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Passengers who have the right to hold their tour organiser liable for reimbursement of the cost of their air tickets cannot also claim reimbursement of the cost of those tickets from the air carrier

On 19 March 2015, three persons booked return flights between Eelde (Netherlands) and Corfu (Greece) through Hellas Travel, a travel agency established in the Netherlands. Those flightsformed part of a ‘package tour’, the price of which was paid to Hellas Travel.

The flights were to be operated by Aegean Airlines, a company established in Greece, which had entered into a contract to that effect with G.S. Charter Aviation Services, a company established in Cyprus: Aegean Airlines made available to G.S. Aviation Services a certain number of seats, in return for payment of a charter price. G.S. Charter subsequently resold those seats to third parties, including to Hellas Travel.

However, a few days before the agreed departure date, Hellas Travel informed the three travellers that their trip had been cancelled. Aegean Airlines had in fact decided, since it was no longer possible to obtain the price previously agreed with Hellas Travel, to no longer operate flights to and from Corfu. Hellas was declared insolvent on 3 August 2016 and did not reimburse to the three travellers the cost of their air tickets.

The three passengers brought proceedings before the Rechtbank Noord-Nederland (District Court, Noord-Nederland, the Netherlands), which ordered Aegean Airlines to pay them compensation for the cancellation of their flight, in accordance with Regulation No 261/2004 on passenger rights.1

By contrast, that court did not give a ruling on their application seeking reimbursement of the cost of the air tickets. That is the issue which the national court referred to the Court of Justice. It seeks to ascertain whether a passenger who, under the directive on package travel, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can also claim reimbursement of the cost of that ticket from the air carrier, on the basis of the regulation on passenger rights.

In today’s judgment, the Court points out that the mere existence of a right to reimbursement, arising under the directive on package travel, is sufficient to rule out the possibility for a passenger, whose flight forms part of a package tour, to be able to claim reimbursement of the cost of his ticket, pursuant to the regulation on passenger rights, from the operating air carrier.

The Court considers that while the EU legislature did not intend to exclude entirely from the scope of the regulation passengers whose flight forms part of a package tour, it did, however, seek to 

maintain in their regard the effects of the adequate protection scheme which had previously been put in place by the directive on package travel.

It follows that the right to reimbursement of the cost of the ticket, pursuant to the regulation and the directive, are not cumulative. If they were, the passengers concerned would receive unjustified overcompensation, which would be to the detriment of the operating air carrier, which, in that case, would risk having to assume part of the liability of the tour organiser towards its clients.

That conclusion remains unchanged also where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee that reimbursement. In that context, the Court points out that the directive provides, inter alia, that tour organisers must provide sufficient evidence of security for the refund of money paid over in the event of insolvency. Moreover, the Court sets out its case-law pursuant to which national legislation properly transposes the obligations under the directive only if it achieves the result of providing passengers with an effective guarantee of the refund of all money paid over in the eventof the travel organiser’s insolvency. Failing that, the traveller concerned is entitled, in any event, to bring an action for damages against the Member Sate concerned for the loss incurred by him as a result of an infringement of EU law.

TV broadcasting regulation in the UE

A Member State may, for reasons of public policy such as combating incitement to hatred, impose a temporary obligation to broadcast or retransmit a television channel from another Member State only in pay-to-view packages.

Baltic Media Alliance Ltd (BMA), a company registered in the UK, broadcasts the television channel NTV Mir Lithuania, a channel directed to the Lithuanian public and showing mainly Russian-language programmes. On 18 May 2016 the Lithuanian Radio and Television Commission (LRTK) adopted, in accordance with Lithuanian legislation, a measure imposing on operators broadcasting television channels to Lithuanian consumers via cable or the internet an obligation, for a period of 12 months, no longer to broadcast the television channel NTV Mir Lithuania other than in pay-to-view packages. The decision was based on the fact that a programme broadcast on 15 April 2016 on the channel in question contained information inciting hostility to and hatred of the Baltic States on grounds of nationality.

