When can making a telephone call be considered an act of writing? A consumer protection focused decision from the Court of Justice of the European Union (CJEU) recently ruled that a complaint made by telephone to an airline about damaged luggage could satisfy the requirement of Article 31 of the Montreal Convention to make a complaint in writing, so long as an editable written record is made of the call.

Background

The Supreme Court of Finland faced a dispute between Finnair and their passenger’s insurer, Keskinäinen Vakuutushtiö Fennia (Fennia), over the cost of damage to baggage following a flight with Finnair between Malaga and Helsinki. After reviewing Finnair’s website, the passenger thought that it could make a complaint over the telephone to itemise items missing from their baggage.

Finnair argued that Fennia’s action must fail because the passenger’s complaint did not comply with Article 31 of the Montreal Convention, which provides that:

“In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage…”; and

“Every complaint must be made in writing and given or dispatched within the times aforesaid.”

The lower appeal court in Finland held that a written complaint had been made. This finding was based on an assessment of Finnair’s website about making complaints, from which apparently a passenger could legitimately believe that a complaint made by telephone was permitted. As such the Court ruled that where the complaint was registered by a representative of the carrier, it met the requirements of a formal written complaint.

The Finnish Supreme Court referred to the CJEU questions of how to interpret Article 31 in the face of a claim where the passenger made their complaint by phone.

CJEU Decision

The CJEU held that a complaint under Article 31 must be made by the passenger in due time and in writing. It also held that it is acceptable to make the complaint using an electronic information system made available by the carrier.

The Court determined that a complaint made by phone could be interpreted as being “in writing” where a representative of the carrier records the complaint in the carrier’s system, saying that Article 31 does not deny assistance to a passenger in making a declaration of loss. This would be valid where:

“the passenger can check the accuracy of the text of the complaint, as taken down in writing and entered in that system, and can, where appropriate, amend or supplement it or even replace it before the expiry of the period laid down by Article 31…”.

The Convention is clear – and the CJEU accepted - that complaints about loss or damage to baggage must be made in writing. It is obviously efficient to use a facility made available through an airline’s website to satisfy that requirement. However, since a complaint made by a telephone call is not in compliance with the passenger’s obligation to complain in writing, the argument made by Finnair was logical.

The decision of the CJEU invokes the principle of consumer protection as a principle of interpretation to justify a purposive approach to Article 31, based on the preamble of the Convention. The Court said that a contrary decision would significantly diverge from the preamble to the Montreal Convention which highlights principles of equity and the importance of protecting consumer interests. The decision effectively recognises the moral case against permitting a carrier to rely on a legal technicality to absolve itself from providing misinformation.

Those familiar with the decisions concerning the drafting and interpretation of EC Regulation 261/2004 on denied boarding, delay and cancellation will recall the Court’s willingness to take a liberal approach to the constraints of language in the name of consumer protection. In this case, that justification has been used to depart from the language of Article 31, which is an unwelcome development.

Leaving aside the fact that the passenger had been compensated by its insurer, and the conflation of ‘recording’ a complaint in writing with ‘making’ one, the new formulation introduces practical obstacles for both passenger and airline. This is because there is no express obligation upon an airline who receives a telephone complaint to respond with a written record. How long should a passenger wait before expiry of the seven day period before returning to the airline to check that the complaint has been properly recorded to see if any amendments or supplements are necessary? The simplest course of action is to tell a passenger to put their complaint in writing, and use a website facility if there is one.

Further reading

Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia decision of the Court of Justice of the European Communities in Case C‑258/16, 12 April 2018.