Who should you make your claim against?

Who is liable for code sharing compensation claims – NEW JUDGMENT FROM VESTRE LANDSRET

Before you make your claim for reimbursement or compensation, you need to find out who to claim against.

In aviation, there is such a thing as “codeshare”.

“Codeshare is when a flight route operated by one airline is also marketed by another airline as if the latter is responsible for the route itself. The intention is to give passengers a greater choice of destinations than a single airline can offer alone.

You may have tried to book a ticket with Air France on a flight that you think is its own (because the route is labeled “AF”, which is the IATA code for Air France). Then, after boarding the plane, you realize it’s actually the airline KLM you’re flying with?

This is an example of codesharing.

But if your flight is canceled, who should you claim compensation from? Is it Air France or KLM?

In a recent decision from the Western High Court, codesharing was involved, as one airline, “A”, had marketed a flight from Bromma to Aarhus on August 9, 2018.

In the passengers’ tickets, Airline A was also explicitly listed under “Airline reference”. However, in the tickets – under “Operated by” – there was also an IATA code for airline “B” (without Airline B’s name being mentioned). It was also found that Flightstats.com registered that the flight was operated by Airline B “on behalf of [Airline A]”.

In the case, lawyer Eva Persoon represented passengers who had filed a lawsuit against Airline A. However, Airline A argued that Airline A should be dismissed as Airline A was not the proper defendant (as the claim should have been brought against Airline B).

The court in Randers ruled in June 2021 and upheld Flyselskabet A’s claim for acquittal, and the case was then brought before the Western High Court by lawyer Eva Persson.

Among other things, it was argued that it cannot be assumed that people without special knowledge of the aviation industry know what “operated by” and “on behalf of” mean or what the IATA code (“identification letters”) for Airline B stands for.

Furthermore, it was argued that the airline tickets were also de facto issued by – and could only have been issued by – Airline A, as the passengers’ e-ticket numbers started with Airline A’s unique airline ID number (3 digits).

During the case, Airline A was asked to explain, among other things, whether Airline A or Airline B had operational responsibility for the flight, including who was responsible for applying for slots and obtaining the necessary permits, and who had the responsibility/risk of selling the flight tickets. However, these requests were never answered, which the Western High Court emphasized in its decision.

The starting point is that claims under the Aircraft Regulation must be brought against the carrier. Aircraft Regulation must be raised against the transporting airline, which is obliged to pay the compensation in accordance with Article 7.

According to Article 2(b) of the Air Regulation, the “operating air carrier” is “an air carrier which performs or intends to perform a flight under a contract with a passenger or on behalf of a legal or natural person having a contract with that passenger”.

In the CJEU judgment of July 4, 2018, C-532/17 (“Wirth and Others”), it is stated in paragraph 18 that the definition “imposes [] two cumulative conditions for an air carrier to qualify as a ‘transporting air carrier’, one relating to the operation of the flight in question and the other to the existence of a contract concluded with a passenger.”

As it was considered documented by the High Court that it was Airline A that had a contract with the passengers, and as Airline A had not responded to the appellant’s requests, it was further assumed that Airline A had the operational responsibility for the flight.

Against this background, the judgment from the Court in Randers was overturned, and the High Court ruled in favor of lawyer Eva Persson’s office that Airline A was liable for payment of compensation in accordance with the Aviation Regulation. Aircraft Regulation.

Flyadvokaten is ready to help you if you are in doubt about who your claim should be made against.