Airlines often cancel bookings when a passenger fails to check in for the outbound flight or an earlier flight segment. Is this practice lawful?
The number of air passengers is growing year after year. According to the Civil Aviation Authority, Polish airports handled about 7.5 million passengers in the first quarter of 2017. Studies predict that this growth trend will continue. There is a lot of talk in the country about building new airports and opening new and more exotic routes. Undoubtedly we fly more often than ever and have grown used to this model of travel. That also means that we experience more flight delays and cancellations.
Many travellers are aware that they are entitled to certain rights in such situations, defined by clear EU regulations. Much of this is thanks to informational campaigns and innovative web services like airhelp.pl, which helps travellers determine and pursue their rights. But the situations faced by passengers are not limited to delayed flights with compensation based on purely mathematical calculations (generally, in the case of a cancelled flight or failure to meet a connecting flight, travellers are entitled to a replacement flight or lump-sum compensation if they reach their destination more than three hours late). Sometimes we are unable to catch the outbound flight, but expect to be able to use the return ticket already purchased. The surprise comes when we learn that because of failure to use the outbound ticket, the return flight is cancelled and we have to purchase another ticket to get home.
How is that possible? On these occasions, the airlines cite their general conditions of carriage. These provisions can vary, but they fall into two types. Primarily, airlines reserve the right to cancel a return ticket or the rest of the itinerary if the passenger does not check in for the outbound flight or an earlier leg. Alternatively, if the passenger misses the first flight, the airline may require the passenger to pay an extra fee for the return flight or further legs of the itinerary, equal to the difference in the price of the flight as part of the original round trip and the one-way fare.
Let’s examine how this works in practice. Assume that we have bought a round-trip ticket from Gdańsk to Paris via Warsaw. If we do not catch the Gdańsk–Warsaw leg but check in for the second leg in Warsaw, the airline may not let us board. It may demand an extra fee or cancel the ticket. The specific result will depend on the fare used in the original ticket. The more flexible the fare, the more changes are allowed, often for a flat fee. But if we bought the cheapest ticket we will probably see our ticket cancelled. The same thing would happen if we missed the Warsaw to Paris leg and took a train instead. When we appear for the return flight from Paris, we will typically be told that we cannot board without buying a new ticket.
These practices strike us as instinctively unfair. Once we have bought our ticket, it should be available to us regardless of which leg of the itinerary we wish to use. Is this practice lawful, and can we be required to pay twice for the return flight?
The problem of cancellation of bookings due to no-shows has not yet been clearly regulated in EU law. European lawmakers originally intended to cover this issue in the Flight Compensation Regulation (261/2004), but for unclear reasons it did not make it into the final version of the regulation. Nonetheless, passengers are not left without legal recourse.
Our experience shows that some no-show clauses are not clearly drafted and do not entitle the carrier to cancel the ticket. So it is important to examine carefully the wording of the clause relied on by the airline. It may prove that the airline has no contractual basis for cancelling the ticket. Moreover, clauses of this type may be prohibited clauses and, as such, would not be binding on passengers.
First: check the exact wording of the no-show clause cited by the carrier. Any ambiguity must be interpreted in the passenger’s favour.
For example, one Polish carrier has a no-show clause reading as follows: “If the passenger failed to inform the carrier about the change of his/her journey plans before commencement of his/her journey and does not use the seat booked for him/her, and the fare applied for the ticket does not allow such changes to be made, the carrier is entitled to cancel bookings made by it for further flight segments.”
It does not follow from this text that the carrier can always cancel bookings for further flight segments if the passenger does not appear for an earlier leg. A literal reading leads to the conclusion that the carrier’s right to cancel the reservation arises when three conditions are all met: (i) the passenger purchased a ticket with a tariff that does not allow changes, (ii) the passenger did not use the booking, and (iii) the passenger failed to inform the carrier of the change in plans. So a passenger holding a ticket at the lowest fare, which does not permit any changes, who is unable to use an earlier leg of the itinerary, should notify the carrier accordingly. That would be sufficient to keep the airline from cancelling the rest of the booking. If the carrier intended to reserve the right to cancel bookings because of a no-show, the clause could be drafted more clearly and unambiguously, for example: “The carrier is entitled to cancel bookings made by it for further flight segments if the passenger failed to use the seat booked for him/her on earlier segments, unless the passenger informed the carrier earlier of the change in travel plans, or the passenger’s ticket was purchased at a fare not permitting such changes.”
