commission. Given the Ombudsman's draft recommendation, the Commission should have advised airports that the posters were incorrect and that they should be withdrawn.

The complainant considered this as a specific item covered implicitly by the draft recommendation. It therefore requested that the Ombudsman make a specific recommendation that the Commission should instruct airports to withdraw its posters. The Commission should issue such an instruction as soon as possible, and a deadline should be set for the Commission to issue such an instruction.

The complainant welcomed the initiative taken by the Commission to share the draft text of the new information with airline associations, prior to publication, and to seek feedback from them. The Commission's draft had contained many errors and misleading omissions. Most airline associations, including the complainant, had worked together and produced joint comments for the Commission. The Commission had adopted all the changes that the complainant had requested.

The complainant was disappointed that the Commission should have drafted such a poor original text. Given the apparent difficulty that the Commission had in drafting succinct but accurate texts, the complainant requested the Ombudsman to seek a commitment from the Commission that it will consult airline associations and act on their input prior to changing the new poster or producing any new material. Such action could prevent this issue from being raised again with the Ombudsman in the future.

The Commission had not apologised to the complainant and made no reference to this part of the draft recommendation in its detailed opinion. The Ombudsman was requested to pursue this issue.

THE DECISION

1 The complainant's case

1.1 The present complaint was lodged by the European Regions Airline Association, a grouping of over 60 airlines companies in Europe. It is closely related to complaint 1476/2005/(BB)GG lodged by the International Air Carrier Association ("IACA"). Both complaints concern information prepared and published by the European Commission as regards the rights of travellers under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91(15). This Regulation entered into force on 17 February 2005.

1.2 In order to inform passengers of their new rights under Regulation 261/2004, the Commission prepared and published a leaflet, a poster and a fact sheet. The Commission also produced a short video presentation and issued a press release to mark the coming into force of the Regulation. All these materials were also available on the Commission's website.

1.3 The complainant and IACA considered that this information material contained inaccurate and misleading statements. They therefore called upon the Commission to remove or correct these statements. However, the Commission took the view that the information it had published was accurate. With the exception of one particular statement that was modified in the poster (and subsequently also in the leaflet), the Commission therefore refused to make any substantive changes.

1.4 In its complaint to the European Ombudsman, the complainant submitted various allegations and claims. The Ombudsman considered that these allegations all concern two basic issues, namely (1) the allegedly inaccurate and misleading nature of some of the statements made by the Commission in its information material and (2) the Commission's alleged failure to correct these statements. The complainant made it clear that its further allegation (3) that the Commission had failed to reply to certain letters within an appropriate period of time had been made to illustrate what the complainant perceived to be the Commission's lack of service-mindedness as regards the withdrawal of the relevant statements. However, given that this allegation raised certain further questions, the Ombudsman considered it appropriate to deal with this issue separately.

1.5 The complaint was sent to the Commission for an opinion. The complainant presented observations on this opinion. The Ombudsman subsequently found it necessary to ask the Commission for further information concerning this case. The complainant made observations on the Commission's reply.

1.6 On the basis of the evidence thus collected, the Ombudsman arrived at the conclusion that there was indeed maladministration on the part of the Commission concerning the following aspects:

(1) The following statements made in the poster, the leaflet and the video were inaccurate or misleading:

  • statements 1 and 3(b) in the poster and in the current version of the leaflet;
  • statement 3(b) in the original version of the leaflet; and
  • statements (1) and (2) in the video presentation.

(2) The Commission's failure to correct these inaccurate or misleading statements constituted maladministration.

(3) By omitting to react to the urgent request for a meeting submitted on 7 February 2005, the Commission failed to be as service-minded and courteous as it should have been.

(4) By omitting to correct or withdraw the inaccurate or misleading statements to which the complainant had drawn the Commission's attention, the Commission failed to act reasonably and fairly and to show itself to be as service-minded, accessible and helpful as this would have been necessary in the circumstances.

(5) The Commission failed to reply to the complainant's letter of 23 March 2005 within a reasonable period.

(6) The Commission failed to present an apology for the maladministration that had occurred.

1.7 On 21 December 2006, the Ombudsman therefore addressed the following draft recommendation to the Commission:

The Commission should as soon as possible correct the inaccurate and misleading statements identified by the Ombudsman and present its apologies to the complainant.

1.8 In its detailed opinion, the Commission informed the Ombudsman that it had taken note of his draft recommendation and that the leaflet, poster, fact-sheet and video presentation in question had already been withdrawn from its website. The Commission pointed out that replacement information would be produced and that the new information material had been sent to the stakeholders concerned, including the complainant, for comments.

1.9 In its observations, the complainant welcomed the action taken by the Commission and added that the Commission had accepted all the comments it had made on the new information material. However, the complainant considered that three issues still needed to be addressed: (1) The old version of the poster was still on display at many EU airports. The Ombudsman was requested to make a specific recommendation that the Commission should instruct airports to withdraw these posters. (2) The Commission's draft for the new information material had contained many errors and misleading omissions. The Ombudsman should therefore seek a commitment from the Commission that it will consult airline associations and act on their input prior to changing the new poster or producing any new material. (3) The Commission had not apologised to the complainant and made no reference to this part of the draft recommendation in its detailed opinion. The Ombudsman was requested to pursue this issue.

