(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

Background

The present complaint was lodged by the International Air Carrier Association, a grouping of nearly 40 airline companies. It is closely related to complaint 1475/2005/(BB)GG lodged by the European Regional Airlines Association ("ERA").

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 and issued a press release to mark the coming into force of the Regulation. All these materials are also 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 ERA therefore wrote to the Commission in order to ask for these statements to be corrected and to offer 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 ERA turned to the Commission again. Together with their letter, the complainant and ERA 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 ERA 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 that had been produced by the Commission, the complainant limited itself to alleging that it contained inaccurate or misleading information. It appears, however, that the complainant wished to raise the same objections as ERA had done in the parallel complaint 1475/2005/(IP)GG.

In that complaint, ERA had submitted that the video contained the following three inaccurate or 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 ERA, 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".

ERA 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 ERA, 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).

The complaint to the Ombudsman

In its complaint to the European Ombudsman, the complainant alleged that the information concerning passengers' rights under Regulation 261/2004 that the Commission had published in its poster, leaflet, fact sheet and video contained inaccurate and misleading statements. The complainant claimed that the Commission should withdraw these statements.

THE INQUIRY

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 Commission's campaign to inform about air passengers' rights had been 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, 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 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 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."

The Commission submitted that 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(8).

The complainants’ observations

In its observations, the complainant maintained its complaint and concluded that the Commission had failed to act "impartially, fairly and reasonably". The complainant submitted that the Commission had refused to hold a meeting on the subject despite requests to that effect formulated by it and ERA in their letters of 21 January and 7 February 2005. According to the complainant, the Commission had thus failed to act in accordance with 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(9).

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) New allegation

In its observations on the Commission's opinion, the complainant alleged that the Commission had not acted "impartially, fairly and reasonably" and thus made a further allegation based on Article 11 of the European Code of Good Administrative Behaviour. The Ombudsman therefore asked the Commission for a s upplementary opinion on this further allegation.

(2) 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 ERA 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 produced and published 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 on complaint 1475/2005/(IP)GG, ERA effectively argued that contacting the Commission on the issue of the video 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 ?"

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 new allegation, this was a reformulation of issues already raised in the complaint.

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 (as the complainant had suggested) 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, the complainant and ERA never informed the Commission about any information that was misleading in their view. The video 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.

The complainant's observations

In its observations, the complainant maintained its complaint.

THE DECISION

1 Introductory remarks

1.1 The present complaint was lodged by the International Air Carrier Association, a grouping of nearly 40 airline companies. It is closely related to complaint 1475/2005/(IP)GG lodged by the European Regional Airlines Association ("ERA"). 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(10). This Regulation 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(11).

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 and issued a press release to mark the coming into force of the Regulation. All these materials are also available on the Commission's website.

1.3 The complainant and ERA 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 alleged that the information concerning passengers' rights under Regulation 261/2004 that the Commission had published in its poster, leaflet, fact sheet and video contained inaccurate and misleading statements. The complainant claimed that the Commission should withdraw these statements.

1.5 It should be noted that complaint 1475/2005/(IP)GG covers several other issues which were not raised in the present complaint. Although the complainant alluded to some of these issues in its observations on the Commission's opinion, the Ombudsman considers that there is no need to examine them in the present case. All these issues are dealt with in detail in case 1475/2005/(IP)GG, in which a draft recommendation is made today.

1.6 As regards the allegation and claim raised in the present case, the Ombudsman notes that the complainant has not submitted a detailed explanation as to the maladministration it considers to exist. However, since the present complaint and complaint 1475/2005/(IP)GG are closely linked, the Ombudsman understands that the complainant wishes to make the same arguments as were made in that other case. The present text is therefore based on the assumption that relevant arguments put forward by ERA in complaint 1475/2005/(IP)GG were also submitted by the complainant in this case.

The complaint as regards the video

1.7 In its opinion, the Commission expressed doubts concerning the admissibility of the complaint in so far as it concerned the video. The Commission suggested that in so far as the video 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.

1.8 Article 2(4) of the Ombudsman's Statute requires appropriate prior approaches to be made before turning to the Ombudsman. The Ombudsman notes that the complainant 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 notes that with one single exception, the Commission 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 in case 1475/2005/(IP)GG , ERA effectively argued that contacting the Commission on the issue of the video 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 finds 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(12). In these circumstances, the complainant could not be expected to make further approaches to the Commission concerning the video. The Commission's view that this part of the complaint is inadmissible therefore has to be rejected.