Under general canons of contract law, confirmed many times by the Supreme Court of Poland (e.g. in the judgment of 21 February 2013, Case I CSK 408/2), any ambiguity in form contracts is construed against the drafter (in dubio contra proferentem). In practice this means that an unclear clause applied by an airline must be interpreted in the passenger’s favour.
Second: consider whether the clause used by the airline is abusive.
Although EU Regulation 261/2004 ultimately did not prohibit carriers from cancelling tickets for no-shows, contractual clauses reserving this right against consumers may be examined for abusiveness.
Under Civil Code Art. 3851 §1, provisions of a consumer contract not individually agreed with the consumer are not binding on the consumer if they establish the consumer’s rights and obligations in a manner contrary to fair practice, grossly infringing the consumer’s interests. This provision implements EU consumer protection law.
In many European jurisdictions contractual provisions allowing air carriers to cancel a return ticket for failure to use the outbound ticket have been challenged as clauses grossly infringing the consumer’s interests. These findings were not successfully countered by the carriers’ arguments (particularly in the context of cancellation of return bookings) that the ability to cancel bookings for failure to use earlier flight segments was an element of a justified price policy fostering strong competition between airlines. This approach seems correct to us. Airlines are entitled to employ various instruments of pricing policy, but these practices are pursued at the cost of the consumers’ interests, in a manner that is not understandable to them. (For an overview of arguments and EU case law published by public-interest lawyers in 2015, see Boulet et al., “The EU Public Interest Clinic and BEUC Present: Eliminating Airline ‘No-Show Clauses’ in the EU”.)
What to do if the airline cancels our booking?
Unfortunately, these arguments offer little solace when we stand at the gate holding a cancelled ticket and the airline staff do not let us board without buying a new ticket. As a rule, such a one-way ticket purchased just before the flight will be much more expensive than the original ticket. In most instances the passenger has no option but to buy a new ticket to get home. Then, to get their money back, they must seek compensation. The first step is to file a customer complaint. If that is not upheld, the only option is to file suit. In cases of this type, the passenger enjoys certain advantages as a consumer. Firstly, the consumer may use the courts in his or her home country. If an airline offers its services to Polish consumers, under European jurisdictional rules the passenger can have recourse to the courts of the country where he or she resides. Because the amounts being sought are typically not high, the passenger may also use a simplified litigation procedure. In many instances, particularly when the claims are well-documented, the courts can issue an order for payment under a summary procedure. If the airline does not dispute the order, it becomes legally final.
Passengers should consider pursuing their rights through the courts, as Polish courts appear to uphold passengers’ claims in this regard and the proceedings are not especially complicated or expensive. In at least two cases of this type, the Warsaw courts have awarded damages to passengers against a Polish carrier (Warsaw District Court judgment of 10 May 2016, Case II C 3582/15, upheld in the Warsaw Regional Court judgment of 2 February 2017, Case XXVII Ca 51/17; legally final order for payment issued by the Warsaw District Court on 29 August 2017, Case II Nc 4934/17). In Case II C 3582/15, involving the practices of a Polish carrier, the Warsaw District Court found: “It must be stressed that the defendant cancelled the booking for the ticket purchased by the plaintiff for the return flight from Warsaw to Brussels solely because the plaintiff did not use the ‘first segment of the itinerary,’ i.e. the ticket purchased by the plaintiff for the flight ‘in the outbound direction’—from Warsaw to Brussels. Regardless of the terms of the general conditions of carriage (which the defendant did not attempt to defend) it should be pointed out that it is irrational and disloyal toward the consumer to cancel his booking and force him to choose between abandoning the flight he has selected and paid for, or purchasing a new ticket in place of the one already paid for, in a situation where there were empty seats on the plane. In short, without a legal basis, the defendant forced the plaintiff to purchase a ticket … even though the plaintiff had already purchased a ticket for the flight.”
For now it can only be hoped that sooner or later carriers will change their practices—if not because they are required to do so by future legal regulations, then under pressure from passengers. Undoubtedly, clear and understandable rules for using the services of airlines are vital if Polish airports are to continue attracting a growing number of passengers.
Łukasz Lasek, adwokat, Piotr Golędzinowski, legal adviser, Dispute Resolution & Arbitration practice, Wardyński & Partners