BMA brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking the annulment of the decision of 18 May 2016, arguing in particular that the decision was taken in breach of the Audiovisual Media Services Directive,which requires the Member States to ensure freedom of reception and not to restrict the retransmission in their territory of television broadcasts from other Member States for reasons such as measure against incitement to hatred. That court asks the Court of Justice whether a decision such as that taken by the LRTK is covered by that directive.

In its examination of the wording, objectives, context and origin of that directive, taking account also of the relevant case-law, the Court finds that a national measure does not constitute a restriction within the meaning of Article 3(1) of the directive if, in general, it pursues a public policy objective and regulates the way in which a television channel is distributed to consumers of the receiving Member State, where those rules do not prevent the retransmission as such of thatchannel. Such a measure does not introduce a second control of the channel’s broadcasts in addition to that which the broadcasting Member State is required to carry out.

As regards the disputed measure, the Court notes that, according to the observations of the LRTK and the Lithuanian Government, the Lithuanian legislature, by adopting the Lithuanian law on information for the public, on the basis of which the decision of 18 May 2016 was taken, intended to combat the active distribution of information discrediting the Lithuanian State and threatening its status as a State in order, having regard to the particularly great influence of television on the formation of public opinion, to protect the security of the Lithuanian information space and guarantee and preserve the public interest in being correctly informed. The information referred to in that law includes material inciting the overthrow by force of the Lithuanian constitutional order, inciting attacks on the sovereignty of Lithuania, its territorial integrity and political independence, consisting in war propaganda, inciting war or hatred, ridicule or contempt, or inciting discrimination,

violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds inter alia of nationality.

In its observations the LRTK stated that the decision of 18 May 2016 had been taken on the ground that a programme broadcast on the channel NTV Mir Lithuania contained false information which incited hostility and hatred based on nationality against the Baltic States concerning the collaboration of Lithuanians and Latvians in connection with the Holocaust and the allegedly nationalistic and neo-Nazi internal policies of the Baltic countries, policies which were said to be a threat to the Russian national minority living in those countries. That programme was addressed, according to the LRTK, in a targeted manner to the Russian-speaking minority in Lithuania and aimed, by the use of various propaganda techniques, to influence negatively and suggestively the opinion of that social group relating to the internal and external policies of public of Lithuania, Estonia and Latvia, to accentuate the divisions and polarisation of society, and to emphasise the tension in the Eastern European region created by Western countries and the RussianFederation’s role of victim.

On that basis, a measure such as that at issue must be regarded as pursuing, in general, a public policy objective.

Moreover, the LRTK and the Lithuanian Government stated in their written observations that the decision of 18 May 2016 governs exclusively the methods of distribution of NTV Mir Lithuania to Lithuanian consumers. At the same time, it is common ground that the decision of 18 May 2016 does not suspend or prohibit the retransmission of that channel in Lithuanian territory, since, despite that decision, it can still be distributed legally in that territory and Lithuanian consumers can still view it if they subscribe to a pay-to-view package.

Consequently, a measure such as that at issue does not restrict the retransmission as such in the territory of the receiving Member State of television programmes from another Member State of the television channel to which that measure is directed. The Court therefore concludes that such a measure is not covered by the directive.

The Greek legislation prohibiting a monk who has the status of lawyer in another Member State from registering at the bar, on account of the incompatibility between the status of monk and the profession of lawyer, is contrary to EU law

On 12 June 2015, Monachos Eirinaios (Monk Irenaeus), a monk at the Holy Monastery of Petra which is in Karditsa (Greece), requested the Dikigorikos Syllogos Athinon (Athens Bar Association,Greece; ‘the DSA’) to enter him on the special register of the Athens Bar as a lawyer having acquired that professional status in another Member State, namely in Cyprus. The DSA rejected the application on the basis of the national provisions relating to the incompatibility between practice of the profession of lawyer and the status of monk, taking the view that those provisions also apply to lawyers wishing to practise in Greece under their home-country professional title. Monachos Eirinaios challenged that decision before the Symvoulio tis Epikrateias (Council of State, Greece).

It was in that context that the Symvoulio tis Epikrateias asked the Court of Justice whether the prohibition on a monk of the Church of Greece being registered as a lawyer with the competent authority of a Member State other than that in which he obtained his professional qualification, in order for him to practise in that Member State as a lawyer under his home-country professional title, is compatible with EU law.