The European Code of Good Administrative Behaviour

1.9 In its observations on the Commission's opinion, the complainant relied on a provision set out in the European Code of Good Administrative Behaviour. In its opinion in case 1475/2005/(IP)GG, the Commission took the view that this Code is 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(13).

1.16 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(14) in examining whether there is maladministration, so as to give effect to the right to good administration laid down Article 41 of the Charter of Fundamental Rights of the EU(15). The present decision is therefore based on the provisions set out in the European Code of Good Administrative Behaviour.

1.17 The present case concerns inter alia the question whether the Commission has complied with its duty to act as a service-minded administration. In this context, the Ombudsman feels 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 (see point 2.5 below). Although these facts obviously have no influence on the assessment of the present case, the Ombudsman wishes 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

1.18 The Ombudsman considers that it is 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 accepts that the Commission is right in pointing out that a mere disagreement on the correctness of a given statement does not constitute evidence of maladministration. The Ombudsman considers, however, that it is 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.

1.19 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 had prepared the initial drafts of the relevant information material. The Ombudsman’s inquiry therefore has 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 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 impartially, fairly and reasonably, as required by Article 11 of the European Code of Good Administrative Behaviour. The relevant objections are set out in detail in the annex to the letter addressed to the Commission on 7 February 2005 and in the complaint itself.

2.2 In its opinion, the Commission pointed out that its information campaign, which had taken effect from 16 February 2005, had been an example of the use of contemporary communication tools presented in a language that all people could understand. The Commission stressed that it 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. It added that in order 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. The Commission noted that 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". According to the Commission, 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 Commission stressed that the material had been carefully drafted. According to the Commission, a difference of view as to the correctness of a particular statement could not, in any event, be construed as implying that there was maladministration. The Commission submitted that n o error had occurred that adversely affected the rights or interests of the public or of the airline companies concerned.

As regards the video, the Commission noted that the explanation on the new rights in the video was limited to roughly one and a half minutes. The Commission submitted that 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 Commission further noted that the video 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."

2.3 In its observations, the complainant maintained its complaint.

2.4 On 3 March 2006, the Ombudsman asked the Commission to address the detailed objections that the complainant had raised concerning the statements made by the Commission.

2.5 In its reply, the Commission commented on some (but not all) of these objections. These comments will be discussed below.

2.6 In its observations on this reply, the complainant maintained its complaint.

2.7 The Ombudsman notes that the complaint concerns various items of information material. Given that the complainant has made no specific comments on the fact sheet, the Ombudsman considers it legitimate to concentrate on the poster, the leaflet and the video. Given that the information contained in the poster and the leaflet is (now) virtually identical, the assessment of the complaint concerning the leaflet can be quite brief.

General issues

2.8 However, before addressing the statements made by the Commission as such, the Ombudsman considers it appropriate to clarify certain general issues.

2.9 At the outset, it needs to be stressed that the Ombudsman fully agrees 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 does 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.

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

2.11 The Ombudsman further agrees 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 can 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.

2.12 The Ombudsman further considers that the legitimate wish to provide useful information perfectly explains the fact that the information material 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(16) (i.e., damages caused by delays, by the destruction, damage, loss or delay of baggage and by injury or death). Although these rights do not derive from Regulation 261/2004, it appears reasonable to assume that any material destined to inform air passengers of their rights could also include information on these further rights. It is true that the relevant statements made by the Commission do not refer to the provisions in the Montreal Convention that exclude airlines' liability in certain cases. However, the Ombudsman considers that the absence of such a reference does not make the relevant statements inaccurate or misleading.

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

2.14 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 notes that the poster and the leaflet both stress that they only provide a summary of the relevant EU legislation and then continue as follows: "Any legal claim or action taken in the event of a dispute should be based solely on the legal texts concerned."

2.15 The Ombudsman considers that this information is 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 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. It is useful to note in this context that the Commission itself, in its Communication of 16 February 2005 on "Strengthening passenger rights within the European Union"(17), stressed that the new rights granted by Regulation 261/2004 would only be useful if passengers were "correctly" informed of those rights (point 44). Third, and most importantly, the Commission itself stressed the need to present the information in an accessible and understandable form. If the passages to which the Commission 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.

2.16 The disclaimer concerning the video will be addressed separately (see point 2.31 below).

As regards the information contained in the poster

2.17 As regards the poster, the complainant identified the following statements as being inaccurate or misleading:(18)

(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 (...).

