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Decision of the European Ombudsman closing his inquiry into complaint 1301/2010/GG against the European Commission

Available languages: en
  • Case: 1301/2010/GG
    Opened on 15 Jun 2010 - Decision on 12 Apr 2011
  • Institution(s) concerned: European Commission
  • Field(s) of law: Environment, consumers and health protection
  • 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],Impartiality, independence and objectivity [Articles 8 and 9 ECGAB],Reasonable time-limit for taking decisions [Article 17 ECGAB]
  • Subject matter(s): Institutional and policy matters

The background to the complaint

1. The present complaint was lodged on behalf of the European Regions Airline Association, a grouping that represents a considerable number of European airlines.

2. Nearly all of the airlines belonging to the complainant had to cancel some or all of their flights during the crisis caused by the eruption of a volcano on Iceland. The bulk of these cancellations occurred between 17 and 22 April 2010, when many European governments closed part or all of their national airspace to commercial flights. However, many airlines continued to be affected sporadically until mid-May 2010.

3. EU law imposes certain obligations on airlines when flights are cancelled. These obligations are set out in (i) 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 ("Regulation 261/2004")[1] and (ii) the Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention"), which was approved by decision of the Council of the European Union of 5 April 2001.[2]

4. Consequently, all of the complainant's member airlines (with the exception of those few that are all-freight operators) had to deal with passengers affected by the cancellation of their flights due to the volcanic ash crisis.

5. In many cases, airlines were overwhelmed by the unprecedented number of passengers affected and were not able to meet their obligations on the day when flights were cancelled. As a result, a large number of claims were submitted by passengers to airlines.

6. On 4 May 2010, the European Commission's Directorate-General Health and Consumers ("DG SANCO") published the following information on its homepage on the Commission's website:

"On 4 May 2010, the network of European Consumer Centres (ECC-Net), supported by the European Commission and operating in all EU Member States (as well as Iceland and Norway), published a practical complaint package, which is designed to help consumers affected by recent flight disruptions to exercise their rights guaranteed under EU law. The package includes a standard complaint letter, contact details of all airlines and other practical advice. ECC-Net handles about 60 000 cases annually for consumers who turn to them for advice or for help with problems they experienced while shopping or travelling across borders within the EU. In 2009, more than one in five (22.5 %) complaints tackled by ECCs concerned air transport. During the first week of the volcanic ash crisis, the number of cases handled by the network has risen seven times. (...)".

7. The complaint package was available under a link to a website run by DG SANCO.[3]

8. As regards passengers affected by the volcanic ash crisis, DG SANCO's above-mentioned website refers to a 'Questions & Answers document'. This document, which bore the title 'Airspace Closure. Practical advice to passengers affected by the closure of EU airports', contained 12 points setting out questions and answers.

9. The complainant became aware of this document on 5 May 2010 and immediately formed the view that it contained inaccurate and misleading information.

10. Point 3.1 of the 'Questions & Answers document' is worded as follows:

"3.1 What should I do if my luggage is delayed?

'Delay' means that your bag arrives eventually, within 21 days of your arrival. Under international law (Montreal Convention), you are entitled to compensation of up to approx. € 1 223 for delay. We recommend however that you observe the following procedure: (...)"

11. Point 6 of the 'Questions & Answers document' states the following:

"6. What if I did not make my flight connection due to the airspace closure: (a) in the case of an integrated ticket which includes the connection flight; (b) in the case of two tickets bought separately?

(a) See point 7 on package travel.

(b) You have:

- The right to receive information from airlines (e.g. airlines are required to give information on your rights as passengers as well as keeping you informed on the situation as it evolves);

- The right to choose between a refund of the ticket or re-routing to your final destination.

- The right to care as described in point 1, if your choice is re-routing and the cancellation of the connecting flight occurred after you left your place of residence."