In today’s judgment, the Court interprets Directive 98/5/EC, the purpose of which is to facilitate practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained. The Court notes that the directive establishes a mechanism for the mutual recognition of the professional titles of migrant lawyers wishing to practise under the professional title obtained in the home Member State, harmonising fully the preconditions for exercise of the right of establishment conferred by the directive.

Thus, the Court has already held that the presentation to the competent authority of the host Member State of a certificate attesting to registration with the competent authority of the home Member State is the only condition to which registration of the person concerned in the host Member State, enabling him to practise there under his home-country professional title, may be subject. The national legislature cannot add further conditions to the preconditions for registration with the competent authority of the host Member State. Indeed, a distinction should be drawn between, on the one hand, registration with the competent authority of the host Member State, which is subject solely to the condition of presentation of a certificate attesting to registration with the competent authority of the home Member State, and, on the other, the practice itself of the profession of lawyer in the host Member State, in respect of which the lawyer is subject to the rules of professional conduct applicable in that Member State.

The Court finds that rules of professional conduct, unlike those concerning the preconditions for registration, have not been harmonised and may therefore differ considerably between the home Member State and the host Member State. In that regard, the Court states that it is permissible for the national legislature to prescribe such guarantees provided that the rules laid down for that purpose do not go beyond what is necessary in order to attain the objectives pursued.

The Court points out, however, that, in order for the rules of professional conduct applicable in the host Member State to be in compliance with EU law, they must in particular comply with the principle of proportionality, which means that they are not to go beyond what is necessary in order to attain the objectives pursued. It is for the Symvoulio tis Epikrateias to carry out the necessary checks in respect of the rule regarding incompatibility at issue.

The Court concludes that national legislation which prohibits a monk who has the status of lawyer, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practise there under his home-country professional title is contrary to the directive.

 

CLAIMS ON GROUNDED BOEING 737 MAX 800 & 900

The recent Air Ethiopia tragic accident has resulted to the grounding of some 370 Boeing 737MAX practically worldwide. Amid growing concerns about the airworthiness of the specific airplane type, thousands of passengers are suffering a sudden change of plan on their scheduled travels and airlines are faced with hard rescheduling and heavy losses. Investors are also suffering great losses. In view of all this our law firm through its specialized Global Justice Network (GJN)  is already exploring means of legal compensation in several jurisdictions including but not limited to the U.S., Canada , E.U. Today on March 14,2019 we held our first teleconference with U.S. E.U. and Canada participants for that matter. One of our affiliated law firms (Keller Rohrback LLP) one of the top US Law firms  is located in Seattle where Boeing's HQ also are.  This helps our centralized approach on the matter to be more effective and efficient. We are looking forward to assist anyone who has suffered material or other losses in any jurisdiction.           

Recent decision of the Swiss Supreme Court on salaries paid in euros

 

on Tuesday,  the Federal Court in Lausanne rule in the favour of two companies in Switzerland who paid their employees in euros. Since it was prevailed for in the contract, it represents a violation of the law to claim a right for compensation after having left the company. 

 

For more informations : 

 

https://www.swissinfo.ch/eng/workers-paid-in-euros-may-not-claim-for-currency-losses/44682624

 

 

Search for assets in a swiss Bank

For those who believe they might be entitled to assets deposited at a bank in Switzerland, there are different options in order to search for an account. 

  1. Either you can contact the bank directly, if you are aware to be entitled to assets at a bank
  2. If the you don’t know in which bank you might have assets, the Swiss Banking Ombudsman prevails the possibility to conduct a search for assets
  3. If you believe that you assets are published on a publication list, there is the possibility to claim it directly on the Internet. 

For more informations, have a look at the Swiss Banking Ombudsman website :

http://www.bankingombudsman.ch/en/dormant-assets/

Automatic exchange of information (AEOI) - First exchange in Autumn 2018

Automatic exchange of information (AEOI)

 Since January 1st, 2007, Switzerland has introduced the AEOI legal foundations. The exchanges will take place under the OECD’s Common Reporting Standards (CRS), which provide for the automatic exchange information automatically. For the first time, data will be exchanged in Autumn 2018, between  37 State members and Switzerland. For swiss citizens who have assets in one of the signatory Member States, the swiss financial institutions will also receive those tax related information. From 2019 onwards, swiss financial institutions will also apply the same reporting duties with the other 41 partner states.

