Wednesday, 4 September 2024, 12:06
The consumer affairs department of the Andalusian regional government has fined TAP Air Portugal 6,000 euros for cancelling a passenger’s return flight on the grounds that he had not taken the outbound flight. To be specific, the affected passenger, who was a member of Facua Sevilla (a consumer rights association), was unable to fly from Lisbon to Seville because the airline told him that his return flight had been cancelled because he had not taken the outbound flight.
Facua’s response to the airline was to argue over the fairness of the clause that, according to point 3.3.5 of its general conditions, “in the event that you do not show up for a flight without giving us prior notice, we may cancel your reservation(s) for the return or onward journey. However, if you give us prior notice, we will not cancel the reservation(s) for your onward flight(s) and proceed in accordance with the provisions of Articles 3.3.2 and/or 3.3.3.3.”
This type of clause, known colloquially as a ‘no-show’, is included by some airlines in the contract of sale for a return flight so that, if the outward flight is not taken, they are automatically authorised to cancel the return flight.
But is this legal? Well, this is not the only case to be challenged as there was a ruling issued by the Supreme Court in Spain in November 2018 that declared this type of clause in flight contracts to be null and void, which is rather enlightening. The high court ruled that, if the customer uses only some of the legs included in his ticket (for example, the outbound leg is not used, but the return leg is used), this does not cause harm to the airline. On the contrary, it does “represent an imbalance of rights and obligations contrary to good faith, since a consumer who has fulfilled his obligations is deprived of the enjoyment of the contracted service, even if only in part.”
Despite the response, TAP Air Portugal only refunded 215.10 euros of the cost of both the outward and return flights plus 250 euros in compensation, but Facua Sevilla decided to go one step further and file a complaint with the Junta’s consumer affairs department for violation of consumer rights.
As Facua puts it in its statement on the matter, the relevant department of the Junta, in response to the complaint, imposed a fine of 10,000 euros on TAP Air Portugal “by confirming that it has committed a serious infringement by introducing unfair clauses in contracts.” The fine was reduced by 40% to 6,000 euros after the airline acknowledged its responsibility in the facts and paid the fine before the final resolution of the case. TAP Air Portugal has not presented any counter allegations to the sanction imposed, according to Facua Sevilla.
This case argues that, with the cancellation of this passenger’s return flight, the airline violated articles 85.4 and 87.4 of Royal Legislative Decree 1/2007 16 November, which approves the revised text of Spain’s General Law for the Defence of Consumers and Users and other complementary laws, adds the consumer association.
These articles consider unfair terms to be terms which “authorise the trader to terminate a fixed-term contract early, if the consumer and user is not given the same option, or which authorises the [trader] to terminate open-ended contracts within a disproportionately short period of time or without reasonable notice”, as well as “the possibility for the trader to keep the sums paid for services not yet rendered when he terminates the contract himself.”