12. On 5 May 2010, the complainant sent an e-mail to DG SANCO, asking for the incorrect and misleading information to be rectified. The complainant in particular referred to the answers provided in points 3.1, 6(a) and 6(b). In its e-mail, the complainant offered its assistance in correcting the document.

13. In its reply of 12 May 2010, DG SANCO submitted that the information provided in points 3.1 and 6 of the 'Questions & Answers document' was correct. It added that the said document merely expressed the opinion of the relevant service within the Commission on the interpretation of the relevant legislation.

14. On 13 May 2010, the complainant sent an e-mail to DG SANCO, asking it to reconsider its position and stressing the urgency of the matter. In this letter, the complainant provided further explanations to show why, in its view, the answer given in point 6(a) of the 'Questions & Answers document' was incorrect. The complainant expressed its disappointment at the fact that DG SANCO had not taken up its offer to assist the Commission in eliminating the incorrect and misleading information. It added that it would nevertheless prepare suggestions which should enable the document accurately to reflect EU law.

15. According to the complainant, revised versions of points 1, 3 and 6 of the 'Questions & Answers document' were sent to DG SANCO by the International Air Transport Association ("IATA"), acting also on behalf of the complainant. Point 1 of the 'Questions & Answers document' concerns the general question as to what happens when a flight is cancelled or delayed or when a passenger is denied boarding.

16. On 27 May 2010, DG SANCO replied to the complainant's e-mail of 13 May 2010, explaining that it was currently analysing the complainant's views and that it would shortly reply to the points raised in the letter of 13 May 2010. DG SANCO added that it would be happy to organise a meeting with the complainant if, after receiving its reply, the complainant still considered that there was a need for further discussions.

17. On 28 May 2010, the complainant wrote to DG SANCO again. Following this e-mail, DG SANCO telephoned the complainant, reiterating the position it had set out in its e-mail of 27 May 2010.

18. On 7 June 2010, and in the absence of a further reply, the complainant wrote to DG SANCO to announce that, if no reply was received by 8 June 2010, it would turn to the Ombudsman.

19. On 8 June 2010, the complainant turned to the Ombudsman.

The subject matter of the inquiry

20. In its complaint, the complainant submitted the following allegations and the following claim, which were taken up for inquiry by the Ombudsman:

Allegations:

(1) DG SANCO committed maladministration by publishing incorrect and misleading information on air passenger rights in its 'Questions & Answers document' and by failing to make the necessary corrections even though its attention had been drawn to the relevant errors.

(2) DG SANCO failed to handle the matter as rapidly and diligently as was necessary in view of the urgency of the case.

Claim:

DG SANCO should proceed to the necessary corrections as rapidly as possible and inform the ECC-Net accordingly.

The inquiry

21. On 15 June 2010, the Ombudsman asked the Commission for an opinion, which was submitted on 28 September 2010.

22. The Commission's opinion was forwarded to the complainant for its observations, which it sent on 17 November 2010.

The Ombudsman's analysis and conclusions

Preliminary remark

23. The Ombudsman considers that the complainant's allegations and its claim can be examined together.

A. Alleged publication of incorrect and misleading information, alleged failure to react rapidly and diligently and related claim

Arguments presented to the Ombudsman

24. The complainant underlined that it respected DG SANCO's right to publish information for air passengers. It submitted, however, that DG SANCO had a duty of care to ensure that the information it publishes is correct both in terms of accuracy and in terms of not being misleading, for example, by omitting key information. In the complainant's view, however, part of the information published by DG SANCO in the 'Questions & Answers document' was incorrect and misleading.

25. The complainant further submitted that DG SANCO (i) failed to take action to remove demonstrably incorrect information from its website or amend this information, (ii) failed to state a deadline by which a definitive answer would be provided and (iii) refused to meet the complainant until after its definitive response had been provided.