1.10 As regards the first of these comments, the Ombudsman recalls that his draft recommendation called on the Commission to correct the inaccurate and misleading statements that he had identified in its information material. Given that it appears that the Commission sent the old version of the poster to airports in the EU and asked them to display these posters on their premises, the Ombudsman considers that in order to be useful, his draft recommendation must indeed be understood as encompassing the need to inform these airports that the old version of the poster has been replaced by a new version and that the display at these airports should be changed accordingly. However, the Ombudsman trusts that the Commission will take the necessary steps in this direction once the issue has been drawn to its attention through this decision. The Ombudsman invites the Commission to report to him on this issue by 31 July 2007, so as to enable the Ombudsman to decide whether, contrary to his present expectation, any further action needs to be taken in this respect.

1.12 As regards the second comment made by the complainant, the Ombudsman considers that the relevant statements in fact constitute a new claim. Although the Ombudsman is conscious of the fact that this claim arises from the experience that the complainant has had with the Commission in the present case, he notes that this claim does not seem to have been preceded by any specific prior approaches to the Commission. In any event, the Ombudsman takes the view that it would not be appropriate to extend his examination to this further claim at this advanced stage of his inquiry. The complainant remains free to submit a new complaint concerning this issue after having made the appropriate prior approaches to the Commission.

1.13 As regards the third issue raised by the complainant, it should be noted that the Ombudsman's draft recommendation comprised two aspects, i.e., (i) that the Commission should correct the inaccurate and misleading statements that the Ombudsman had identified and (ii) that the Commission should present its apologies to the complainant. Given that the draft recommendation was clearly and precisely worded, the fact that the Commission failed to deal with the second aspect it covered must therefore be understood as an implicit rejection of this part of the draft recommendation.

1.14 The Ombudsman regrets the position that the Commission has adopted in this respect. The relevant issue thus still needs to be dealt with by the Ombudsman.

1.15 Where an error occurs that negatively affects the rights or interests of a member of the public, it is good administration to apologise for this error(16). As regards the present case, the Ombudsman considers it very likely that the inaccurate and misleading wording of the relevant statements has given rise to a considerable number of disputes between passengers and airlines that could easily have been avoided if the Commission had provided accurate information. In these circumstances, the Ombudsman considered that a service-minded, courteous and accessible administration should indeed have presented an apology. The Commission's failure to do so constitutes maladministration.

2 Conclusion

2.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

Where an error occurs that negatively affects the rights or interests of a member of the public, it is good administration to apologise for this error(17). As regards the present case, the Ombudsman considered it very likely that the inaccurate and misleading wording of the relevant statements has given rise to a considerable number of disputes between passengers and airlines that could easily have been avoided if the Commission had provided accurate information. In these circumstances, the Ombudsman considered that a service-minded, courteous and accessible administration should indeed have presented an apology. The Commission's failure to do so constitutes maladministration.

2.2 Article 3(7) of the Statute of the European Ombudsman provides that after having made a draft recommendation and after having received the detailed opinion of the institution or body concerned, the Ombudsman shall send a report to the European Parliament and to the institution or body concerned.

2.3 In his Annual Report for 1998, the Ombudsman pointed out that the possibility for him to present a special report to the European Parliament was of inestimable value for his work. He added that special reports should therefore not be presented too frequently, but only in relation to important matters where the Parliament was able to take action in order to assist the Ombudsman(18). The Annual Report for 1998 was submitted to and approved by the European Parliament.

2.4 The Ombudsman takes the view that it would not be appropriate to make a special report to Parliament in the present case. Regrettable though the Commission's refusal to apologise to the complainant is, regard should also be had to the fact that the Commission has responded to the Ombudsman's draft recommendation as regards the substance of the case by correcting the inaccurate and misleading statements that the Ombudsman had identified.

2.5 The Ombudsman will therefore send a copy of this decision to the Commission and include a short summary in the annual report for 2007 that will be submitted to the European Parliament. The Ombudsman thus closes the case.

2.6 The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS


(1) The complaint was forwarded to the Ombudsman by a firm of solicitors based in London. The Ombudsman initially assumed that the complaint was lodged by this firm of solicitors. However, the letter submitted to the Ombudsman makes it clear that the European Regions Airlines Association is to be considered as being the complainant.

(2) OJ 2004 L 46, p. 1.

(3) Case C-344/04 IATA and ELFAA v. Department for Transport [2006] ECR I-403.

(4) The Commission's statements are presented in italics. The arguments put forward by the complainant and IACA are set out in normal script.

(5) The Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention") was approved by decision of the Council of the European Union of 5 April 2001 (OJ 2001 L 194, p. 38).

(6) A transcript of the video presentation was attached to the complaint submitted to the Ombudsman.

(7) Communication from the Commission to the European Parliament and the Council, COM(2005) 46 final.

(8) See the annex to the Rules of Procedure of the Commission (OJ 2000 L 308, p. 26).

(9) The full text of the draft recommendation is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(10) The position adopted by the Commission in the present inquiry confirms that the complainant's assumption was correct.

(11) See the annex to the Rules of Procedure of the Commission (OJ 2000 L 308, p. 26).

(12) Available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(13) OJ 2000 C 364, p. 1.

(14) This list does not include the statements that have already been discussed above.

(15) OJ 2004 L 46, p. 1.

(16) Cf. Article 12(2) of the European Code of Good Administrative Behaviour.

(17) Cf. Article 12(2) of the European Code of Good Administrative Behaviour.

(18) Annual Report for 1998, pages 27-28.