2.18 The complainant(19) has made it clear that it considers statement (1) as being the most important. As regards this statement, the complainant argues that it creates a completely wrong impression, since it does not make it clear that only a minority of cancelled flights will lead to payment of compensation. The complainant stressed that certain categories of passengers are not entitled to compensation, namely (i) passengers on flights that are cancelled due to exceptional circumstances; (ii) passengers who are offered alternative transport within a few hours of the cancelled flight; and (iii) passengers who are given at least 14 days' notice of a cancellation.

2.19 The Commission denied that the relevant statement created a wrong impression, citing three reasons: 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 "extraordinary circumstances" clause set out in Article 5(3) of Regulation 261/2004.

2.20 The Ombudsman considers that there is no need to examine the issue as to whether compensation is only applicable in a minority of cases where flights are cancelled, as the complainant suggests. What is clear in any event is that the relevant statement suggests that compensation has to be paid ("must") in every case where a flight is cancelled. As the complainant correctly submits, this statement is inaccurate, since Regulation 261/2004 only foresees a right to compensation when certain conditions are met. The Ombudsman furthermore considers that the wording of the relevant statement is likely to mislead passengers. It is true that the text of the poster (and of the leaflet) contains a further paragraph that contains much more nuanced information, namely statement (3)(b). Given the wording of this statement ("may"), the Ombudsman finds it even harder to understand why the opening statement uses mandatory language ("must"). In addition to that, the poster (and the leaflet) are meant to provide rapid information. One can 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 notes, besides, that the complainant has provided information that suggests that the relevant statement may indeed have misled a significant number of air passengers.

2.21 As regards statement (3)(b), it has already been noted that is less categorical than statement (1). However, the complainant submitted that by citing only one of three important exceptions, the reader will almost certainly believe that there are no other exceptions. The Ombudsman has carefully examined the said statement. It is true that the usage of the word "may" implies that payment of compensation will not be due in all cases where a flight is cancelled and that there are thus exceptions. However, only one of these exceptions is mentioned in the text. The Ombudsman therefore considers that a passenger reading this text will be induced to believe that this is the only such exception and that he will be entitled to compensation on condition that no sufficient advance notice was given. This conclusion is 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.

2.22 As regards statements (2)(a), (2)(c) and (3)(a), the complainant argued that a rerouting to the final destination will take place under comparable transport conditions and that the Commission's statements might lead to an expectation that the passenger could choose his alternative transport freely. In its reply to the Ombudsman's further inquiries, the Commission submitted that it did not understand how the wording "may" (indicating a possibility only) could lead to an expectation that the passenger was entitled to choose his alternative transport freely. It very much seems that the Commission's remark is based on a confusion, given that the relevant statements do not contain the word quoted by the Commission(20). However, the Ombudsman considers that the complainant's concern does not appear to be justified in any event. A reference to the effect that the airline must provide "alternative transport to your final destination" can hardly be understood as suggesting that the passenger can freely choose his transport. If anything, the statement would rather seem to imply that the choice is the airline's.

2.23 As regards statement (2)(b), the complainant pointed out that Regulation 261/2004 specifies that where rerouting is offered, the delay has to be calculated on the basis of a comparison between the actual arrival time and the scheduled arrival time. It is true that the relevant statement in the poster (and the leaflet) does not mention this. However, and as mentioned above, the Ombudsman accepts that the Commission had to make a selection concerning the information to be provided. Since the Commission's statement is not inaccurate or misleading as such, the Ombudsman considers that the complainant's objection to it is not justified.

2.24 As regards statement (4), the complainant argued that the notion of "immediate" assistance is not in line with the Regulation, as it would lead passengers to form unreasonable expectations. The complainant submitted that the provision of assistance may be exempted if it were further to delay a flight. The Commission argued that (i) the terms for the assistance to be provided were detailed in the paragraph following the subtitle in question; (ii) that 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; and (iii) that the absence of a 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. The Commission added that in practice it was unlikely that the provision of assistance to passengers would further delay a flight.

The Ombudsman finds the first two arguments submitted by the Commission attractive. It would indeed appear logical to assume that an airline has to consider the assistance to be granted as soon as it can reasonably expect a delay (of 2, 3 or 4 hours or more, depending on the type of flight). In that sense, the term "immediate" is certainly justified. On the other hand, the term "must" implies that meals and refreshments have to be provided in every case. This is not the case, given that recital 18 of Regulation envisages that care for passengers awaiting an alternative or a delayed flight "may be limited or declined if the provision of the care itself cause further delay". The relevant statement could, therefore, usefully have been qualified (for instance, by adding the word "normally"). However, the complainant has not disputed the Commission's assertion that the provision of assistance could rarely further delay a flight. The Ombudsman therefore considers that the relevant statement cannot be considered to be inaccurate or misleading.