26. In its opinion, the Commission pointed out that in April 2010 it became clear that there was a need to provide information to consumers that went beyond what was already available on the Commission's websites. The Commission explained that, according to the reports it received from the European Consumer Centres, the consumers affected by the volcanic ash crisis could roughly be divided into two groups, that is to say, (i) air passengers to whom Regulation 261/2004 applied and (ii) other consumers covered by Council Directive No 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours[4] ("Directive 90/314"). On 22 April 2010, DG SANCO therefore began to prepare an 'ash information package' including a 'Questions & Answers document', which was to address the problems faced by both groups of consumers. The Commission added that this document was prepared in close cooperation with the services responsible for Regulation 261/2004 and Directive 90/314. The 'ash information package' was distributed to the European Consumer Centres and published on the Internet on 4 May 2010.

27. The Commission noted that, after receiving the complainant's first e-mail of 5 May 2010, DG SANCO consulted the Commission's Directorate-General Mobility and Transport ("DG MOVE"), which is responsible for Regulation 261/2004. DG MOVE replied to this consultation on 10 May and DG SANCO replied to the complainant on 12 May 2010.

28. The Commission pointed out that the complainant's e-mail of 5 May 2010 did not specify what exactly the complainant considered to be erroneous or misleading as regards points 3.1 and 6 of the 'Questions & Answers document'. It submitted that its reply of 12 May 2010 was thus correct. It added that this reply did not make any explicit reference to the complainant's offer of assistance, since it was assumed that the reply in itself would respond to the complainant's concerns.

29. The complainant's letter of 13 May 2010 clarified what the complainant considered to be incorrect and misleading in the 'Questions & Answers document'. According to the Commission, it became clear that the complainant's concerns were not based on Regulation 261/2004 but only on Directive 90/314. Still according to the Commission, in this letter the complainant limited its criticism to point 6 of the 'Questions & Answers document'. DG SANCO therefore consulted the Commission's Directorate-General for Justice, Freedom and Security ("DG JLS"), which was responsible for Directive 90/314. DG JLS replied on 18 May 2010. The Commission pointed out that, even though the notion of "package travel" was correctly defined elsewhere in the 'Questions & Answers document', its services considered that point 6, if read out of context, was indeed potentially misleading and that the document should be revised to clarify the matter. DG JLS was at the same time consulting the Commission' Legal Service on another matter linked to Directive 90/314, and it was decided to wait for the results of this consultation in case additional amendments of the 'Questions & Answers document' were necessary. The Commission stressed that this was done on order to make it possible to provide a complete and exhaustive reply to the complainant.

30. However, when it became clear that this would take longer than the period allowed for replying to correspondence, a holding reply was sent on 27 May 2010. The Commission underlined that this letter was sent well within the 15 working days foreseen in the Commission's Code of Good Administrative Behaviour.[5] According to the Commission, the 'Questions & Answers document' was not removed from the relevant website at this point since it was considered to be more prudent to wait for the results of the consultation of the Legal Service launched by DG JLS. Nor was it considered opportune to meet with the complainant at that time, as DG SANCO was still waiting for additional information and as the complainant had already explained all its arguments in writing.

31. The Commission explained that a meeting was held on 9 June 2010 between DG SANCO, DG MOVE, DG JLS and the Legal Service. During this meeting, it was decided that point 6 of the 'Questions & Answers document', when read out of context, was indeed potentially misleading and should therefore be revised so as to avoid any possibility of misleading the general public. Following the meeting, DG SANCO decided to remove the entire document from the relevant website for complete revision and not to revise point 6 alone. The document was removed from the relevant website on 11 June 2010 and the ECC network was asked to do likewise. The complainant was informed accordingly on 14 June 2010.

32. The Commission submitted that it had dealt with the complainant's correspondence in accordance with its Code of Good Administrative Behaviour. The 'Questions & Answers document' had been drawn up in close cooperation with the different Commission services concerned and had again been verified when the complainant contacted the Commission. The Commission stated that it therefore considered the complainant's allegations to be unfounded. As regards the complainant's claim, the Commission noted that the 'Questions & Answers document' was currently undergoing a complete revision. The complainant would be kept informed of the outcome of this revision.