The delegation of Switzerland to the OECD believes that the cross- border tax evasion will be prevented with the help of the global standard, and will allow Switzerland to enhance its strong financial place.

https://www.efd.admin.ch/efd/en/home/themen/wirtschaft--waehrung--finanzplatz/finanzmarktpolitik/automatic-exchange-of-information--aeoi-.html

Important case of the CJEU concerning the prohibition of entry into the territory of a non-EU citizen and family reunification

In a decision of May 8, 2018 (CJEU May 8, 2018, aff C-82/16) the Court of Justice of the European Union ruled that applications for family reunification must be examined even if the non-European citizen, member of the family of an EU citizen, received a "ban on entry into the territory”

In the facts

Several non-European citizens residing in Belgium had received a decision to return to their country, accompanied by a ban on entry into Belgium. This ban was issued for reasons of danger to public order.

Subsequently, they had applied for a residence permit from the Belgian Government in their capacity, for some, as descendants of a Belgian national, for others as parents of a Belgian child, and for and finally, legal cohabiting partner engaged in a stable relationship with a Belgian national. These qualities generate a relationship of dependency that can allow the grant of family reunification. But the Belgian authorities have not taken their request into consideration, prioritizing the entry ban, which can only be removed if a cancellation request is made from abroad.

However, the Aliens Litigation Council found that these people were well established in Belgium. Thus, it asked the Court of Justice of the European Union what it should do with these contentious cases.

The decision of the Court

The Court states that it is a special situation. The persons in question would have to leave the territory of the Union to request an application for the annulment of the entry ban in Belgium.

In addition, the family dependency of the non-EU citizen with an EU citizen would force this EU citizen to leave the EU territory for an indefinite period. This fact could "compromise the useful effect of Union citizenship".

In conclusion, the reasons of public policy which justified a referral decision cannot lead to an automatic refusal to grant family reunification. The services must examine if the person presents "a real, current and sufficiently serious threat to public order" and take into consideration all the circumstances, the best interests of the child and the fundamental rights.

 

 

GLOBAL JUSTICE NETWORK – Athens 2018 CONFERENCE

The Global Justice Network (GJN), a group of international lawyers, of which Maître Kokkinos is an active member, meets this summer in Athens at a major conference to discuss current international legal issues.

This "network" was initiated in 2007 by the firm Lieff Cabrazer Heimann and Bernstein, LLP (LCHB) and gathers together lawyers from around the world with the aim of sharing values and ideas on cross-border legal questions.

This meeting begins with a moment of sharing on Thursday, May 24th, 2018 at a cocktail party at the cafe Benaki Museum in Athens. The Friday morning is devoted to a series of interventions on recent and varied topics such as:

1. Environmental litigation and more particularly "disputes over climate change", discussion moderated by Mr. Vicki Maniati and Melissa J. Simms;

2. Aerotoxis syndrome related to exposure to toxic fumes in airplanes, presented by Bert Luyten (Antwerp, Belgium) & BCV Lex (Bordeaux, France);

3. The opioid crisis and the resulting litigation, by Nigel Taylor and Vicki Maniatis.

After lunch will be discussed other topics and more particularly the various disputes across Europe, animated by Melissa Ferrari. Panel members are Tom Goodhead (England & Wales), David (Czech Republic), Antoinette Chin (Netherlands), Carlos VILLA.

After, a "Round table discussion" is planned to discuss the ongoing legal actions of the GJN (migrant workers and human rights, "Norman Atlantic", Pharmaceutical, litigation financier, vaccines, Victims of terrorism attacks...) The main speakers are Marco Bona and Constantin Kokkinos.

At the end of the day, Stefano Bertone and Melissa Ferraris will talk about the "Truck Cartel Follow-on" and the damage related to it, as well as the involvement of the GJN in this case.

