Getting your rights enforced

Victor Cordina writes:

I follow regularly and with interest your writings in The Times and the answers given. These are a great source of knowledge.

First of all, let me tell you that I work in travel claims handling for a local insurance company. Sometimes I find it difficult to reconcile some of the answers you give on passenger rights. While you state the rights that passengers have when we write to airlines (not only local) for recovery from the airline on behalf of insured clients they keep mentioning that their policy is to give a different amount than that established under EU regulations.

Can you tell me why airlines are allowed to make policies which are inferior to EU regulations?

Why do airlines keep referring clients to insurance companies making them pay the insurance excess fee when it is clearly the airlines' liability?

Why should insurance companies have to open court cases against airlines to recover amounts suffered by insured passengers and cannot make complaints to EU structures directly when airlines do not pay according to EU regulations?

What is the difference between a passenger making a claim directly to the airline and an insurance company making the same claim following a passenger's complaint? Passengers may find it more convenient to let others fight on their behalf but then I believe there should be no difference in treatment. If expenses increase for the insurance company, it is the passenger that ultimately has to pay for it through increases in premium.

The issues raised by the reader are of interest because they go beyond the realm of EU passenger rights. They go to the very heart of the matter, which is the need to respect these rights in the first place and the remedies available when they are breached.

Let me start with the first point, namely the need to respect rights.

Awareness of one's rights is fundamental because if you know your rights then you are more likely to claim what is rightfully yours. But you can hardly do so if you do not even know that your rights have been violated.

Some companies may try to wriggle out of their legal obligations especially in situations where they can hope to take advantage of customers who are not fully aware of their rights or who are caught unawares by the situation at hand.

A few months back, I was myself the victim of denied boarding while abroad. The airline official at check-in told me matter-of-factly that, despite my valid ticket, I would not be able to board the flight because it was over-booked. Then he offered me a seat on the next flight and a coupon for a snack. That's it.

I recall being taken aback and feeling lost for words, trying first to figure out how I would have to change my plans. But the way the airline tried to get out of its obligations got to me and I quickly snapped into action. I stated that in such cases a financial compensation is also due. But the dismissive reply was that I would have to see to that with the airline's office upon arrival at my destination. I refused to play ball and insisted that the problem be sorted out there and then.

It was only because of my insistence that the official suddenly changed tune and coolly opened a drawer slipping out a compensation form, which entitled me to prompt payment there and then. It felt like the staff were trained to first try to make people lump it and only give in if someone insisted. Sure enough a long line of other passengers watching the scene proceeded to get the compensation form.

So the point is that being aware of one's rights is crucial in getting them respected.

But, of course, it also takes companies that are prepared to do their part to provide a good customer service. There are companies and companies.

Let me now come to the issue of enforcement and remedy.

Enforcement requires national authorities which are strong enough to ensure that rights are respected and to deal with complaints submitted by consumers in cases where they are not. National authorities would typically intervene to ensure that companies respect the rights stipulated at law.

I regret to say that, in some areas, our national authorities are still not strong enough and ill-equipped to deal with complaints from the public.

This makes a mockery of the law and of the rights that citizens have earned. National authorities must therefore be strengthened to be in a position to deliver on their responsibilities.

This is where the EU comes in. If the law at stake is an EU law, then the EU has a duty to see that the national authority responsible for enforcement is sufficiently strong to provide an effective remedy. Complaints to the EU often focus on this point rather than on the individual cases as the EU cannot be expected to go into individual complaints that are more appropriately the remit of national authorities (although this is not excluded). Provided that national authorities are strong and able to provide a remedy, then citizens' rights would make strides ahead.

However, there are cases where the situation is not clear cut and national authorities cannot give a definite ruling. It is in such cases that the person who wishes to pursue his claim has no real choice but to take the matter to court. In such cases, one has to go to the national court, not the EU court. And it would be up to the national court to decide who is at fault and to make sure that the law is respected and enforced.

On the basis of the above explanation, let me now reply to each of the four questions posed by the reader.

The answer to the first question is that airlines are not allowed to make policies which are inferior to EU law. If EU law applies, such as in the case of compensation, no company has the right to derogate from it or grant lesser rights.

The answer to the second question is that insurance companies that feel that airlines are consistently reneging on their obligations should not hold back from reporting the matter to the national authorities concerned - the Civil Aviation Department in the case of passenger rights. If the rights at stake are clearly spelt out in the law, then the national authority should be in a position to ensure that they are respected by the airline. If the national authorities give complainants short shrift, then the matter should be reported to the EU, if an EU law is at stake. The EU will see to it that national authorities live up to their obligations and press this point with the respective national government. National governments may themselves be taken to the EU court if national authorities fail their duties under EU law.

As to the third question, there is nothing, as such, that stops companies from reporting a matter to the EU. However, if the issue is one of contention that has not been or that cannot be resolved through the intervention of the national authority, then the national court of law would logically be the place to go. As I said, the EU authorities are more concerned with ensuring that the structures are in place at national level to secure enforcement then to deal with individual cases. It is not the job of the EU authorities to replace national authorities or the national courts.

Finally, as to the fourth question, as such there is no real difference between a passenger and a company making a claim to the airline or to the national authority. Of course, if a passenger is insured and prepared to pay the excess fee, then it is within his rights to shift the claim onto the insurance company, which puts itself into his shoes for all intents and purposes.

In synthesis, therefore, for rights to be adequately respected, you need a greater public awareness, a better disposition on the part of commercial companies to deal with consumer complaints and stronger national authorities adequately equipped to deal with complaints from the public and to ensure that the law is respected by one and all.

Questions to be answered in this column should be e-mailed to contact@simonbusuttil.eu or through www.simonbusuttil.eu.