2.25 To sum up, the Ombudsman considers that statements (1) and (3)(b) are inaccurate and misleading. The other statements do not appear to be objectionable.

As regards the leaflet

2.26 Given that the text of the leaflet corresponds to that of the poster, the same conclusions as those reached in points 2.17-2.25 apply.

2.27 The only difference concerns statement (3)(b). The text of this statement in the leaflet was initially 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."

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

2.29 The Ombudsman therefore concludes that the initial wording of this statement in the leaflet was inaccurate. He notes that the wording was subsequently changed and now corresponds to that of the poster. However, and as explained above (see point 2.22), this new wording is also inaccurate and misleading.

As regards the video

2.30 The complainant alleged that the video produced by the Commission contained the following three misleading statements:(21)

(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 (...)".

2.31 As noted above, in its opinion the Commission 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 contained excerpts from interviews with individuals and that the views of these individuals did not necessarily reflect the views of the Commission, as the disclaimer had made clear. The Commission added that it was therefore not intended to comment on the contents of the video.

2.32 In its observations on this reply, the complainant argued that the video contained an official voiceover by a narrator together with interviews with Commission officials, representatives of transport organisations, and passengers. In the complainant's view, a reasonable observer of the video 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.

2.33 The Ombudsman considers that there is no need to deal with the question whether the way in which the Commission replied to his further inquiries on this point was adequate. In the Ombudsman's view, the position adopted by the Commission is in any event unconvincing. The Ombudsman has watched the relevant video, which is available on the Commission's website(22). On the basis of this verification, the Ombudsman considers that the arguments submitted by the complainant are correct. A reasonable person watching this video would indeed 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 is necessary to examine whether the statements to which the complainant objects were indeed inaccurate or misleading.

2.34 The complainant argued that 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. The Ombudsman notes that the complainant's interpretation of Regulation 261/2004 is clearly correct. The relevant statement in the Commission's video is therefore inaccurate and misleading.

2.35 The complainant further argued that statements (1) and (2) are inaccurate in that they fail 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 takes 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, 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".

2.36 Lastly, the complainant 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 no longer serves any purpose in relation to the passenger's original travel plan, in which case full reimbursement is due). The Ombudsman considers that the complainant's interpretation of the relevant rules of Regulation 261/2004 is correct. It is further true that the relevant statements do not provide the information to which the complainant refers. However, the Ombudsman considers that the information to which the complainant refers concerns certain details and that the Commission could legitimately omit these details in a presentation such as the video that was meant to be easily understandable. Furthermore, the Ombudsman takes the view that the complainant has not established why the absence of the relevant details should have made the contested statements inaccurate or misleading.

Conclusion

2.37 In view of the above, the Ombudsman considers 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.

2.38 The Commission's failure to correct these inaccurate or misleading statements constitutes maladministration.

3 As regards the complainant's claim

3.1 The complainant claimed that the Commission should withdraw these statements.

3.2 In view of the above findings, the Ombudsman considers that the complainant's claim for remedial action on the part of the Commission is justified in so far as the statements in the poster, the leaflet and the video, which are set out in point 2.37 are concerned. The Ombudsman notes, however, that withdrawing the statements in their entirety would result in gaps in the information material provided by the Commission. In the Ombudsman's view, it is therefore both sufficient and appropriate for the material to be corrected.

4 Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the Commission, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The Commission should as soon as possible correct the inaccurate and misleading statements identified by the Ombudsman.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Commission shall send a detailed opinion by 31 March 2007. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 21 December 2006

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(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 ERA 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 was attached to complaint 1475/2005/(IP)GG.

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

(8) In its opinon, the Commission also addresses certain other issues that had been raised in complaint 1475/2005/(IP)GG. Since these issues were not mentioned in the complaint in the present case, there is no need to summarise the relevant comments made by the Commission here.

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

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

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

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

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

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

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

(16) 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).

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

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

(19) See point 1.6 above.

(20) It appears possible that the Commission in reality intended to refer to statement (3)(b).

(21) A transcript of the video was attached to complaint 1475/2005/(IP)GG.

(22) In its opinion, the Commission had announced that it would send the Ombudsman a hard copy of the video. Since the opinion was forwarded by e-mail, no such copy was provided in the end. However, given that the video is available on the Commission's website, there was no need to ask for a hard copy in any event.