33. In its observations, the complainant stated that it wished to maintain its complaint.

34. The complainant stressed that there was a period of 13 days between its initial complaint to the Commission and DG SANCO's acceptance that some of the information it had published was "potentially misleading". It underlined that there was a further period of 24 days before the text was withdrawn. In the complainant's view, these delays were unacceptable.

35. The complainant further submitted that the Commission's refusal to accept its offers of assistance, including the offer of a meeting, contributed to the said delay.

36. On the substance, the complainant agreed that the 'Questions & Answers document' referred to both Regulation 261/2004 and Directive 90/314. It stressed, however, that neither of these legislative acts related to lost or missing luggage, which was the subject of section 3. This part of the document was therefore based on other legal provisions. The complainant recalled that, in its e-mail of 5 May 2010, it had specifically referred to air passenger rights "under EU Regulation 261/2004 (and, in this case, other regulations)". DG SANCO should thus have been aware of the legal basis for each of the answers provided in the 'Questions & Answers document' and not have limited its initial investigation to matters concerning Regulation 261/2004 alone.

37. The complainant submitted that, contrary to what the Commission had claimed, its letter of 13 May 2010 presented only one example of the errors contained in the 'Questions & Answers document' and informed the Commission that it was working on suggestions to improve the document. It pointed out that the letter sent by IATA, also on behalf of the complainant, contained detailed comments on points 1, 3 and 6 of the 'Questions & Answers document'. The Commission should thus not have limited its action to investigating point 6 of the document.

38. The complainant further submitted that the answer to question 6 of the 'Questions & Answers document' was materially incorrect even if not "read out of its context". Furthermore, it was the nature of such documents in general, and of the 'Questions & Answers document' in particular, that the reader is guided towards the specific questions and answers relevant to him or her.

39. The complainant clarified that it did not dispute that its correspondence was answered within the time-limits foreseen in the Commission's Code of Good Administrative Behaviour. It added, however, that this had no relevance for its complaint.

40. The complainant noted that, in its opinion, the Commission had stated that it would keep the complainant informed of the outcome of the revision of the 'Questions & Answers document'. In reality, the Commission informed the complainant, by e-mail of 30 September 2010, of the changes that had been made, explaining that the revised version of the 'Questions & Answers document' would be published on 4 October 2010. In the complainant's view, this approach was not in conformity with what the Commission had committed itself to doing. The complainant stressed, however, that it did not wish to complain about this aspect of the case but simply intended to inform the Ombudsman so as to explain its decision not to withdraw the present complaint.

The Ombudsman's assessment

41. It emerges from the Commission's opinion that the 'Questions & Answers document' was removed from the relevant Commission website on 11 June 2010 and that the ECC network was asked to do likewise. The Commission would thus appear to have taken steps to deal with the complainant's claim. In its observations, the complainant pointed out that the Commission had in the meantime informed it of a corrected version of the said document that it intended to publish. Although the complainant indicated that it was not satisfied with the manner in which the Commission had carried out this revision as regards procedures, it stressed that it did not wish to complain about this issue. Nor did the complainant suggest that the revision carried out by the Commission failed adequately to take into account its concerns as regards the contents of the 'Questions & Answers document'. In these circumstances, the Ombudsman considers that there is no need for further inquiries as regards the complainant's claim. Only the complainant's allegations therefore need to be examined here.

42. The Ombudsman considers that it is good administrative practice for EU institutions, bodies, offices and agencies to take care that the information they provide to the public is accurate and not misleading and to correct promptly any errors that such information may contain. The present case thus raises two questions, namely, (i) whether the 'Questions & Answers document' published by the Commission in early May 2010 contained incorrect or misleading information and (ii) whether the Commission adequately dealt with the complainant's requests to correct this information.