The documentary "Pakistan Factory Fire" will be presented by Forensic Architecture, followed by discussion and possible opportunities for project financing.

The productive day will conclude with a cocktail and dinner at the Acropolis Museum Restaurant.

The members of the GNJ Executive Committee will regroup for a final meeting on Saturday morning. This final exchange will make it possible to establish the assessment of the various progress already made and the next steps to be taken.

Although the collaboration between the various lawyers is daily and ongoing, this conference is an additional way for them to meet and discuss the pending and forthcoming litigations.

For more information: http://globaljusticenetwork.com/

Important judgment of the Court of Justice of the European Union on the compensation of passengers in case of flight delay

The judgment delivered by the Court of Justice of the European Union (“The Court”) on 7 March 2018 handled numerous complex cases (Cases C-274/16, c-447/16 and C-448/16) dealing with the same subject: the compensation of passengers for the delay of a flight and the competent jurisdiction in the case of a dispute appears between the passenger and the airline responsible for the delay.

In all three judgments, the Court pronounces the same decision: The airline which has carried out the first segment of a connecting flight, in a Member State, may be attacked before the courts of the final destination in another Member State. This is the case when the individual flights have been booked for the entire flight and the significant delay on arrival is due to an incident that took place on the first of the flights.

One of the cases concerns passengers who booked connecting flights from Spain to Germany with a German airline (Air Berlin). These reservations covered all entire plane ride. In that judgment, the Court reiterates that Article 5 of the Brussels 1 Regulation does not require the conclusion of a contract between two persons, but it presupposes the existence of a legal obligation freely granted by one person to another and on which the plaintiff's action is based. (CJEU 28 January 2015, Case C-375/13, paragraph 39). Article 3 (5) of Regulation No 261/2004 states that “where an effective air carrier has not entered into a contract with the passenger and he is fulfilling obligations under the regulations, he shall be deemed to act on behalf of the person who entered into the contract with the passenger concerned”.

The first domestic flights in Spain were made by the Spanish airline Air Nostrum which works for Air Berlin. During these flights, a delay occurred and the passengers missed their second flight to Germany and arrived at the final destination 4 hours late.The German courts have been seized by passengers to claim compensation from Air Nostrum under the Air Passenger Rights Regulation[1]. The German judges asked, to the CJEU, to clarify the ambiguous situation and indicate if the provisions of ‘’the Brussels I Regulation”[2] should be apply and if German Courts are competent to rule the dispute.Those provisions indicated that a defendant domiciled in another Member State may be summoned, in a contractual matter and more particularly in the case of supply of services, to the Court of the place where the services were or should have been provided.

In this case, Air Nostrum company must be considered as fulfilling voluntary obligations to passengers; these obligations are based on the air transport contract concluded between Air Berlin and the passengers. The passengers will be able to attack the Spanish company before the German jurisdiction.In another case, it is a Chinese airline which had concluded a contract of carriage including a Berlin-Beijing flight with correspondence in Brussels. The flight to Brussels could not be realized because of a refusal (not justified) of the company. The passenger made a claim for compensation before the German judge.The question is: Does the German Court have jurisdiction to deal with the dispute between the Chinese airline and the passenger?

According to the Brussels 1 Regulation: A person / company domiciled in a Member State may be summoned to another Member State, more specifically to the Member State in which the services were or should have been provided. In this case, the company had its headquarters in China and did not have any branches in the European Union. In this respect, the Court recalls that, if the defendant (in this case, Hainan Airlines) is not domiciled in the territory of a Member State, international jurisdiction is governed by the law of that Member State and not by the law of the Brussels I Regulation. That is to say, it is necessary to look what the national law of each country recommend in order to find the jurisdiction competent to resolve the dispute.

In conclusion, the Court of Justice of the European Union once again clarifies its case law in the area of "air" disputes. In the light of the Brussels 1 Regulation and this new case-law, the rules established are favorable to passengers and may be unfavorable to airlines. These companies will have to be attentive when they deal with so-called "correspondence" flights. If the companies make a mistake, they might have to defend themselves before a Court in another Member State and that would make their defence more complicated.

 


[1]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 delay important of a flight.

[2]Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.