43. As regards the first issue, the complainant criticized in particular points 3 and 6 of the said document. In its opinion, the Commission pointed out that it had reached the conclusion that, if read out of context, point 6 was indeed potentially misleading.

44. The question set out in point 6 (a) of the 'Questions & Answers document' addresses the situation that arose where a person had bought "an integrated ticket which includes the connection flight" but was unable to make the "flight connection due to the airspace closure". The answer set out in this document states: "See point 7 on package travel." As the complainant correctly observed, it is the nature of questions and answers documents that the reader is guided towards the specific questions and answers relevant to him or her. It is thus likely that a person who read the question and the answer set out in point 6 of the 'Questions & Answers document' was led to the conclusion that his situation constituted that of a package travel or that his rights were the same as those of a person who had booked a package travel. However, this was clearly not the case. According to the definition set out in Article 2 of Directive 90/314, a 'package' presupposes the pre-arranged combination of at least two of the following items: (a) transport; (b) accommodation; (c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package. Moreover, the rights laid down in Directive 90/314 for persons having booked a package travel are not identical to those provided to air passengers by Regulation 261/2004.

45. As regards point 3 of the 'Questions & Answers document', the advice given is that air passengers whose luggage is delayed but which arrives within 21 days are entitled, under the Montreal Convention, "to compensation of up to approx. € 1 223 for delay." It is reasonable to assume that this advice is likely to be understood as meaning that compensation is due in any such case of delay and simply on account of that delay. However, Article 19 of the Montreal Convention, which deals with delays, is worded as follows: "The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures." It would thus appear to be clear that compensation is only due if the delay has caused a damage. It is further clear that no compensation is due under the Montreal Convention if the exception set out in the second sentence of the provision applies.

46. The complainant's argument that the 'Questions & Answers document' contained incorrect or misleading information is therefore well-founded. Publishing such information thus constituted an instance of maladministration.

47. In its e-mail of 5 May 2010 to DG SANCO, the complainant drew the Commission's attention to the fact that the 'Questions & Answers document' contained incorrect and misleading information and asked for this information to be corrected. The Ombudsman notes that the complainant marked its message as urgent. It is true that the complainant did not provide detailed explanations as to why it considered that the 'Questions & Answers document' contained incorrect and misleading information. However, it referred to the answers provided in points 3.1, 6(a) and 6(b) of the document in particular. As mentioned above, it is fairly easy to see that the answers in points 3.1 and 6(a) were incorrect or misleading. In any event, it should be noted that the complainant, in its e-mail of 5 May 2010, had offered its assistance in correcting the document. If the Commission was unable itself to find that the complainant's criticism was justified, it would have been good administrative practice - and, indeed, common sense - to ask the complainant to submit more detailed explanations. However, in its reply of 12 May 2010, DG SANCO simply stated that, following internal consultations, it saw no reason to change the text. What is even more difficult to understand is that this reply only referred to point 6 of the 'Questions & Answers document', even though the complainant had also mentioned point 3 in its e-mail of 5 May 2010. Given that the complainant had used the words "in particular" in this context, it should moreover have been clear to the Commission that the complainant had mentioned points 3 and 6 only as examples.

48. The complainant's letter of 13 May 2010 provided a succinct explanation as to what the complainant considered to be incorrect or misleading as regards point 6(a) of the 'Questions & Answers document'. However, the complainant also stressed that this information was provided "to illustrate one clear error". Against the background of the complainant's earlier e-mail of 5 May 2010, the Ombudsman therefore finds it difficult to understand that the Commission, according to its opinion, took the view that the letter of 13 May 2010 meant that the complainant had limited its criticism to point 6 of the 'Questions & Answers document'.

49. It emerges from the Commission's opinion that it was only on 18 May 2010 that it reached the conclusion that part of the 'Questions & Answers document' was potentially misleading and that the document should therefore be revised, i.e., 13 days after the complainant had first raised the issue with the Commission. The complainant considered this delay to be unacceptable. Although the period appears to be fairly short as such, the Ombudsman considers that it needs to be seen against the general background of the case. Most of the cancellations of flights due to the crisis caused by the eruption of a volcano on Iceland took place in the second half of April. Air passengers, who tried to obtain information on their rights, were thus likely to do so during that period or shortly afterwards. It is fair to assume that the relevance of this information to air passengers diminished as time went by and as the situation began to return to normal. In these circumstances, it was clearly essential to correct any mistakes contained in the 'Questions & Answers document' as rapidly as possible. This conclusion is further supported by the consideration that it is likely that there was a considerable number of disputes between passengers and airlines that could easily have been avoided if the Commission had provided accurate information.

50. Seen against this background, the Ombudsman agrees with the complainant that the time it took the Commission to realize that its 'Questions & Answers document' contained incorrect or misleading information was excessive.

51. It emerges from the Commission's opinion that it was only on 11 June 2010 that the relevant document was removed from the Commission's website, that is to say, 24 days after the Commission had reached the conclusion that its 'Questions & Answers document' contained incorrect or misleading information.

52. The Ombudsman cannot but agree with the complainant's view that this further delay was unacceptable. The arguments presented by the Commission in this context are utterly unconvincing. In particular, the Ombudsman is unable to understand the Commission's statement that the 'Questions & Answers document' was not immediately removed from the relevant website since it was considered to be "more prudent" to wait for the results of a consultation of the Legal Service launched by DG JLS.

53. In view of the above, the Ombudsman reaches the conclusion that the Commission patently failed to take the necessary remedial action as rapidly as the circumstances of the case would have made necessary. This constitutes another instance of maladministration.

54. As the complainant correctly observed, this is not the first time that the Commission publishes incorrect or misleading information concerning the rights of air passengers. In 2005, the complainant submitted a complaint in which it criticized certain information on air passengers' rights under Regulation 261/2004 and the way the Commission had handled its objections to this information (complaint 1475/2005/(OP)GG).[6] In that case, the Ombudsman issued a draft recommendation calling on the Commission to correct as soon as possible the inaccurate and misleading statements identified by the Ombudsman and to present its apologies to the complainant. The Commission subsequently corrected the relevant information. However, it refrained from apologising to the complainant. The Ombudsman therefore closed his inquiry into that case with a critical remark.

55. Although the above-mentioned complaint did not concern the same Directorate-General of the Commission as the present case, the Ombudsman is concerned by the fact that a problem that he already criticized some years ago in relation to the previous case has re-occurred in the present one.

56. The Ombudsman is therefore led to the conclusion that this problem could be systemic and that an own-initiative inquiry may be needed to deal with it. However, before proceeding to such an inquiry the Ombudsman would like to invite the Commission to inform him, by 31 May 2011, of any further follow-up action that it might have taken to prevent such instances of maladministration from occurring again.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remarks:

It is good administrative practice for EU institutions, bodies, offices and agencies to take care that the information they provide to the public is accurate and not misleading and to correct promptly any errors that such information may contain. In the present case, the 'Questions & Answers document', which was published by the Commission in early May 2010 as part of an information package concerning the volcanic ash crisis, contained incorrect or misleading information. This constitutes an instance of maladministration. What is more, the Commission patently failed to take the necessary remedial action as rapidly as the circumstances of the case would have required. This constitutes another instance of maladministration.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 12 April 2011


[1] OJ 2004 L 46, p. 1.

[2] OJ 2001 L 194, p. 38.

[3] http://ec.europa.eu/dgs/health_consumer/icelandic-volcanic-cloud/index_en.htm#consumers.

[4] OJ 1990 L 158, p. 59.

[5] See the annex to the Commission's Rules of Procedure of 29 November 2000 OJ 2000 L 308, p. 26 (32).

[6] A corresponding complaint was submitted by the International Air Carrier Association (complaint 1476/2005/(OP)GG).